No. 08-1977 

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT 

______________________________________________________________ 

THE REAL TRUTH ABOUT OBAMA, Plaintiff-Appellant, 

v. 

FEDERAL ELECTION COMMISSION, et al., Defendants-Appellees. 

______________________________________________________________ 

FEDERAL ELECTION COMMISSION’S OPPOSITION 

TO APPELLANT’S MOTION FOR INJUNCTION PENDING APPEAL _____________________________________________________________________________________________________________ 

 Appellee Federal Election Commission (“Commission”) opposes the motion 

of appellant The Real Truth About Obama (“RTAO”) for an injunction pending 

appeal. RTAO cannot demonstrate that it is likely to prevail on the merits of its 

appeal by showing that the district court abused its discretion in declining to enter 

a preliminary injunction against the enforcement of several important campaign 

finance regulations. RTAO also cannot demonstrate any irreparable harm absent 

an injunction, while the Commission and the public would be substantially injured 

by suspending the relevant regulations at the height of the election season. 

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY 

 RTAO is a Virginia organization holding tax-exempt status under 26 U.S.C. 

§ 527. RTAO alleges that it intends to produce and broadcast two radio 

advertisements, entitled Change and Survivors. Survivors states, inter alia, that 

Senator Barack Obama “has been lying” about his voting history, thereby 

demonstrating “callousness” and “a lack of character and compassion that should 

give everyone pause.” RTAO allegedly intends to broadcast these ads during the 
2

sixty-day period preceding the 2008 general election, although RTAO does not 

allege that it has actually produced either ad. RTAO also does not allege that it has 

raised or spent any money. RTAO has drafted one fundraising communication, but 

it does not allege that it has ever sent this letter to anyone. 

 One week after incorporating, RTAO filed its complaint on July 30, 2008, 

and contemporaneously filed a motion for a preliminary injunction challenging 

three of the Commission’s regulations and a policy as unconstitutional on their 

face and as applied to Change. On August 20, RTAO filed a second motion for a 

preliminary injunction, which sought to enjoin the Commission’s enforcement of 

its regulations against Survivors. The district court held oral argument on the 

preliminary injunction motions on September 10, denied those injunctions the next 

day, and issued its memorandum opinion on September 24. 

II. ARGUMENT 

A. Standard of Review 

 A party moving for a stay or injunction under Fed. R. App. P. 8(a) 

must show (1) that he will likely prevail on the merits of the appeal, 

(2) that he will suffer irreparable injury if the stay is denied, (3) that 

other parties will not be substantially harmed by the stay, and (4) 

that the public interest will be served by granting the stay. 

Long v. Robinson, 432 F.2d 977, 979 (4th Cir. 1970); see also Hilton v. Braunskill, 

481 U.S. 770, 776 (1987). To demonstrate a likelihood of success on the merits of 

its appeal, RTAO must show that this Court is likely to find that the district court 

abused its discretion in denying RTAO’s preliminary injunction motions. See
3

MicroStrategy Inc. v. Motorola, Inc., 245 F.3d 335, 339 (4th Cir. 2001). 

B. RTAO Has Not Demonstrated Irreparable Harm 

 RTAO’s failure to demonstrate irreparable harm is dispositive because “[t]he 

basis of injunctive relief in the federal courts has always been irreparable harm,” 

Sampson v. Murray, 415 U.S. 61, 88 (1974) (citation omitted). RTAO fears that its 

fundraising and advertising will qualify the organization as a “political committee,” but RTAO will not suffer any irreparable harm even if it must comply with 

the rules applicable to such groups.1

 As a political committee, RTAO could pay 

for unlimited independent campaign advocacy, including express advocacy and 

electioneering communications. See FEC v. Nat’l Conservative Political Action 

Comm., 470 U.S. 480 (1985). Thus, if RTAO is a political committee, FECA will 

not limit its speech. Moreover, RTAO has not alleged or shown that its 

fundraising would be harmed, let alone irreparably harmed, by abiding by the 

$5,000 limit per contributor on contributions to political committees. 

 Nor has RTAO alleged — much less demonstrated — any irreparable harm 

arising from the reporting requirements for political committees. Proof of such 

harm would require evidence of actual danger or reprisals against its members, and 

 

1

 Under the Federal Election Campaign Act of 1971, 2 U.S.C. §§ 431-55 

(“FECA”), an organization that receives $1,000 in contributions or makes $1,000 

in expenditures in a year is a “political committee.” 2 U.S.C. § 431(4)(A). 

Political committees must register with the Commission and file periodic reports of 

their receipts and disbursements for disclosure to the public. See 2 U.S.C. §§ 433, 

434. No person may contribute more than $5,000 per calendar year to any one 

political committee. 2 U.S.C. § 441a(a)(1)(C). 
4

no such evidence is before the Court. See Buckley v. Valeo, 424 U.S. 1, 69 (1976) 

(noting evidence of “economic reprisal, loss of employment, threat of physical 

coercion, and other manifestations of public hostility”) (citation omitted); 

McConnell v. FEC, 540 U.S. 93, 198-99 (2003) (discussing “threats, harassment, 

and reprisals” in Brown v. Socialist Workers ’74 Campaign Comm., 459 U.S. 87 

(1982)). Thus, RTAO fails to make even a rudimentary showing of irreparable 

harm, let alone the “clear” or “strong” showing required in this Circuit. See Scotts 

Co. v. United Indus. Corp., 315 F.3d 264, 271 (4th Cir. 2002); Dan River, Inc. v. 

Icahn, 701 F.2d 278, 284 (4th Cir. 1983). 

 RTAO conclusorily alleges that its speech is being chilled, but a mere 

allegation of harm under the First Amendment does not demonstrate irreparable 

harm for entry of a preliminary injunction. See Smith v. Frye, 488 F.3d 263, 271 

(4th Cir.), cert. denied, 128 S. Ct. 653 (2007) (holding that harm allegation does 

not “necessarily, by itself, state a First Amendment claim under Elrod [v. Burns, 

427 U.S. 347 (1976) (plurality)]”); see also Christian Knights of the Ku Klux Klan 

Invisible Empire, Inc. v. District of Columbia, 919 F.2d 148, 149-50 (D.C. Cir. 

1990) (holding Elrod applicable only when “First Amendment rights were totally 

denied”). Here, any alleged chill on RTAO’s speech is groundless because FECA 

imposes no limits on political committees’ spending for speech of any kind. 

C. RTAO Is Unlikely to Succeed on the Merits of Its Appeal 

“[A] plaintiff can only succeed in a facial challenge by ‘establish[ing] that 
5

no set of circumstances exists under which the Act would be valid,’ i.e., that the 

law is unconstitutional in all of its applications,” Wash. State Grange v. Wash. 

State Republican Party, 128 S. Ct. 1184, 1190 (2008) (quoting United States v. 

Salerno, 481 U.S. 739 (1987)); cf. McConnell, 540 U.S. at 207 (discussing 

standard for facial challenges). RTAO cannot meet this burden.

1. Express Advocacy 

 Contrary to RTAO’s allegations, the Commission’s regulatory definition of 

“expressly advocating” is constitutional, both facially and as applied to RTAO’s 

proposed radio ads. Under 11 C.F.R. § 100.22(b), the definition of “expressly 

advocating” includes a 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. 

RTAO argues that this regulation violates the First Amendment because (1) it 

allegedly regulates communications that are not “unambiguously campaign 

related,” and (2) it does not comport with a narrow interpretation of “magic words” 

express advocacy. The former claim fails on the face of the regulation, which 

requires that “[t]he electoral portion of the communication [be] unmistakable, 

unambiguous, and suggestive of only one meaning,” which is “advocacy of the 

election or defeat of one or more clearly identified candidate(s).” 11 C.F.R. 
6

§ 100.22(b) (emphasis added). Thus, assuming arguendo that the Constitution 

were to prohibit regulation of financing for communications that are not unambiguously campaign related, section 100.22(b) would not extend beyond that limit. 

 RTAO’s argument that the regulation of express advocacy is constitutionally 

limited to “magic words” of advocacy was laid to rest in McConnell. In that case, 

the plaintiffs challenging the constitutionality of the Bipartisan Campaign Reform 

Act of 2002 (“BCRA”), Pub. L. No. 107-115, argued that Buckley had found 

communications containing “magic words” to be the outer constitutional boundary 

of Congress’s power to regulate in this area. See McConnell, 540 U.S. at 190-91.

The Supreme Court rejected this argument, noting that Buckley had imposed the 

express advocacy requirement because of the vagueness of the original statutory 

text of FECA. McConnell, 540 U.S. at 191-92. Accordingly, McConnell held that 

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

interpretation rather than a constitutional command.” Id. 

 As Justice Thomas noted in dissent, McConnell’s holding “overturned” all of 

the Court of Appeals decisions — including this Court’s ruling in FEC v. Christian 

Action Network, Inc., 110 F.3d 1049 (4th Cir. 1997) — that had read Buckley as 

limiting regulation to magic words. McConnell, 540 U.S. at 278 n.11 (Thomas, J., 

dissenting). Other cases relying on this interpretation of Buckley, such as Virginia 

Society for Human Life, Inc. v. FEC, 263 F.3d 379 (4th Cir. 2001) (“VSHL”), were 

similarly revealed to be in error. See id. at 392 (citing Buckley and Christian 
7

Action Network as support for magic words “limit”). 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. 1987) — the case from which the 

Commission derived the test codified at section 100.22(b). See 60 Fed. Reg. at 

35,292-95 (July 6, 1995). 

 Section 100.22(b) is also consistent with the Supreme Court’s holding in 

FEC v. Wis. Right to Life, Inc., 127 S. Ct. 2652 (2007) (“WRTL”). In that case, the 

Court reiterated McConnell’s upholding of restrictions on 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.” WRTL, 127 S. Ct. at 2667. This constitutional standard is 

similar to the test in section 100.22(b): Both tests narrowly inquire whether there 

is any reasonable way to interpret a communication as non-candidate-advocacy 

and, if so, do not restrict the financing of the communication. Because WRTL’s 

constitutional test is, by definition, not unconstitutionally vague, the test in section 

100.22(b) must also satisfy any vagueness concerns.

2

 

2

 In addition, both tests avoid vagueness concerns by refusing to consider the 

subjective intent of the speaker. Compare 60 Fed. Reg. at 35,295 (“[T]he 

subjective intent of the speaker is not a relevant consideration . . . .”) with WRTL, 

127 S. Ct. at 2668 (“To the extent th[e] evidence goes to WRTL’s subjective 

intent, it is again irrelevant.”). WRTL’s adoption of a test based on a “reasonable” 

interpretation also undermines VSHL’s holding that section 100.22(b) is flawed 

because the regulation purportedly turns on “the overall impressions of the 

hypothetical, reasonable listener or viewer.” VSHL, 263 F.3d at 391. 
8

 RTAO nonetheless claims (Mot. at 12) that WRTL “affirmed that ‘express 

advocacy’ requires ‘magic words.’” But the portion of WRTL that RTAO cites 

affirmatively rejected the proposition, raised in Justice Scalia’s partial concurrence, 

that the only permissible constitutional standard is a magic words test: 

Justice Scalia concludes that “[i]f a permissible test short of the magicwords test existed, Buckley would surely have adopted it.” We are not 

so sure. The question in Buckley was how a particular statutory 

provision could be construed to avoid vagueness concerns, . . . 

Buckley’s intermediate step of statutory construction on the way to its 

constitutional holding does not dictate a constitutional test. 

WRTL, 127 S. Ct. at 2669 n.7 (citations omitted); see also id. at 2692-96 (Souter, 

J., dissenting). 

 RTAO relies heavily upon North Carolina Right to Life, Inc. v. Leake, 525 

F.3d 274 (4th Cir. 2008), which invalidated a state definition of express advocacy. 

The definition at issue in Leake, however, was significantly broader and less 

precise than section 100.22(b), and it included several “contextual factors.” Leake, 

525 F.3d at 298. As this Court noted, the statute “swe[pt] far more broadly than 

WRTL’s ‘functional equivalent of express advocacy’ test,” id. at 297, unlike 

section 100.22(b). And this Court concluded that the state “remains free to adopt a 

definition of express advocacy consistent with the standards approved by 

McConnell and WRTL.” Id. at 301. Because section 100.22(b) is consistent with 

both McConnell and WRTL, it does not bear the infirmities present in Leake. 

 RTAO also challenges the application of section 100.22(b) to its two radio 
9

ads. Regarding Change, the Commission agreed with RTAO before the district 

court that the ad was not express advocacy. Survivors, however, contains numerous elements of express advocacy. First, Survivors criticizes Senator Obama’s 

character, saying that he has shown “callousness” and “a lack of character and 

compassion.” Such character attacks are among what the Supreme Court has 

called “indicia of express advocacy.” See WRTL, 127 S. Ct. at 2667 (holding that 

indicia include “tak[ing] a position on a candidate’s character”). Second, Survivors

refers to Senator Obama’s political party, another mark of express advocacy. Id. 

(“mention[ing] an election . . . political party, or challenger”). Third, the ad attacks 

the candidate personally by saying that he “has been lying” for years. Fourth, 

Survivors characterizes Senator Obama’s alleged record on the abortion issue as 

“horrendous” and uses this as evidence for his alleged “callousness” and “lack of 

character and compassion.” See id. at 2667 n.6 (distinguishing WRTL’s ads from 

those that “condemn[ ] [a candidate’s] record on a particular issue”). Fifth, unlike 

issue advocacy, Survivors does not implore listeners to take action relative to any 

public policy on abortion. See id. at 2667 (“genuine issue ads . . . exhort the public 

to adopt [a] position, and urge the public to contact public officials”). Finally, and 

most importantly, Survivors says that “Obama’s callousness . . . reveals a lack of 

character and compassion that should give everyone pause” (emphasis added). 

Because the phrase “give everyone pause” is explicitly linked to Senator Obama’s 

character, not action on public policy, there is only one reasonable interpretation of 
10

that phrase: “Everyone” should “pause” before voting for Senator Obama. To ask 

listeners to hesitate before supporting a candidate is equivalent to “reject[ing]” him 

— one of the examples of words of express advocacy listed in Buckley, 424 U.S. at 

44 n.52. Indeed, the ad emphasizes not only that abortion opponents should reject 

Senator Obama, but also that “everyone,” regardless of any position on abortion, 

should hesitate because Senator Obama has character flaws. Thus, “[r]easonable 

minds could not differ as to whether” Survivors encourages listeners not to vote for 

Senator Obama, so the ad can be regulated constitutionally as express advocacy. 

 In sum, the Commission’s application of section 100.22(b) to RTAO’s ads 

demonstrates the regulation’s precision and the Commission’s narrow construction 

of it. Because reasonable minds could differ about whether Change encourages an 

electoral result, the Commission has explained that it is not express advocacy 

under the regulation. Thus, the Commission’s precise application is fully 

consistent with WRTL’s teaching that any “tie goes to the speaker.” WRTL, 127 S. 

Ct. at 2669. In contrast, Survivors is “unmistakable” and “unambiguous,” and thus 

regulable as express advocacy. RTAO, like other advertisers, can determine from 

the regulation and the Commission’s precedent whether a given communication is 

or is not express advocacy. 

2. Political Committee Status 

Buckley held that defining political committees “only in terms of amount of 

annual ‘contributions’ and ‘expenditures’” might reach “groups engaged purely in 
11

issue discussion.” 424 U.S. at 79. Buckley therefore narrowly construed FECA’s 

political committee provisions to apply only to “organizations that are under the 

control of a candidate or the major purpose of which is the nomination or election 

of a candidate.” Id. Under the statute as thus limited, a non-candidate organization 

must register as a political committee and be subject to contribution limits only if 

the entity crosses the $1,000 threshold of contributions or expenditures and its 

“major purpose” is the nomination or election of candidates. 

 RTAO challenges the Commission’s explanation of how it determines 

whether the major purpose test for political committee status has been met, as 

noted in an Explanation and Justification (“E&J”) published in the Federal 

Register. 72 Fed. Reg. 5595 (Feb. 7, 2007). The Commission issued this E&J to 

explain its decision not to promulgate a regulation singling out section 527 

organizations. See id. But because this explanation binds no one and does not 

constitute final agency action, RTAO’s claim is not reviewable under the APA. 

Courts may only hear APA suits based on “final agency action for which there is 

no other adequate remedy in a court.” 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, 177-78 (1997); Flue-Cured 

Tobacco Coop. Stabilization Corp. v. EPA, 313 F.3d 852 (4th Cir. 2002) (holding 

publication of report not final agency action); Invention Submission Corp. v. 

Rogan, 357 F.3d 452, 459 (4th Cir. 2004). In contrast, the E&J explains why a 
12

broad regulation was not created; it does not purport to create a new rule, establish 

a binding norm, or decide anyone’s legal status. Rather, it simply explains how the 

Commission’s enforcement actions provide guidance to organizations about the 

major purpose test. 72 Fed. Reg. at 5604. This guidance is not final agency action 

subject to APA review, and RTAO cites no authority to the contrary. 

 Even if reviewable, the Commission’s approach to political committee status 

is constitutional. The Supreme Court, not the Commission, established the major 

purpose test. Buckley, 424 U.S. at 79; see also McConnell, 540 U.S. at 170 n.64. 

RTAO’s claim appears to focus on the Commission’s implementation of that test, 

but the Commission’s approach is not unconstitutionally vague or overbroad. The 

assessment of an organization’s “major” purpose is an inherently comparative 

analysis and thus requires understanding an organization’s overall activities. In 

enforcement decisions, the Commission considers a variety of factors to determine 

an organization’s major purpose, including the organization’s public statements, 

representations made in government filings, statements made to potential donors, 

internal governing documents, and the proportionate amount of spending on 

election-related activity. See 72 Fed. Reg. at 5605. Courts have endorsed the use 

of these factors. See, e.g., FEC v. Malenick, 310 F. Supp. 2d 230, 234-37 (D.D.C. 

2004) (considering, 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, 864-66 (D.D.C. 1996) 
13

(“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.”). In numerous administrative 

enforcement proceedings and advisory opinions, the Commission has examined 

these and other factors to determine whether organizations satisfy the major 

purpose test. See 72 Fed. Reg. at 5605-06. RTAO cannot provide a single case in 

which the Commission incorrectly determined the major purpose of an organization. Thus, there is no legal or factual basis for RTAO’s claim that the Commission’s political committee analysis is unconstitutionally overbroad or vague. 

3. Contributions in Response to Solicitations 

 FECA does not provide specific guidance as to when a donation is made “for 

the purpose of influencing any election” and thus constitutes a “contribution.” 

2 U.S.C. § 431(8)(A)(i). Accordingly, the Commission promulgated 11 C.F.R. 

§ 100.57, which specifies that a “deposit of money . . . made by any person in 

response to any communication is a contribution . . . 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); 69 

Fed. Reg. 68,056, 68,057 (Nov. 23, 2004). Section 100.57 reasonably interprets 

FECA to ensure that money donated in response to an appeal to help influence 

federal elections will not evade the Act’s contribution limits and undermine their 

anti-corruption objective. See 72 Fed. Reg. at 5602. 
14

 As the Commission explained before the district court, section 100.57 does 

not apply to RTAO’s proposed solicitation letter; thus, RTAO can demonstrate 

neither irreparable harm nor an Article III case or controversy concerning this 

regulation. See Renne v. Geary, 501 U.S. 312, 323-24 (1991). In any event, 

RTAO is not likely to succeed on the merits of its facial challenge: The regulation 

is well within the Commission’s authority, “gives ‘fair notice to those to whom [it] 

is directed,’” McConnell, 540 U.S. at 223, and is not arbitrary and capricious. 

Buckley found that the definitions of “contribution” and “expenditure” raise 

different constitutional concerns. Limits on contributions entail “only a marginal 

restriction upon the contributor’s ability to engage in free communication,” 424 

U.S. at 20-21, and will be upheld if they are “closely drawn to match a sufficiently 

important interest,” McConnell, 540 U.S. at 136 (citations and quotation marks 

omitted). In particular, Buckley found it unnecessary to narrowly construe 

“contribution” as it did “expenditure,” and instead stated that the term includes 

not only contributions made directly or indirectly to a candidate, 

political party, or campaign committee, and contributions made to other 

organizations or individuals but earmarked for political purposes, but 

also all expenditures placed in cooperation with . . . a candidate . . . . 

424 U.S. at 78 (emphasis added). Buckley did not, as RTAO suggests, employ an 

“unambiguously-campaign-related” analysis for contributions. Id. at 24 n.24, 78. 

Because RTAO’s challenge to section 100.57 rests heavily on this mistake, RTAO 

has little likelihood of success on the merits. Indeed, the regulation’s requirement 
15

that a solicitation must seek funds to “support or oppose the election of a . . . 

candidate” is plainly narrower than Buckley’s “earmarked for political purposes.” 

 When the Commission promulgated section 100.57, it relied in part on FEC 

v. Survival Educ. Fund, Inc., 65 F.3d 285 (2d Cir. 1995), which had addressed 

whether a mailing sent by a nonprofit issue advocacy group constituted solicitation 

of “contributions” in the context of a disclaimer requirement. The court held that 

“[e]ven if a communication does not itself constitute express advocacy, it may still 

fall within the reach of” FECA’s solicitation disclosure requirements if it “contains 

solicitations clearly indicating that the contributions will be targeted to the election 

or defeat of a clearly identified candidate for federal office.” Id. at 295. More 

recently, the constitutionality of 11 C.F.R. § 100.57 was upheld against a facial 

challenge in EMILY’s List v. FEC, Civ. No. 05-0049, 2008 WL 2938558 (D.D.C. 

July 21, 2008); see also 362 F. Supp. 2d 43 (D.D.C. 2005), aff’d, 2005 WL 

3804998 (D.C. Cir. 2005). The court specifically rejected the argument that the 

use of “support or oppose” made the regulation unconstitutionally vague. 

[T]he Supreme Court rejected just such a claim in McConnell, stating 

that “[t]he words ‘promote,’ ‘oppose,’ ‘attack,’ and ‘support’ ... 

‘provide explicit standards for those who apply them’ and ‘give the 

person of ordinary intelligence a reasonable opportunity to know what 

is prohibited.’” 

2008 WL 2938558, at *29 (emphasis by the court; citations omitted); see also

Voters Educ. Comm. v. Wash. State Pub. Disclosure Comm’n, 166 P.3d 1174, 

1183-84 & nn.8-9 (Wash. 2007) (en banc), cert. denied, 128 S. Ct. 2898 (2008) 
16

(holding that “the phrase ‘in support of, or opposition to, any candidate’ in the 

definition of ‘political committee’” is not unconstitutionally vague). 

 In sum, the solicitation regulation causes RTAO no harm, and RTAO 

misunderstands the Supreme Court’s explanation of “contribution”; the authorities 

cited above confirm the constitutionality of the “support or oppose” standard. 

4. Corporation-Funded Electioneering Communications 

 FECA prohibits corporations from funding “any applicable electioneering 

communication,” which is defined in the context of a presidential campaign as a 

“broadcast . . . communication” that (a) refers to a clearly identified presidential 

candidate, and (b) is made within sixty days before a general election or thirty days 

before a primary or convention. 2 U.S.C. §§ 441b(b)(2), 434(f)(3)(A)(i). The 

Supreme Court has upheld the constitutionality of this financing restriction “to the 

extent that the [communications] ... are the functional equivalent of express 

advocacy.” McConnell, 540 U.S. at 189-94, 203-08; WRTL, 127 S. Ct. at 2667. 

 Chief Justice Roberts’ controlling opinion in WRTL defined “the functional 

equivalent of express advocacy” as a communication that is “susceptible of no 

reasonable interpretation other than as an appeal to vote for or against a specific 

candidate.” WRTL, 127 S. Ct. at 2667. The opinion then listed indicia of genuine 

issue ads and express advocacy and analyzed the ads at issue: 

First, [the ads’] content is consistent with that of a genuine issue ad: 

The ads focus on a legislative issue, take a position on the issue, 

exhort the public to adopt that position, and urge the public to contact 

public officials with respect to the matter. Second, their content lacks 
17

indicia of express advocacy: The ads do not mention an election, 

candidacy, political party, or challenger; and they do not take a 

position on a candidate’s character, qualifications, or fitness for office. 

Id. Shortly thereafter, the Commission promulgated a regulation to codify the 

controlling opinion, using, essentially verbatim, the same criteria that the Chief 

Justice used. See 11 C.F.R. § 114.15. Section 114.15 straightforwardly 

implements WRTL, providing additional guidance without exceeding the 

constitutional boundary described in that decision. Tracking the language of 

WRTL, section 114.15 states that a corporation may fund an electioneering 

communication “unless the communication is susceptible of no reasonable 

interpretation other than as an appeal to vote for or against a clearly identified 

Federal candidate.” 11 C.F.R. § 114.15(a); WRTL, 127 S. Ct. at 2667. For 

additional clarity, two safe harbor provisions for lobbying messages and 

commercial advertisements supplement the general exemption. 11 C.F.R. 

§ 114.15(b). The regulation also adheres to WRTL’s teaching that when there is 

doubt about a communication’s meaning, the “tie goes to the speaker,” 127 S. Ct. 

at 2669; the regulation’s rule of interpretation states that in “interpreting a 

communication under paragraph (a) of this section, any doubt will be resolved in 

favor of permitting the communication,” 11 C.F.R. § 114.15(c)(3). 

 RTAO challenges section 114.15 both facially and as applied to Change and 

Survivors. As to Change, the Commission agreed with RTAO before the district 

court that the ad qualifies for the general exemption set out in section 114.15(a). 
18

As to Survivors, for substantially the same reasons that it is express advocacy 

under 11 C.F.R. § 100.22(b), it is also regulable as the functional equivalent of 

express advocacy under 11 C.F.R. § 114.15(a). See supra Part II.C.1. Indeed, the 

ad explicitly “condemn[s Senator Obama’s] record on a particular issue,” the 

precise distinction that Chief Justice Roberts drew between the ads at issue in 

WRTL and a hypothetical candidate ad analyzed in McConnell. See WRTL, 127 

S. Ct. at 2667 n.6. Because RTAO’s ad “is susceptible of no reasonable 

interpretation other than as an appeal to vote . . . against a specific candidate,” 

WRTL, 127 S. Ct. at 2667; 11 C.F.R. § 114.15(c), the application of FECA’s 

financing restrictions to the ad is constitutional. 

 The Commission’s regulatory criteria for making this determination are 

essentially identical to the criteria set out in WRTL; thus, section 114.15 is neither 

vague nor overbroad. Contrary to RTAO’s inaccurate description of section 

114.15(c), the regulation does not “demote” the Supreme Court’s standard. As 

explained above, section 114.15 contains only one standard, the one articulated by 

the Court itself: A corporation can pay for an electioneering communication 

“unless the communication is susceptible of no reasonable interpretation other than 

as an appeal to vote for or against a clearly identified Federal candidate.” 11 

C.F.R. § 114.15(a). The rules of interpretation articulated in section 114.15(c) 

come directly from the Court’s analysis in WRTL. See WRTL, 127 S. Ct. at 2667. 

Thus, contrary to RTAO’s accusation, the Commission has not given short shrift to 
19

the Court’s fundamental test by listing and considering indicia of express 

advocacy. That is precisely what the Supreme Court did in WRTL. 

 Finally, RTAO argues that Leake somehow supports its position that section 

114.15 is void. It does not. Leake struck down a state law provision because it 

relied on open-ended factors such as “‘[the] essential nature [of the 

communication],’ ‘the timing of the communication in relation to events of the 

day,’ ‘the distribution of the communication to a significant number of registered 

voters for that candidate’s election,’ and ‘the cost of the communication.’” 525 

F.3d at 283-84. These sorts of factors are excluded from consideration under 

section 114.15(d) (“[T]he Commission may consider only the communication itself 

and basic background information ....”). In sum, because section 114.15 is derived 

from and consistent with the Supreme Court’s analysis in WRTL, it is neither 

overbroad nor vague nor in excess of the FEC’s statutory authority. 

D. The Commission and Public Would Be Harmed by an Injunction 

 Enjoining the Commission from enforcing its regulations would 

substantially injure the Commission and harm the public, whose interests the 

Commission is charged with protecting. “[A]ny time a State is enjoined by a court 

from effectuating statutes enacted by representatives of its people, it suffers . . . 

injury.” New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 434 U.S. 1345, 1351 

(1977) (Rehnquist, J., in chambers); see also Walters v. Nat’l Ass’n of Radiation 

Survivors, 468 U.S. 1323, 1324 (1984) (Rehnquist, J., in chambers). The imminent 
20

harm to the public if the Commission is not permitted to enforce its regulations far 

outweighs RTAO’s speculative fear. In these key months leading up to the 

national election, halting enforcement of the challenged regulations could 

undermine the public’s confidence in the federal campaign financing system. The 

regulations and policy at issue implement longstanding limits on corporate 

influence in federal elections and ensure that political committees abide by 

contribution limits and disclose their receipts and disbursements to the public. 

These limits and disclosure requirements serve compelling government interests in 

preventing corruption, educating the public, and facilitating the Commission’s 

enforcement of the law. Thus, enjoining application of the challenged provisions 

could confuse political actors, allow improper use of corporate funds in the 

election process, sanction excessive campaign contributions, and deprive the public 

of important information. 

III. CONCLUSION 

For the foregoing reasons, RTAO’s motion should be denied. 

 Respectfully submitted, 

Thomasenia P. Duncan, General Counsel 

David Kolker, Associate General Counsel 

Harry J. Summers, Assistant General Counsel 

 /s/ Adav Noti 

Adav Noti, Attorney 

COUNSEL FOR APPELLEE 

FEDERAL ELECTION COMMISSION 

999 E Street NW 

September 24, 2008 Washington, DC 20463
CERTIFICATE OF SERVICE

I hereby certify that on September 24, 2008, I will electronically file the 

foregoing using the Court’s CM/ECF system, which will then send a notification of 

such filing to the following: 

James Bopp, Jr., jboppjr@aol.com 

Clayton James Callen, ccallen@bopplaw.com 

Richard Eugene Coleson, rcoleson@bopplaw.com 

Eric Fleisig-Greene, eric.fleisig-greene@usdoj.gov 

Debra J. Prillaman, Assistant U.S. Attorney, debra.prillaman@usdoj.gov 

J. Gerald Hebert, ghebert@campaignlegalcenter.org 

And I will cause the foregoing to be mailed by first-class mail to: 

Michael Boos 

Suite 313 

4101 Chain Bridge Road 

Fairfax, VA 22030 

Joseph P. Chamberlain 

Columbia University School of Law 

435 West 116th Street 

New York, NY 10027 

John Allan Love 

University of Virginia School of Law 

580 Massie Road 

Charlottesville, VA 22903-1789 

 /s/ Adav Noti 

Adav Noti 

COUNSEL FOR APPELLEE 

FEDERAL ELECTION COMMISSION 

999 E Street NW 

Washington, DC 20463