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

Plaintiff’s Opposition to FEC and DOJ Summary Judgment Motions

and Reply Supporting RTAO’s Motion for

Preliminary Injunction and Summary Judgment

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

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

Richard E. Coleson,* rcoleson@bopplaw.com

Barry A. Bostrom,* bbostrom@bopplaw.com

Kaylan Phillips,* kphillips@bopplaw.com

BOPP, COLESON & BOSTROM

1 South Sixth Street

Terre Haute, IN 47807-3510

812/232-2434 telephone

812/234-3685 facsimile

 *admitted pro hac vice

Lead Counsel for Plaintiff

Case 3:08-cv-00483-JRS Document 145 Filed 11/08/10 Page 1 of 33
Table of Contents

Legal Background. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Statement of Genuine Issues About the Government’s Material Facts. . . . . . . . . . . . . . . . . . . . . . 8

Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

I. Speech-Protective Preliminary-Injunction Standards Should Be Articulated and

RTAO Should Be Granted a Preliminary Injunction.. . . . . . . . . . . . . . . . . . . . . . . . . . . 11

II. Summary Judgment Should Be Entered for RTAO.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

A. The Buckley/Leake Unambiguously-Campaign-Related Analysis Governs,

and the Government’s Assertion that Complacent Scrutiny Applies Is Erroneous.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

B. 11 C.F.R. 100.22(b) Is Vague, Overbroad, Beyond Statutory Authority,

and Void.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

C. FEC’s PAC-Status Policy Is Vague, Overbroad, Beyond Authority, and

Void... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

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Table of Authorities

Cases

Winter v. Natural Resources Defense Council, 129 S. Ct. 365 (2008). . . . . . . . . . . . . . . 11, 12, 17

Bennett v. Spear, 520 U.S. 154 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Broadrick v. Oklahoma, 413 U.S. 601 (1973).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Buckley v. Valeo, 424 U.S. 1 (1976). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-6, 19, 21-26

Citizens United v. FEC, 130 S. Ct. 876 (2010) (“Citizens”). . . . . . . . . . . . . . . . . . . . . . . . . passim

Davis v. FEC, 128 S. Ct. 2759 (2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

FEC v. Christian Action Network, 110 F.3d 1049 (4th Cir. 1997) (“CAN-II”).. . . . . . . . . . . . . . . 5

FEC v. Massachusetts Citizens for Life, 479 U.S. 238 (1986) (“MCFL”). . . . . . . . . . 4, 12, 15, 27

FEC v. Wisconsin Right to Life, 551 U.S. 449 (2007) (“WRTL-II”). . . . . . . . . . . . . . . . . . . passim

First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978). . . . . . . . . . . . . . . . . . . . . . . . . . 16

Gonzales v. O Centro Beneficiente Uniao do Vegetal, 546 U.S. 418 (2006). . . . . . . . . . . . . 11, 12

McConnell v. FEC, 540U.S. 93 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-7, 23

New York Times Co. v. Sullivan, 376 U.S. 254 (1964). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

North Carolina Right to Life v. Leake, 525 F.3d 274 (4th Cir. 2008) (“Leake”).. . . . . . . . . passim

SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Constitutions, Statutes & Regulations

11 C.F.R. § 100.22(a).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

11 C.F.R. § 100.22(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

11 C.F.R. § 100.57.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 9, 19

11 C.F.R. § 114.15.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 19, 26

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2 U.S.C. § 431(17). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5

U.S. Const. amend. I. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

U.S. Const. amend. XIV. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Other Authorities

National Right to Life Committee, Inc., “Most Competitive Races Involving Abortion and/or

Abortion-Related Legislation” (2010), http://nrlc.org/ElectionResults.html . . . . . . . . . . . . 14

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The Federal Election Commission (“FEC”) and Department of Justice (“DOJ”) (collectively

“Government”) argue that RTAO’s challenge to FEC’s alternate express-advocacy definition and

PAC-status enforcement policy is weaker than in 2008 because two claims are mooted and “express advocacy” now only implements disclosure under lowered scrutiny. (FEC-Br. 1.)

Actually, RTAO’s case is stronger. First, RTAO was proven correct about the fact that the

two mooted provisions (11 C.F.R. §§ 100.57 and 114.15) were unconstitutional, and 11 C.F.R.

100.22(b) and PAC-status policy are based on the same vague, overbroad approach rejected as to

the mooted provisions. Second, the opinion holding that RTAO lacked likely merits success on

the remaining claims was vacated and remanded for reconsideration, indicating disagreement

with its analysis. Third, though “independent expenditures” are no longer banned, they still trigger “political committee” status, which imposes burdens that Citizens United v. FEC, 130 S. Ct.

876 (2010) (“Citizens”), pronounced “onerous” and reviewed under strict scrutiny, id. at 898.

Fourth, North Carolina Right to Life v. Leake, 525 F.3d 274 (4th Cir. 2008) (“Leake”), was not

vacated, so its analysis controls. Leake held that Buckley’s unambiguously-campaign-related requirement mandates that (a) the only communications that may be regulated are those containing

magic-words express advocacy or meet the brightline electioneering-communications definition

because only those strike the right balance between free speech and government’s authority to

regulate elections, 525 F.3d at 281-83, and (b) “Buckley’s articulation of the permissible scope of

political committee regulation is best understood as an empirical judgment as to whether an organization primarily engages in regulable, election-related speech,” Leake, 525 F.3d at 287 (citing

Buckley v. Valeo, 424 U.S. 1 (1976)). The Government’s failed to distinguish Leake (FEC-Br.

38) does not eliminate its controlling analysis. Citizens is not carte blanche to regulate beyond the

approved communications identified in Leake, so Citizens’s “8-1 vote” approving disclosure

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meeting the simple electioneering-communications definition means only that disclosure can be

required for electioneering communications, as it may be for magic-words express advocacy, not

that FEC may make up tests that are beyond statutory authority, unconstitutional, and in conflict

with Fourth Circuit decisions. And Citizens in no way overruled Leake on how to determine

“major purpose” for imposing PAC-status.

Regarding a preliminary injunction, the Supreme Court recognized—by granting certiorari,

vacating, and remanding—that this preliminary-injunction motion is not moot because it is capable of repetition yet evading review and that speech-protective preliminary-injunction standards

for core political speech should be stated and applied so that future motions do not fail for lack of

such standards. The irreparable harm of justified self-censorship and loss of speech rights was

adequate for the original preliminary-injunction motion and remains adequate as in any case involving a matter that is not moot because it is capable of repetition yet evading review. If the preliminary injunction motion is not moot, then the irreparable harm on which it was based is not

moot. This Court should grant RTAO’s preliminary-injunction motion, deny the FEC and DOJ

summary-judgment motions, and grant RTAO’s summary-judgment motion.

Legal Background

The Government’s legal background (FEC-Br. 8-15) omits key elements cutting against the

Government’s argument and misconstrues others. Regarding express advocacy, Buckley held two

“expenditure” definitions unconstitutional unless construed to require magic-words express advocacy. 424 U.S at 44 & n.52, 80. The Government omits the second, which has the same operative language as the current expenditure definition and applied to the discovery context. The first

“expenditure” definition regulated expenditures “relative to a clearly identified candidate” and

governed a prohibition. Id. at 41 (citation omitted). It was challenged as unconstitutionally vague.

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Id. at 40. Buckley said “[t]he test is whether the language . . . affords the ‘(p)recision of regulation (that) must be the touchstone in an area so closely touching our most precious freedoms,’”

id. at 41 (citation omitted), construed “relative to” “to mean ‘advocating the election or defeat of’

a candidate,” id. at 42, then held even this clearer construction vague because

the distinction between discussion of issues and candidates and advocacy of 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.

Id. (emphasis added). This dissolving-distinction problem between (a) issue advocacy discussing 1

candidates and (b) advocacy of candidates’ election or defeat required construing the definition to

apply only to “explicit words of advocacy of election or defeat of a candidate,” id. at 43, i.e., to

“expenditures for communications that in express terms advocate the election or defeat of a

clearly identified candidate for federal office.” Id. This required “express words of advocacy of

election or defeat, such as ‘vote for,’ ‘elect,’ ‘support,’ ‘cast your ballot for,’ ‘Smith for Congress,’ ‘vote against,’ ‘defeat,’ ‘reject.’” Id. at 44 n.52.

That saving construction of “expenditure” is the one the Government mentions, though it

ignores the underlying rationale that still controls, i.e., the need for a brightline distinction beBuckley also repeated a warning about the chill of vague language on robust public debate 1

and articulated its rejection of any intent-and-effect test:

“(W)hether words intended and designed to fall short of invitation would miss that mark

is a question both of intent and of effect. No speaker, in such circumstances, safely could

assume that anything he might say upon the general subject would not be understood by

some as an invitation. In short, the supposedly clear-cut distinction between discussion,

laudation, general advocacy, and solicitation puts the speaker in these circumstances wholly

at the mercy of the varied understanding of his hearers and consequently of whatever

inference may be drawn as to his intent and meaning.

“Such a distinction offers no security for free discussion. In these conditions it blankets

with uncertainty whatever may be said. It compels the speaker to hedge and trim.”

Id. at 43 (citation omitted).

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tween issue advocacy discussing candidates and express advocacy of the election or defeat of

candidates. This need continues, both as to ordinary disclosure of “independent expenditures”

and as to the extraordinary requirements imposed by PAC-status triggered by “expenditures.”

The second “expenditure” definition governed expenditures “‘for the purpose of . . . influencing’ the nomination or election of candidates for federal office” federal elections. Id. at 77.

Buckley held this vague and overbroad absent the express-advocacy construction given the other

“expenditure” definition. Id. at 80. The Government’s omission of this construction when discussing Buckley is telling because it applied precisely in the disclosure context—to which the

Government points as license for less precision—and Buckley construed the same operative language as the current “expenditure” definition, 2 U.S.C. 431(9) (“for the purpose of influencing”),

that triggers PAC-status, 2 U.S.C. 431(4) and is the “expenditure” in reportable “independent

expenditures,” 2 U.S.C. 431(17). Thus, in the disclosure context, an “expenditure” definition using “for the purpose of influencing” is unconstitutionally vague and overbroad unless it is construed to apply only to magic-words express advocacy. Moreover, Congress’s post-Buckley use

of “for the purpose of influencing”in an “expenditure” definition is presumed to incorporate

Buckley’s magic-words, express-advocacy construction. See, e.g., McConnell v. FEC, 540U.S.

93, 211 (2003) (“Because our decision in the [FEC v. Massachusetts Citizens for Life, 479 U.S.

238 (1986) (“MCFL”)] case was on the books for many years before BCRA was enacted, we presume that the legislators who drafted [the provision at issue] were fully aware that the provision

could not validly apply to MCFL-type entities.”).

Regarding “independent expenditure,” 2 U.S.C. 431(17), the Government acknowledges that

post-Buckley Congress defined “independent expenditure” to apply only to “expenditures by a

person . . . expressly advocating the election or defeat of a clearly identified candidate.” (FEC-Br.

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8.) This language is taken directly from Buckley, see supra. The Government’s acknowledgment

of Congress’s direct reliance on Buckley necessarily concedes that Congress meant, by the phrase

“expressly advocating,” Buckley’s magic-words express advocacy. Still FEC it relies on 2 U.S.C.

431(17) as authority for 11 C.F.R. 100.22(b) (FEC-Br. 9), which violates both Buckley’s con- 2

struction of a “for the purpose of influencing” “expenditure” definition and the assertion of a

congressional interest only to regulating magic-words expenditures.

The Government acknowledges that the Fourth Circuit has already held subsection (b) unconstitutional (FEC-Br. 9 (citing FEC v. Christian Action Network, 110 F.3d 1049 (4th Cir.

1997) (“CAN-II”))), but attempts to avoid this holding in two erroneous ways. First, it argues that

“Buckley’s ‘express advocacy limitation . . . was the product of statutory interpretation rather

than a constitutional command.’” (FEC-Br. 9 (quoting McConnell, 540 U.S. at 191-92).) The

Government continues: “This construction was imposed because of the vagueness of FECA’s

original statutory text, not because the government’s power was in all cases circumscribed in regulating only a limited number of ‘magic words’ of advocacy.” (FEC-Br. 9.) The Government

 Subsection (a) defines “expressly advocating” as employing magic words. The Government 2

here points to a part of this definition that speaks of “context” and “reasonable meaning” (FECBr. 9), but fails to give the limiting context of “communication of campaign slogan(s) or individual word(s) . . . such as posters, bumper stickers, advertisements, etc. which say ‘Nixon’s the

One,’ ‘Carter ’76,’ ‘Reagan/Bush,’ or ‘Mondale!’” This limiting context indicates that subsection

(a) is no free-wheeling contextual reasonable-meaning test, but rather is limited to express words

that in a very limited, unambiguously-campaign-related context constitute express advocacy of

the sort approved by Buckley. If FEC applies another meaning to subsection (a), then it is also

beyond statutory authority and in conflict with Buckley. Moreover, FEC v. Wisconsin Right to

Life, 551 U.S. 449 (2007) (“WRTL-II”), expressly forbade more than the most basic (as here) reliance on context to interpret communications, id. at 473-74 (Roberts, C.J., joined by Alito, J.;

principal opinion), and restricted its “appeal to vote test,” id. at 469-70 (“an ad is the functional

equivalent of express advocacy only if the ad is susceptible of no reasonable interpretation other

than as an appeal to vote for or against a specific candidate”), to the context of federally defined

“electioneering communications,” id. at 474 n.7, which prevented the test from unconstitutional

vagueness, id. (answering Justice Scalia’s argument that the “appeal to vote” test was

“impermissibly vague”).

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omits the facts that Buckley held that “for the purpose of influencing” is unconstitutionally vague

and overbroad in a statute requiring disclosure of “expenditures,” that Congress included the

same language in the present “expenditure” definition, and that Congress expressly employed

magic-word express-advocacy to define “independent expenditures.” See supra. So even if

Buckley’s express-advocacy test were only a product of statutory construction (it was more because it was an implementation of the underlying, constitutional unambiguously-campaign-related requirement), that construction controls here. Thus, the only “expenditures” or “independent expenditures” for which disclosure may be required under the “for the purpose of influencing” language are those using Buckley’s magic-words express advocacy.

Second, the Government argues that McConnell held that “Congress may regulate not only

express advocacy . . . but also the ‘functional equivalent of express advocacy.’” (FEC-Br. 9

(quoting McConnell, 540 U.S. at 206).) This substitutes what the Court did not hold for what it

did hold—and is wrong. McConnell held that Congress could regulate beyond magic-words express advocacy, but the extent of that approved additional reach was to “electioneering communications,” not to the “functional equivalent of express advocacy.” McConnell only used the “functional equivalent” language in responding to the argument that “the justifications that adequately

support the regulation of express advocacy do not apply to significant quantities of speech encompassed by the definition of electioneering communications.” Id. The Court responded that

“[t]his argument fails to the extent that the issue ads broadcast during the 30- and 60-day periods

preceding federal primary and general elections are the functional equivalent of express advocacy.” Id. This is no holding that FEC may now regulate “the functional equivalent of express

advocacy.” And Congress has enacted no new legislation attempting to regulate “the functional

equivalent of express advocacy.” It has only asserted interests in regulating “independent expendi6

Case 3:08-cv-00483-JRS Document 145 Filed 11/08/10 Page 10 of 33
tures” adopting Buckley’s magic-words express-advocacy language and clearly-defined “electioneering communications.” FEC may not go beyond that statutory authority.

“The functional equivalent of express advocacy” is no free-floating test that FEC may implement (even if it had statutory authority) because: (a) it was only articulated as an analytical point

in connection with communications that meet the electioneering communication definition; (b)

WRTL-II specifically limited what constituted the “functional equivalent of express advocacy” in

limiting the reach of the electioneering-communication prohibition with its appeal-to-vote test,

551 U.S. at 469-70 (“an ad is the functional equivalent of express advocacy only if the ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific

candidate”); (c) WRTL-II made clear that the appeal-to-vote test was only suitable in the context

of the electioneering communication definition, 551 U.S. at 474 n.7; and (d) that appeal-to-vote

test ceased to have any function in campaign-finance law when Citizens overturned the prohibitions of independent expenditures and electioneering communications, 130 S. Ct. at 913.

So what McConnell’s statement means is that “express advocacy” is not the outer limit of

possible regulation under duly-enacted, constitutional legislation, and its application in

McConnell was to approve the interest that Congress had asserted in also regulating “electioneering communications.” It does not mean that FEC has carte blanche to regulate communications in

ways for which Congress has asserted no interest and based on terminology (“for the purpose of

influencing”) that has already been construed to avoid unconstitutional vagueness and overbreadth with the magic-words, express-advocacy construction, in which Congress acquiesced by

enacting Buckley’s language in its “independent expenditure” definition, and which Congress

made no effort to avoid by redefining “expenditure” or “independent expenditure,” choosing instead to add the regulable category of “electioneering communication.”

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Statement of Genuine Issues About the Government’s Material Facts

RTAO does not contest the Government’s Statement of Material Facts, except to note, in

response to No. 9, that RTAO took the “concrete steps” of “creating” the communications and

project plan, of establishing § 527 nonprofit and corporate status, and of pursuing legal protection for its planned activities, all of which is evidenced in the record. Regarding the Government’s “Statement of Genuine Issues Regarding RTAO’s Statement of Material Facts,” the Government correctly “notes that the material disputed issues in this case are legal in nature,” so that

“there are no disputes as to any material facts, and no trial or evidentiary hearing is necessary.”

(FEC-Br. 5.)

However, RTAO responds as follows to the Government’s responses to RTAO’s facts to

highlight some problems. The Government’s responses to RTAO Fact Nos. 3-16 and 19 generally dispute assertions regarding RTAO possibly being deemed a PAC, its communications possibly being regulable, and the reasonable nature of its asserted chill. The underlying legal debate

is, of course, over the way that FEC determines what is an “expenditure” employing 11 C.F.R.

100.22(b) and who is a PAC under its PAC-status enforcement policy. The Government wants to

argue that such determinations are clear, while RTAO argues that the standards are vague and

overbroad. For example, RTAO Fact No. 6 asserts that RTAO could not properly be a PAC because it would lack Buckley’s “major purpose” if it proceeded with planned activities, but the

Government argues that “RTAO has not provided sufficient information to determine . . . ‘major

purpose’” and cross-references a standing argument (FEC-Br. 5, 40). This begs the question because FEC provides no brightline guidance on what it considers when determining PAC-status

and rejects the Fourth Circuit’s brightline test, Leake, 525 F.3d at 287 (“primarily engages in

regulable, election-related speech”). And if the non-magic-words communications at issue here

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are deemed regulable, then the Government might well deem RTAO a PAC for making such 3

communications. This makes real the chill on RTAO’s free speech and association, providing 4

standing. With its assertions, the Government is essentially making a standing argument, but this

Court has already correctly addressed and rejected the Government’s standing arguments (Doc.

77 at 10-16), and the Supreme Court’s vacation of the appellate opinion has implications for the

denial of preliminary injunction, but not for justiciability. Given WRTL-II’s sound rejection of

FEC’s standing arguments, 551 U.S. at 464-65, standing seems well-settled in this similar case.

The Government’s response to RTAO Fact No. 17 asserts its belief that RTAO’s intended

fundraising communication (see RTAO-Br. 7-8 (No. 14) “would not have been a ‘solicitation’

within the meaning of former 11 C.F.R. 100.57 because it does not indicate that the funds received will be used to support or oppose Senator Obama’s candidacy.” (FEC-Br. 6.) But what

“support or oppose” means is the very sort of vagueness problem at issue herein, and some of the

“advertising” and a “radio ad” that the communication said was to be done with funds received

included the Survivors ad that the Government deems to be express advocacy, which surely

would “support or oppose.” And while section 100.57 itself is no longer operative, FEC has not

abandoned the approach of examining such solicitations for indications in determining “major

 FEC deems Survivors express advocacy (FEC-Br. 5), and this Court said Change was ex3

press advocacy (Doc. 77 at 13, 15 n.3), though FEC asserts it is not.

 Moreover, regarding chill and standing, this Court should reaffirm its prior statement: 4

[E]ven with the FEC’s assertions—that Plaintiff’s communication in the ad “Change” does

not fall within the challenged regulations—this Court held that the threat of litigation ‘initiated by a private citizens’ is still a legitimate fear, enough to satisfy the standing requirements. Virginia Society for Human Life v. FEC, 263 F.3d 379 (4th Cir. 2001) (“VSHL”)

(finding that FECA permits private individuals to sue to enforce FECA and this ‘mere

possibility that such a challenge may be brought by a private citizen is enough’ to ‘pose a

very real threat of prosecution.’) Because a private individual could bring a challenge here,

this should be satisfactory for standing.

(Doc. 77 at 13.)

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purpose” for imposing PAC-status.

The Government’s response to RTAO Fact No. 18 disputes whether there is evidence for a

“chill” resulting from a letter from Democracy 21 to DOJ. (FEC Br. 7.) Yet RTAO was in fact

chilled because it did not proceed with its intended communications, and its verified complaint

identified this letter as part of why it was chilled. There is evidence to support this chill.

The Government’s response to RTAO Fact No. 20 disputes RTAO’s statement that it intended to do materially similar ads as being without evidence and “vague, speculative, and ambiguous.” (FEC-Br. 8.) There is nothing vague, speculative, or ambiguous about RTAO stating its

intent to do materially similar future activity or about the concept of materially similar future activity. The assertion of such an intent is recognized by the Supreme Court as preserving cases

such as this from mootness and are accepted as neither vague, speculative, nor ambiguous. See,

e.g., WRTL-II, 551 U.S. at 460 (“WRTL alleged that BCRA’s prohibition . . . is unconstitutional

as applied to “Wedding,” “Loan,” and “Waiting,” as well as any materially similar ads it might

seek to run in the future.”), 463 (finding case justiciable because “WRTL credibly claimed that it

planned on running ‘“materially similar”’ future targeted broadcast ads mentioning a candidate

within the blackout period ” (citation omitted)) (principal opinion).

Argument

This case is on remand of the appeal of two denials of preliminary injunction, which appeal

was remanded for reconsideration in light of Citizens, 130 S. Ct. 876. (RTAO-Br. 1.) If Citizens

supported the decision vacated, there was no need to grant certiorari, vacate the decision, and

remand for reconsideration in light of Citizens. If the need for a preliminary injunction were

moot, there was no need to accept the case, vacate the decision affirming preliminary injunction

denials, and remand for reconsideration of the denial of preliminary injunction appeal. The Su10

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preme Court’s remand was in response to two issues: (1) “[w]hether the First Amendment requires speech-protective preliminary-injunction standards for issue advocacy” and (2) “[w]hether

RTAO had likely success on the merits (and so met the other preliminary-injunction standards)

. . . .” (RTAO-Br. 1.)

 I. Speech-Protective Preliminary-Injunction Standards Should Be Articulated

and RTAO Should Be Granted a Preliminary Injunction.

RTAO has argued the first issue in the certiorari petition (supra), setting out standards governing First Amendment cases that must apply—in addition to the four factors in Winter v. Natural Resources Defense Council, 129 S. Ct. 365 (2008)—in the preliminary-injunction context.

(RTAO-Br. 10-21.) RTAO highlighted the robust protection for issue-advocacy speech and

groups reasserted in WRTL-II, 551 U.S. 449, and Citizens, 130 S. Ct. 876, and how those cases

rejected the sort of vague, overbroad approach FEC has taken with 11 C.F.R. 100.22(b) and its

PAC-status enforcement policy.

The Government argues against articulating and applying speech-protective standards because “[t]he Fourth Circuit had four opportunities . . . to adopt some preliminary injunction standards other than those of Winter, and it has declined to do so every time.” (FEC-Br. 22.) But the

Supreme Court vacated the first judgment (en banc rehearing denied), so apparently the Supreme

Court deemed it incorrect, and it lacks precedential value. The decision on remand (en banc rehearing denied) simply restated the Winter preliminary-injunction standards, leaving to this Court

the remand task of articulating and applying the other speech-protective standards.

The Government concedes that it has the burden of proving that its regulation and policy are

constitutional for the likely-success-on-the merits factor under Gonzales v. O Centro Beneficiente

Uniao do Vegetal, 546 U.S. 418 (2006), by not including that factor with the other three factors

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for which it argues that the burden has not shifted. (FEC-Br. 22-23.) Recognizing that is an important first step in articulating how First Amendment principles apply in preliminary-injunction

litigation so in future cases FEC cannot be heard to argue that this burden lies elsewhere. This

Court should next establish who bears the burden on the other preliminary-injunction factors.

The Government disputes that it bears the burden on the other Winter factors. But the Supreme

Court held that “the burdens at the preliminary injunction stage track the burdens at trial. Gonzales, 546 U.S. at 429 (emphasis added). The plural “burdens” goes beyond what the Government

concedes. And this Court should reaffirm that in free-speech cases the likely-success factor is

decided first because the other preliminary-injunction factors follow from that determination.

(See RTAO-Br. 15-17.) If a provision is likely unconstitutional or beyond statutory authority,

irreparable harm, balance of harms, and public interest are already settled. Preliminary injunctions in free-speech cases turns on likely success, so all the “burdens” fall on the government.

The Government disputes whether “tie[s] go[] to the speaker, not the censor,” WRTL-II, 551

U.S. at 474, insisting this applies only to bans. (FEC-Br. 23.) WRTL-II involved a ban, but its the

ties-to-the-speaker principle was stated more broadly. In establishing speech-protective principles

for issue-advocacy cases, it required that courts “give the benefit of any doubt to protecting rather

than stifling speech. See New York Times Co. v. Sullivan, [376 U.S. 254,] 269-270[ (1964)].” 551

U.S. at 469. Sullivan was not about a ban. PAC burdens (even absent source-and-amount limits)

are “onerous” and can stifle speech. Citizens, 130 S. Ct. at 898. MCFL specifically warned that

[t]hese additional regulations may create a disincentive for such organizations to engage

in political speech. Detailed recordkeeping and disclosure obligations, along with the duty

to appoint a treasurer and custodian of the records, impose administrative costs that many

small entities may be unable to bear. Furthermore, such duties require a far more complex

and formalized organization than many small groups could manage.

479 U.S. at 254-55 (plurality opinion). Self-censorship because of unconstitutionally vague and

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overbroad provisions imposing unwarranted burdens, as here, chills and stifles speech. This

Court should articulate and apply the ties-to-the-speaker principle, along with the principles the

Government does not contest. (See RTAO-Br. 10-21).

The Government argues that RTAO’s remaining claims are “moot because no meaningful

relief can . . . be provided and . . . consolidation . . . renders a preliminary injunction superfluous.” (FEC-Br. 18.) It adds that “RTAO cannot meets its burden of demonstrating that it will suffer irreparable harm,” erroneously asserting that “RTAO repeatedly implies that this regulation

and . . . analysis ban or limit speech,” but the quotes from RTAO’s brief prove it alleged no

“ban.” (FEC-Br. 23 and n.12.) The arguments regarding mootness and harm are ones the Government would have to take up with the Supreme Court, which has already recognized—by granting

certiorari, vacating, and remanding—that this preliminary-injunction motion is not moot because

it is capable of repetition yet evading review and that speech-protective preliminary-injunction

standards for core political speech should be stated and applied so that future motions do not fail

for lack of such standards. The original irreparable harm of justified self-censorship and loss of

speech rights in the light of a likely unconstitutionally vague and overbroad rule and policy were

adequate for the original preliminary-injunction motion and remain adequate as in any case involving a matter that is not moot because it is capable of repetition yet evading review. If the preliminary injunction motion is not moot, then the irreparable harm on which it was based is not

moot. The Government’s cite to a Second Circuit opinion for the proposition that the exception

to mootness for cases capable of repetition yet evading review cannot apply to otherwise moot

preliminary injunction appeals (FEC-Br. 20) only highlights the fact that the Supreme Court did

not consider this appeal moot. The acceptance and remand of this case, in which it was expressly

argued to the Supreme Court that the appeal of the preliminary-injunction denial is not moot be13

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cause it is capable of repetition yet evading review, stands as Supreme Court precedent for the

fact that preliminary injunction motions in cases such as this do not become moot under these

facts because they are capable of repetition yet evade review. That overrules other precedents.

Why are cases that are otherwise moot decided on the basis that they are capable of repetition yet evade review? They are decided so that the law can be established for the next time clear

legal rules are required on short notice. Here, speech-protective application of the preliminaryinjunction standards to issue advocacy must be established so that when RTAO again needs a

preliminary injunction it does not have to face the flawed arguments advanced by FEC (such as

assigning likely-merits-success to the movant) and again be denied free speech rights. That need

is likely to recur for RTAO (or another speaker). RTAO remains in existence. Abortion remains

an issue hotly in debate, including in the 2010 election, see, e.g., http://nrlc.org/ElectionResults.html (National Right to Life Committee, Inc.’s “Most Competitive Races Involving Abortion and/or Abortion-Related Legislation”), which undoubtedly will remain true in 2012. President Obama remains a public figure whose views on abortion remain important, and it is highly

likely that he will be a candidate in 2012.

The Government’s argument that RTAO’s intent to run materially similar future ads is too

speculative and might preclude standing (FEC-Br. 20 n.8), does not square with WRTL-II’s rejection of just such an FEC argument, 551 U.S. at 460 (“WRTL alleged that BCRA’s prohibition

. . . is unconstitutional as applied to “Wedding,” “Loan,” and “Waiting,” as well as any materially

similar ads it might seek to run in the future.”), 463 (“WRTL credibly claimed that it planned . . .

‘“materially similar”’ future targeted broadcast ads mentioning a candidate within the blackout

period” (citation omitted)) (principal opinion). The notion that litigation well in advance of a

coming election is speculative does not square with “[t]he FEC conten[tion] that the 2-year win14

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dow between elections provides ample time for parties to litigate their rights before each BCRA

blackout period.” Id. at 462. If litigation well in advance of the next election is too speculative,

FEC’s contention in WRTL-II posited a meaningless option. FEC can’t have it both ways.5

The Government argues that RTAO would have no harm if it would just be a PAC! (FECBr. 24.) This ignores the pronouncement that PAC burdens, even absent source-and-amount limitations, are “onerous.” Citizens, 130 S. Ct. at 898. See WRTL-II, 551 U.S. at 477 n.9 (“PACs impose well-documented and onerous burdens, particularly on small nonprofits.” (citing MCFL,

479 U.S. at 253-255 (plurality opinion))). And PAC burdens are “onerous” and do not adequately

protect free speech rights for groups not properly PACs, Citizens, 130 S. Ct. at 898, regardless of

whether RTAO alleged threatened reprisals for persons disclosed. (See FEC-Br. 25.)

The Government argues that SpeechNow.org v. FEC, 599 F.3d 686, 697 (D.C. Cir. 2010),

upheld PAC burdens for political committees making only independent expenditures. (FEC-Br.

25-26.) The italicized words, “political committees,” readily dismisses this argument. The court

held that PAC burdens are not unconstitutionally burdensome for PACs. For groups not properly

PACs, those burdens are “onerous,” supra, and RTAO does not believe it should be deemed a

PAC, though it is at risk for being deemed so under FEC’s vague and overbroad independent -

 The Government suggests that RTAO provides only conclusory allegations of chilled 5

speech and insists that irreparable harm for loss of speech is cognizable only with a speech ban.

(FEC-Br. 24.) Chill has long been recognized as a cognizable First Amendment harm, and RTAO

was in fact chilled. It did not speak prior to the 2008 election when interest in its issue was high.

The Government’s effort to dodge this case on justiciability and downplay RTAO’s harm are

reminiscent of its similar effort in WRTL-II, where it argued “these cases are moot because the

2004 election has passed and WRTL ‘does not assert any continuing interest in running [its three]

advertisements, nor does it identify any reason to believe that a significant dispute over Senate

filibusters of judicial nominees will occur in the foreseeable future.’” 551 U.S. at 462 (citation

omitted). It asserted that “in order to prove likely recurrence of the same controversy, WRTL

must establish that it will run ads in the future sharing all ‘the characteristics that the district

court deemed legally relevant.’” Id. at 463 (citation omitted). As the Supreme Court said then,

and this Court should say now: “The FEC asks for too much.” Id.

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expenditure definition and PAC-status policy.

The Government argues that administrative burdens do not constitute irreparable harm because compensation might be available. (FEC-Br. 26.) Will Defendants compensate RTAO for

PAC burdens if RTAO is improperly deemed a PAC? No. Is there any mechanism to force such

compensation? No. RTAO can’t even get attorneys fees under 42 U.S.C. 1988 if it is a prevailing

party as it could if state action were at issue. The chill of a vague and overbroad rule and policy,

resulting in self-censorship and loss of speech are the irreparable harms at issue. And RTAO

would suffer the harm of enforcement and penalties if it proceeded without compliance with the

challenged rule and policy that it deems unconstitutional.

The Government says RTAO’s chill is nothing but “amorphous fears [that] are not imminent

or otherwise sufficient” for irreparable harm. (FEC-Br. 27.) It seeks to dismiss, as threatening no

harm to RTAO, the DOJ’s letter stating its intent to enforce campaign-finance laws against 527

organizations and FEC’s own enforcement actions against 527s, based on the rule and policy

here challenged. (FEC-Br. 27.) The answer is the same one the Supreme Court gave FEC in response to FEC’s similarly tenuous arguments on standing in WRTL-II: “there is no reason to believe that the FEC will ‘refrain from prosecuting violations,’” 551 U.S. at 463 (citing First National Bank of Boston v. Bellotti, 435 U.S. 765, 775 (1978)). Defendants have not indicated they

would refrain from prosecution. They defend here to permit to continued enforcement of the

challenged rule and policy. Until DOJ withdraws its letter and FEC repeals its rule and policy,

RTAO’s fears remain real and concrete.

Regarding balance of harms and public interest, the Government asserts the very interests

that are invalid if there is likely success that First and Fourteenth Amendment rights are being

violated. (FEC-Br. 27-29; RTAO-Br. 41-43.) This underscores the need for clear articulation and

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affirmation of speech-protective standards in the preliminary-injunction context, including what

interests are not cognizable where there is likely merits success on a free-political speech and

association claim. (See RTAO-Br. 12-21.) For example, it should be made clear that in the face

of a likely free speech and association violation, the Government has no cognizable interest in

enforcement; no alleged confusion, lack of information, or lack of public confidence is cognizable; and any allegation of confusion and the like must be the result of rigorous government proof,

not speculation. (RTAO-Br. 12-21, 41-43.) That is the point of constitutional rights. These 6

speech-protective principles must be applied here, but they should also be clearly articulated to

provide prompt, proper resolution the next time there is a preliminary injunction motion with a

likely violation of constitutional speech rights.

Regarding consolidation, RTAO has explained the sound reasons for filing motions both for

preliminary injunction and summary judgment and asking for a consolidation of the hearings (not

the decisions) with an issuance of the preliminary injunction first, followed by a summary judgment ruling. (RTAO-Br. 1-2.) The preliminary injunction ruling is important because central to

RTAO’s claims and the remand is the need for clearly articulated, speech-protective, preliminary

injunction standards to protect RTAO’s future issue activity. Proper standards will preclude the

 The Government even converts one of RTAO’s arguments to a different one by ellipses. 6

RTAO asserted that “[t]he Government also must prove its interests, e.g., that the public-interest

would be served by denying the preliminary injunction because a ‘wild west’ scenario is likely to

ensue. The government must provide proof, not speculation.”(RTAO-Br. 18-19 (providing authorities)) The Government converts this to an argument that “the government ‘must prove . . .

that the public interest would be served by denying the preliminary injunction,” and argues that

this is plaintiff’s duty, citing Winter. (FEC-Br. 28.) Who has what burdens as to this preliminaryinjunction factor has been addressed, supra at 11-12, and since Winter was not a First Amendment case—where burdens shift—it does not resolve who has the burden on this factor. But the

point of the argument was that in balancing harms both sides advance interests, and the government clearly must prove its interests, not offer mere speculation. The Government’s sleight of

hand in changing RTAO’s argument does not refute it.

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Government from arguing incorrect things it argued before (e.g., that proximity to an election

lowers instead of raising the need to protect issue advocacy) and will assure that the Government

bears its rightful burdens—all of which is a non-moot, ongoing need that can only be met in a

preliminary inunction setting. After preliminary injunction is decided, under the remand instructions, summary judgment can be decided without affecting the preliminary injunction.

II. Summary Judgment Should Be Entered for RTAO.

The Government asserts that “RTAO’s constitutional challenges have less merit now than

they did when this Court and the Fourth Circuit found that RTAO was unlikely to succeed on the

merits.” (FEC-Br. 29 (emphasis added).) The reverse is true, and RTAO also asserts a statutory

authority challenge that remains equally strong. If the Supreme Court had believed those decisions to be correct, it would have denied certiorari. Grants of certiorari are exceedingly rare because the Court receives myriad requests and, by necessity and choice, limits grants of certiorari

to the most meritorious. So the grant of certiorari—for unprecedented review of a preliminary

injunction appeal—recognized the merits of RTAO’s claims precisely because of Citizens, in the

light of which reconsideration was ordered. In its opening brief, RTAO explained the reasons

why Citizens means that preliminary injunction and summary judgment should be granted to

RTAO. (RTAO-Br. 11-12, 26-35, 40-41.) And since the certiorari grant vacated the judgment

below, it by implication vacated this Court’s parallel analyses, so the Government’s repeated reliance on what was decided before is improper. The Supreme Court disagreed with the analyses in

the Fourth Circuit (and so also here) or it would have simply denied certiorari. Of course, the

grant of certiorari was based on a view of the preliminary injunction appeal as not moot (RTAO

clearly argued that it was not moot because it was capable of repetition yet evading review

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(RTAO-Br. 3 n.2)), so prior analysis finding justiciability may be reissued, just as the Fourth 7

Circuit reissued Parts I and II of its prior opinion. In any event, Citizens by reason of the remand

instruction works in RTAO’s favor, and should be so applied, not in the Government’s favor.

A. The Buckley/Leake Unambiguously-Campaign-Related Analysis Governs, and the Government’s Assertion that Complacent Scrutiny Applies Is Erroneous.

In its opening brief, RTAO established that the constitutional scrutiny must be strict because,

inter alia, provisions imposing PAC status have always been reviewed under strict scrutiny and

Citizens reviewed the “onereous” PAC-style burdens under strict scrutiny. (RTAO-Br. 22-23). In

8

any event, the unambiguously-campaign-related requirement controls this case (RTAO-Br. 23-

26), which Buckley articulated precisely in the “disclosure” context under “exacting scrutiny” to

an “expenditure” definition employing the same operative language (“for the purpose of influencing:) as the current “expenditure” definition. See infra. And 11 C.F.R. 100.22(b) is beyond statutory authority (RTAO-Br.28-35), which analysis does not vary with any level of scrutiny, and the

same is true of RTAO’s vagueness challenges.

The Government seeks to sweep the whole analysis here into a complacent exacting scrutiny

 The Supreme Court remand order to “reconsider[] in light of Citizens . . . and the Solicitor 7

General’s suggestion of mootness,” 130 S. Ct. 2371, applied only to the mootness of 11 C.F.R.

§§ 100.57 and 114.15. (RTAO-Br. 1-3.)

Citizens did not limit its “onerous” pronouncement to PAC-style burdens involving source- 8

and-amount limitations. In fact it made no mention of such limitations when it itemized PACstyle burdens and pronounced them “onerous.” See 130 S. Ct. at 897-98 (listing appointment of a

treasurer, detailed recordkeeping, regular reports, the need to organize before speaking, etc. but

not source-and-amount restrictions before pronouncing these restrictions “onerous”). Thus, this

list of burdens is what the Court meant when it said that “PACs are burdensome,” id. at 897, and

that “[l]aws that burden political speech are ‘subject to strict scrutiny,’ which requires the Government to prove that the restriction ‘furthers a compelling interest and is narrowly tailored to

achieve that interest.’” 130 S. Ct. at 898. So the burden that was onerous and required strict scrutiny is just the sort of burden at issue here, regardless of whether there remains a corporate prohibition on independent expenditures.

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based on the notion that only mere disclosure is at issue. And it erroneously seeks to lower stan- 9

dards and to shift burdens to RTAO that the Government must bear. (FEC-Br. 29-32.)

This case is in the Fourth Circuit. Yet one would barely know it from reading the Government’s brief. The Fourth Circuit set out a careful analysis in Leake, 525 F.3d 274, that controls

this case. Leake established and employed, id. at 281-83, the analysis the Supreme Court articulated to determine the breadth of disclosure permissible under an “expenditure” defined as “for

the purpose of . . . influencing.” Buckley, 424 U.S. at 77, 80. In considering compelled disclosure, Buckley said that it required “exacting scrutiny” and that the Court “also . . . insisted that

there be a ‘relevant correlation’ or ‘substantial relation’ between the governmental interest and

the information required to be disclosed.” 424 U.S. at 64 (emphasis added; footnotes omitted).

This was no complacent review because Buckley called it “[t]he strict test” that “is necessary because compelled disclosure has the potential for substantially infringing the exercise of First

Amendment rights.” Id. at 66. Moreover, in applying this “strict test” and “substantial relation”

requirement in the specific context of compelled disclosure of “expenditures” defined, as in the

present case, as “for the purpose of . . . influencing”), Buckley held two things that control this

case. First, requiring disclosure of such “expenditures” by “political committees” would be constitutionally permissible only if “political committee” is limited to candidate-controlled groups

and those with “the major purpose of . . . nominating or electing candidates” because

 To the extent “exacting scrutiny” applies to the constitutional analysis here, Davis v. FEC,

9

128 S. Ct. 2759 (2008), held that under exacting scrutiny “the strength of the governmental interest must reflect the seriousness of the actual burden on First Amendment rights,” id. at 2775.

Since PAC-style burdens are “onerous,” Citizens, 130 S. Ct. at 898, even under exacting scrutiny

there must be high-level scrutiny that operates as the functional equivalent of strict scrutiny. The

challenged rule and policy are readily unconstitutional under exacting scrutiny because they differ sharply from the simple disclaimer and one-time reports upheld as disclosure for electioneering communications under exacting scrutiny in Citizens.

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“[e]xpenditures of candidates and of ‘political committees’ so construed . . . are, by definition,

campaign related,” 424 U.S. at 79 (emphasis added). Second, disclosure by non-PAC entities

must be limited to magic-words express advocacy to assure that the reach of the disclosure is not

“too remote” or “impermissibly broad” but “is directed precisely to that spending that is unambiguously related to the campaign of a particular federal candidate,” id. at 80 (emphasis added).

Because Buckley employed the unambiguously-campaign-related requirement to avoid the reach

of disclosure being “impermissibly broad,” id. (emphasis added), this requirement may be termed

Buckley-overbreadth.

Leake, 525 F.3d 274, held that Buckley-overbreadth mandates two things that directly control

this case. First, the only communications that may be regulated are those containing magic-words

express advocacy or meet the brightline electioneering-communications definition because only

those strike the right balance between free speech and government’s authority to regulate elections. Leake, 525 F.3d at 281-83. Second, “Buckley’s articulation of the permissible scope of political committee regulation is best understood as an empirical judgment as to whether an organization primarily engages in regulable, election-related speech.” Id. at 287.

The Government’s superficial attempt to distinguish Leake (FEC-Br. 38) does not eliminate

the fact that Leake’s analysis controls this case. Leake was not the decision vacated by the Supreme Court. Citizens did not moot Leake but affirmed its requirement of unambiguous lines for

regulating core political speech. Simply applying Leake’s controlling analysis will result in preliminary injunction and summary judgment for RTAO.

Moreover, the Government confuses Buckley-overbreadth with the First Amendment

overbreadth doctrine commonly associated with Broadrick v. Oklahoma, 413 U.S. 601 (1973),

whereby provisions are struck facially if they sweep in a substantial amount of protected speech.

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(See FEC Br. 29-30). The Government thereby attempts to assign RTAO the burden of proving

substantial overbreadth to achieve a facial invalidation of the challenged rule and policy. But

Buckley-overbreadth is a threshold analysis that the Government must prove. (RTAO-Br. 20, 25-

26.) And under Buckley-overbreadth a provision is facially unconstitutional for being “impermissibly broad,” Buckley, 424 U.S. at 79, unless given a saving construction. Here, Buckley has already provided saving constructions of “expenditure” for disclosure by PACs and non-PACs, and

FEC has created the rule and policy challenged here to reach beyond those approved constructions, so the rule and policy are facially unconstitutional. Furthermore, because the rule and policy are unconstitutionally vague, they are facially invalid unless they can be given a saving construction. The enforcement policy may be saved from facial invalidation by imposing a proper

construction to comply with Leake, but the rule may not. Because 11 C.F.R. 100.22(b) exceeds

statutory authority, supra at 19, it is void on its face.

 B. 11 C.F.R. 100.22(b) Is Vague, Overbroad, Beyond Statutory Authority, and Void.

The Government insists that “exacting scrutiny” governs here because subsection (b)

“merely provides a definition of express advocacy” without imposing a “direct restraint on

speech.” (FEC-Br. 30.) This is wrong. See supra at 19-20. (See RTAO-Br. 22-23). FEC’s alternate express-advocacy definition is beyond statutory authority because Buckley already construed an “expenditure” definition, in the disclosure context, with the same operative language

as the current definition, i.e., “for the purpose of influencing,” as requiring magic-words express

advocacy. See supra at 21. Congress enacted a new “expenditure” definition with the same operative language, in full knowledge of Buckley, and thereby acquiesced in Buckley’s construction

that only magic-words, express-advocacy “expenditures” defined with “for the purpose of influ22

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encing” are subject to disclosure. See supra. Congress adopted Buckley’s express-advocacy language in “independent expenditure,” as the Government concedes, and thereby imported the

magic-words construction of “expressly advocating” into that definition. See supra at 7. So FEC

may not cite, as it does, the magic-words “independent expenditure” definition at 2 U.S.C.

431(17), as authority for its non-magic-words definition of “expressly advocating” at 11 C.F.R.

100.22(b). The rule is beyond statutory authority regardless of scrutiny level.

The Government makes no effort to refute what Buckley and Congress did with regard to

requiring “expenditure” disclosure using the “for the purpose of influencing” formulation. It

cannot. So it argues instead that this statutory argument “was laid to rest in McConnell and Citizens United.” (FEC-Br. 34.) The Government argues that “McConnell held that Buckley’s ‘express advocacy limitation . . . was the product of statutory interpretation rather than a constitutional command.’” (FEC-Br. 35 (citation omitted).) But that concedes the statutory authority

point here. McConnell acknowledged that a “for the purpose of influencing” “expenditure” definition requires express advocacy and also held that Congress could regulate “electioneering communications.” But that is no statutory authority to regulate “expenditures” or “independent expenditures” more broadly. Indeed, Congress understood that because it made no effort to alter

those definitions, instead introducing newly-defined “electioneering communications.” So

McConnell overturned no case, such as VSHL, 263 F.3d 379, holding that Buckley restricted

such “expenditure” disclosure to magic-words express advocacy. And the holdings in

McConnell and Citizens that the government may also regulate “electioneering communications” changes none of the facts about the extent of the “expenditures” subject to disclosure under a “for the purpose of influencing” formulation that has already been narrowly construed to

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save it from unconstitutional vagueness. And finally as to statutory authority, the Government

attempts to evade the clear statements by all Supreme Court Justices that express advocacy requires magic words, instead quoting the principal opinion’s statement about whether the ex10

press advocacy test would be required “divorced from specific statutory language.” (FEC-Br. 36

(quoting WRTL-II, 551 U.S. at 474 n.7).) But that actually supports the argument that where two

“expenditure” definitions share the “specific statutory language,” i.e., “for the purpose of influencing,” the saving construction of the first is required of the second, especially where Congress

expressly incorporates Buckley’s holding into its “independent expenditure” definition.

FEC’s alternate express-advocacy definition is unconstitutionally vague and creates unconstitutional vagueness. Buckley construed an “expenditure” definition, in the disclosure context,

to avoid unconstitutional vagueness with the operative language “for the purpose of . . . influencing” by requiring express advocacy. See supra. So that same language is unconstitutional in the

current “expenditure” definition unless construed, as this same context and Buckley require, to

apply only to magic-words express advocacy. See supra. And the “expenditure” in the “independent expenditure” definition is unconstitutionally vague absent the magic-words express-advocacy construction. See supra. When Congress passed its “independent expenditure” definition, it was everyone’s understanding that it applied only to non-coordinated “expenditures” for

magic-words express advocacy. See supra. When FEC promulgated 11 C.F.R. 100.22(b), it rein-

 The Citizens dissent said: “[T]here has been little doubt about what counts as express ad- 10

vocacy since the ‘magic words’ test of Buckley v. Valeo,” 130 S. Ct. at 935 n.8 (Stevens, J.,

joined Ginsburg, Breyer & Sotomayor, JJ.). See also id. at 956 (equating express advocacy with

“magic words”). In WRTL-II, all Justices in the principal, concurring, and dissenting opinions

equated “express advocacy” with “magic words.” See 551 U.S. at 474 n.7 (Roberts, C.J., joined

by Alito, J.), 495 (Scalia, J., joined by Kennedy & Thomas, JJ.), 513 (Souter, J., joined by

Stevens, Ginsburg & Breyer, JJ.).

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troduced the vagueness in the “expenditure” and “independent expenditure” definitions that

Buckley had removed with the express-advocacy construction for the same operative “expenditure” language. And the operative language that 11 C.F.R. 100.22(b) uses, which the Government likens to WRTL-II’s appeal-to-vote test, 551 U.S. at 469-70, (FEC-Br. 32-34), was defended in the WRTL-II principal opinion against Justice Scalia’s accusation of vagueness on

bases that conclude with this: “And keep in mind this test is only triggered if the speech meets

the brightline requirements of [the electioneering communication definition] in the first place.”

551 U.S. at 474 n.7. The Government says that WRTL-II held that the appeal-to-vote test is not

vague, citing this footnote (FEC-Br. 34), but it omits the necessary fact that the test is not vague

if anchored to the electioneering-communication definition. If used as a free-floating test, it is

unconstitutionally vague.

FEC’s alternate express-advocacy definition violates the unambiguously-campaign-related

requirement, i.e., Buckley-overbreadth. The Fourth Circuit has clearly held that only two types

of regulable communications satisfy this requirement, magic-words express advocacy and communications that both meet the electioneering-communication definition and contain an “appeal

to vote” under WRTL-II’s test. Leake, 525 F.3d at 281-82. Whatever might apply in other circuits, this holding is conclusive and controlling here. The Government attempts to equate

Buckley-overbreadth with the use of the word “unambiguous” in 11 C.F.R. 100.22(b) (requiring

that “[t]he electoral portion . . . [be] . . . unambiguous”). (FEC-Br. 36-37.) The argument is selfevidently erroneous, and RTAO has already answered it. (RTAO-Br. 25 n.21.) The Government

attempts to distinguish Leake’s striking of a “non-magic words express advocacy” statute on

several grounds (FEC-Br. 38), but this ignores the plain statement of Leake that only magic25

Case 3:08-cv-00483-JRS Document 145 Filed 11/08/10 Page 29 of 33
words express advocacy and appeal-to-vote electioneering communications may be regulated

under the unambiguously-campaign-related requirement. Supra. Any case may be distinguished

on superficial grounds, as the Government attempts here, but the plain analysis of Leake controls. That analysis says essentially that there are two benchmarks against which definitions of

regulable speech may be measured, and if they fail to measure up, they are unconstitutional.

Section 100.22(b) does not measure up.

Finally, the Government argues that RTAO does not allege that it or its members will suffer

reprisals. (FEC-Br. 38.) Such allegations would only apply to a “blanket exemption” to an otherwise valid disclosure provisions. Buckley, 424 U.S. at 72-74. But 11 C.F.R. 100.22(b) is not an

otherwise valid disclosure provision from which RTAO needs a blanket exemption. It is an invalid provision that may not be imposed on anyone, whether or not they might suffer reprisals.

In sum, section 100.22(b) was invalid before Citizens, as this Circuit has held, but the Supreme Court’s utter repudiation in Citizens of FEC’s similar overreaching effort to regulate issue advocacy in 11 C.F.R. 114.15 (previously challenged here) clearly reveals that the same approach cannot be tolerated regarding section 100.22(b). (See RTAO-Br. 11-12, 26-35.)

 C. FEC’s PAC-Status Policy Is Vague, Overbroad, Beyond Authority, and Void.

In its opening brief, RTAO established that strict scrutiny applies to the imposition of PACstatus and PAC-style burdens (RTAO-Br. 36), that the unambiguously-campaign-related requirement applies (RTAO-Br. 36), that there is a permissible way to determine major purpose

(RTAO-Br. 36-39), that FEC impermissibly determines major purpose (RTAO-Br. 39-40), that

Citizens repudiated with regard to 11 C.F.R. 114.15 the same sort of vague and overbroad approach to regulating free speech that FEC applies to PAC-status enforcement (FEC-Br. 40-41),

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Case 3:08-cv-00483-JRS Document 145 Filed 11/08/10 Page 30 of 33
and that the Fourth Circuit struck similar vague and overbroad standards regulating PAC status,

Leake, 525 F.3d at 290 (FEC-Br. 41).

The Government disputes justiciability, arguing that “it is not clear [whether RTAO] would

be a political committee.” (FEC-Br. 40 (emphasis added).) That vagueness is exactly the problem that RTAO challenges and which establishes standing. The Government concedes that

spending $1,000 to run Survivors would trigger statutory standing. This Court held that Change

would also be express advocacy. (Doc. 77 at 13, 15 n.3.) And RTAO has alleged its intent to do

materially similar ads. How many express-advocacy ads does RTAO need to run to trigger

“major-purpose” under FEC’s vague and overbroad test? No one knows. And under the sort of

criteria FEC has suggested in PAC-Status 2, 72 Fed. Reg. 5595, FEC might count toward major

purpose RTAO’s solicitations for running these ads that have been deemed express advocacy.

But it might not. No one knows. And the fact that RTAO’s bylaws forbid express advocacy does

not eliminate standing because the very ads that RTAO considers not express advocacy, in compliance with the bylaws, have been deemed express advocacy. The same is true of RTAO’s

claim that it is not properly deemed a PAC, because that claim is based on the objective majorpurpose test as set out in MCFL and Leake, supra, not FEC’s vague and overbroad test.

The Government argues that its enforcement policy is not reviewable under the APA, while

conceding that this Court has already ruled against it on this issue. (FEC-Br. 41.) This Court’s

prior holding on this subject remains should be reaffirmed:

Final agency action combines the agency’s decision-making process and determines the

rights and obligations of parties. Bennett v. Spear, 520 U.S. 154, 177-78 (1997) . . . .

Plaintiff’s challenge to the definition of “political committee” is still valid, because the

rule establishing what the FEC would consider as a “political committee” is a standard set

by the FEC, even absent a definition.

27

Case 3:08-cv-00483-JRS Document 145 Filed 11/08/10 Page 31 of 33
(Doc. 77 at 16-17).

The Government claims its PAC-status enforcement policy is lawful in part because the

Fourth Circuit and this Court upheld it, and nothing has changed since then. (FEC-Br. 41.) Of

course there was a change. The Fourth Circuit opinion was vacated, rejecting the analysis

therein, and the issue was remanded for reconsideration in light of Citizens—presumably with

the expectation that there would be a different outcome or else there would have been no need to

grant certiorari, vacate, and remand. If the prior decision was correct, certiorari would have been

denied. The Government cites some courts upholding aspects of its policies, but these do not

govern here. Nowhere does the FEC indicate that it follows Leake’s prescription that major purpose “is best understood as an empirical judgment as to whether an organization primarily engages in regulable, election-related speech.” 525 F.3d at 287.

Conclusion

For the reasons stated, this Court should grant RTAO’s preliminary-injunction motion, deny

FEC and DOJ summary-judgment motions, and grant RTAO’s summary-judgment motion.

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

Richard E. Coleson,* rcoleson@bopplaw.com

Barry A. Bostrom,* bbostrom@bopplaw.com

Kaylan Phillips,* kphillips@bopplaw.com

BOPP, COLESON & BOSTROM

1 South Sixth Street

Terre Haute, IN 47807-3510

812/232-2434 telephone

812/234-3685 facsimile

 *admitted pro hac vice

Lead Counsel for Plaintiff

Respectfully submitted,

/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

Local Counsel for Plaintiff

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Case 3:08-cv-00483-JRS Document 145 Filed 11/08/10 Page 32 of 33
Certificate of Service

I hereby certify that on November 8, 2010, I served on 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

Phillip Christopher Hughey 

chughey@fec.gov

Audra Anne Hale-Maddox

ahale-maddox@fec.gov

David Kolker. dkolker@fec.gov

Harry Summers, hsummers@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

 /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

Case 3:08-cv-00483-JRS Document 145 Filed 11/08/10 Page 33 of 33