No. 

In The

Supreme Court of the United States

____________

The Real Truth About Abortion, Inc., Petitioner

v.

Federal Election Commission and

United States Department of Justice

____________

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Fourth Circuit

 ____________

Petition for a Writ of Certiorari

____________

Michael Boos

LAW OFFICE OF MICHAEL

BOOS

Suite 313

4101 Chain Bridge Road

Fairfax, VA 22030

703/691-7717

703-691-7543 (facsimile)

September 10, 2012

James Bopp, Jr.

 Counsel of Record

Richard E. Coleson

THE BOPP LAW FIRM, PC

1 South 6th Street

Terre Haute, IN 47807

812/232-2434

812/235-3685 (facsimile)

jboppjr@aol.com

Counsel for Petitioner
Questions Presented

When Petitioner sought review of a preliminaryinjunction denial herein, this Court granted certiorari,

vacated, and “remanded . . . for further consideration

in light of Citizens United v. Federal Election Comm’n,

. . . 130 S. Ct. 876 . . . (2010) . . . .” Real Truth About

Obama v. FEC, 130 S. Ct. 2371 (2010) (“RTAO”). Petitioner has since changed its name to The Real Truth

About Abortion, Inc. (“RTAA”). On cross-motions for

summary judgment, the lower courts substantively

ruled against RTAA, as before the remand, on these

two issues, even though the remand indicated that

there was “a reasonable probability that the decision

below rest[ed] upon a premise that the lower court

would reject given the opportunity for further consideration,” Lawrence v. Chater, 516 U.S. 163, 167 (1996)

(per curiam):

1. Whether the Federal Election Commission’s

(“FEC”) alternate “expressly advocating” definition at

11 C.F.R. 100.22(b) is unconstitutionally overbroad,

void for vagueness, and contrary to law, facially and as

applied to RTAA’s intended activities, because it violates the First and Fifth Amendments of the U.S. Constitution, exceeds statutory authority under the Federal Election Campaign Act (“FECA”), 2 U.S.C. 431 et

seq., and should be declared void under the Administrative Procedure Act (“APA”), 5 U.S.C. 702-06.

2. Whether FEC’s enforcement policy regulating

determination of “political committee” (“PAC”) status

is unconstitutionally overbroad, void for vagueness,

and contrary to law, facially and as applied to RTAA’s

intended activities, because it violates the First and

Fifth Amendments, exceeds statutory authority under

FECA, and should be declared void under APA.

(i)
Corporate Disclosure

The Real Truth About Abortion, Inc. (“RTAA”),

f.k.a. The Real Truth About Obama, Inc. (“RTAO”), has

no parent corporation and is a nonstock corporation, so

no publicly held company owns ten percent or more of

its stock.

(ii)
Table of Contents

Questions Presented. . . . . . . . . . . . . . . . . . . . . . . . . (i)

Corporate Disclosure.. . . . . . . . . . . . . . . . . . . . . . . (ii)

Table of Authorities. . . . . . . . . . . . . . . . . . . . . . . . (vi)

Petition. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Opinions Below. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

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

Constitution, Statutes & Regulations. . . . . . . . . . . . 1

Statement of the Case.. . . . . . . . . . . . . . . . . . . . . . . . 1

Reasons to Grant the Petition. . . . . . . . . . . . . . . . . 11

I. Protecting Core Political Speech and Association by Maintaining Established Bright

Lines Is a Matter of Great National Importance... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

II. Express Advocacy Requires Magic Words.. . 16

A. The Holding Conflicts with Other Circuit Decisions.. . . . . . . . . . . . . . . . . . . . . . 16

B. The Holding Conflicts with this Court’s

Decisions... . . . . . . . . . . . . . . . . . . . . . . . . 18

C. The Lower Court’s Justification Is

Flawed.. . . . . . . . . . . . . . . . . . . . . . . . . . . 19

(iii)
D. FEC Splits Demonstrate 100.22(b)’s

Unconstitutional Vagueness.. . . . . . . . . . 21

III. PAC-Status May Only Be Imposed on

Groups with the Major Purpose of

Regulable, Campaign-Related Activity.. . . . 24

A. The Holding Conflicts With Other Circuit Decisions.. . . . . . . . . . . . . . . . . . . . . . 26

B. The Holding Conflicts With Decisions of

This Court... . . . . . . . . . . . . . . . . . . . . . . . 29

C. The Court’s Justification Is Erroneous.. . 31

D. FEC’s Application of Its Policy Reveals

the Policy’s Vagueness and Chilling Effect... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Appendix Table of Contents

Opinion, Real Truth About Abortion v. FEC, 681

F.3d 544 (4th Cir. 2012).. . . . . . . . . . . . . . . . . . . 1a

Memorandum Opinion, Real Truth About Obama

v. FEC, 796 F. Supp. 2d 736 (E.D. Va. 2011). . 31a

Final Order, Real Truth About Obama v. FEC

(E.D. Va. June 16, 2011). . . . . . . . . . . . . . . . . . 63a

U.S. Const. amend. I. . . . . . . . . . . . . . . . . . . . . . . . 65a

U.S. Const. amend. V. . . . . . . . . . . . . . . . . . . . . . . 65a

(iv)
2 U.S.C. 431(17). . . . . . . . . . . . . . . . . . . . . . . . . . . 65a

11 C.F.R. 100.16(a). . . . . . . . . . . . . . . . . . . . . . . . . 66a

11 C.F.R. 100.22. . . . . . . . . . . . . . . . . . . . . . . . . . . 66a

(v)
Table of Authorities

Cases

Alaska Right to Life Committee v. Miles, 441 F.3d

773 (9th Cir. 2006).. . . . . . . . . . . . . . . . . . . . 29, 31

American Civil Liberties Union of Nevada v.

Heller, 378 F.3d 979 (9th Cir. 2004). . . . . . . . . . 17

Anderson v. Spear, 356 F.3d 651 (6th Cir. 2004).. . 17

Brownsburg Area Patrons Affecting Change v.

Baldwin, 137 F.3d 503 (7th Cir. 1998). . . . . 17, 30

Buckley v. Valeo, 424 U.S. 1 (1976). . 2, 13-14, 17-21,

23, 26

California Pro-Life Council v. Getman, 328 F.3d

1088 (9th Cir. 2003).. . . . . . . . . . . . . . . . . . . 17, 29

California Pro-Life Counsel v. Randolph, 507 F.3d

1172 (9th Cir. 2007).. . . . . . . . . . . . . . . . . . . . . . 30

Center for Individual Freedom v. Carmouche, 449

F.3d 655 (5th Cir. 2006).. . . . . . . . . . . . . . . . . . . 17

Citizens United v. FEC, 130 S. Ct. 876 (2010). . . . (i),

11, 15, 19

Colorado Right to Life Committee v. Coffman, 498

F.3d 1137 (10th Cir. 2007).. . . . . . . . . . . . . . 27-28

Faucher v. FEC, 928 F.2d 468 (1st Cir. 1991). . . . . 17

(vi)
FEC v. Central Long Island Tax Reform, 616 F.2d

45 (2d Cir.1980). . . . . . . . . . . . . . . . . . . . . . . . . . 17

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

(4th Cir. 1997). . . . . . . . . . . . . . . . . . . . . . . . . . . 17

FEC v. Florida for Kennedy Comm., 681 F.2d

1281 (11th Cir. 1982).. . . . . . . . . . . . . . . . . . . . . 31

FEC v. Furgatch, 807 F.2d 857 (9th Cir. 1987). . . . 17

FEC v. GOPAC, 917 F. Supp. 851 (D.D.C. 1996).. 26,

28

FEC v. Machinists Non-Partisan Political League,

655 F.2d 380 (D.C. Cir. 1981). . . . . . . . . . . . 28, 31

FEC v. Massachusetts Citizens for Life, 479 U.S

238 (1986).. . . . . . . . . . . . . . . . . . . . . 18, 21, 27-30

FEC v. Survival Educ. Fund, 65 F.3d 285 (2d Cir.

1995).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

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

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 19-20

Florida Right to Life v. Lamar, 238 F.3d 1288

(11th Cir. 2001) .. . . . . . . . . . . . . . . . . . . 27-28, 30

Florida Right to Life v. Mortham, No. 98-

770CIVORL19A, 1999 WL 33204523 (M.D.

Fla. Dec. 15,1999). . . . . . . . . . . . . . . . . . . . . 27, 30

Human Life of Washington v. Brumsickle, 624

F.3d 990 (9th Cir. 2010).. . . . . . . . . . . . . . . . . . . 31

(vii)
Iowa Right to Life Committee v. Williams, 187

F.3d 963 (8th Cir. 1999).. . . . . . . . . . . . . . . . . . . 17

Lawrence v. Chater, 516 U.S. 163 (1996). . . . . . . . . 11

McConnell v. FEC, 540 U.S. 93 (2003). . . . . 17-18, 20

Minnesota Citizens Concerned for Life v.

Swanson, No. 10-3126, 2012 WL 3822216 (8th

Cir. Sept. 5, 2012). . . . . . . . . . . . . . . . . . 12, 28, 30

National Federation of Republican Assemblies v.

United States, 218 F. Supp. 2d 1300 (S.D. Ala.

2002).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

National Org. for Marriage v. McKee, 649 F.3d 34

(1st Cir. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . 31

National Org. for Marriage v. Secretary, No. 11-

14193, 2012 WL 1758607 (11th Cir. May 17,

2012).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

New Mexico Youth Organized v. Herrera, 611 F.3d

669 (10th Cir. 2010).. . . . . . . . . . . . . . . . . . . . . . 30

New York Civil Liberties Union v. Acito, 459 F.

Supp. 75 (1978). . . . . . . . . . . . . . . . . . . . . . . 28, 31

North Carolina Right to Life v. Bartlett, 168 F.3d

705 (4th Cir. 1999).. . . . . . . . . . . . . . . . . . . . 26, 28

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

274 (4th Cir. 2008).. . . . . . . . . . . . . . 17, 26, 28, 30

(viii)
Real Truth About Abortion v. FEC, 681 F.3d 544

(4th Cir. 2012). . . . . . . . . . . . . . . . . . . . . (iv), 1, 11

Real Truth About Obama v. FEC, 130 S. Ct. 2371

(2010) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (i), 11

Real Truth About Obama v. FEC, 796 F. Supp. 2d

736 (E.D. Va. 2011). . . . . . . . . . . . . . . . . . . . (iv), 1

Richey v. Tyson, 120 F. Supp. 2d 1298 (S.D. Ala.

2000).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 31

Right to Life of Duchess County v. FEC, 6 F. Supp.

2d 248 (S.D. N.Y. 1998). . . . . . . . . . . . . . . . . . . . 17

RTAO v. FEC, 575 F.3d 342 (4th Cir. 2009). . . . . . 10

RTAO v. FEC, 607 F.3d 355 (4th Cir. 2010). . . . . . 11

South Carolina Citizens for Life v. Davis, slip op.,

No. 3:00-0124-19 (D.S.C. 2000). . . . . . . . . . . . . . 31

United States v. National Comm. for Impeachment, 469 F.2d 1135 (2d Cir. 1972).. . . . . . . 28, 30

Unity08 v. FEC, 596 F.3d 861 (D.C. Cir. 2010). . . . 31

Virginia Society for Human Life v. FEC, 263 F.3d

379 (4th Cir. 2001).. . . . . . . . . . . . . . . . . . . . . . . 17

Volle v. Webster, 69 F. Supp. 2d 171 (D. Me. 1999)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

(ix)
Constitutions, Statutes, Regulations & Rules

11 C.F.R. 100.16(a). . . . . . . . . . . . . . . . . . . . . . . . (v), 1

11 C.F.R. 100.22. . . . . . . . . . . . . . . . . . . . . . . . passim

11 C.F.R. 100.57. . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 9

2 U.S.C. 431(17). . . . . . . . . . . . . . . . . . . . (v), 1, 20, 21

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

2 U.S.C. 434(f)(3).. . . . . . . . . . . . . . . . . . . . . . . . . 6, 20

26 U.S.C. 527.. . . . . . . . . . . . . . . . . . . . . . . . 1-3, 9, 25

28 U.S.C. 1331.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

28 U.S.C. 2201-02. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

5 U.S.C. 706.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 32

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

U.S. Const. amend. V. . . . . . . . . . . . . . . . . . . . . . . . (v)

Other Authorities

Edward B. Foley, The “Major Purpose” Test: Distinguishing Between Election-Focused and

Issue-Focused Groups, 31 N. Ky. L. Rev. 341

(2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

FEC Advisory Opinion 2005-13 (EMILY’s List). . . . 9

(x)
FEC Advisory Opinion 2012-27 (National Defense

Committee).. . . . . . . . . . . . . . . . . . . . . . . . . . 16, 23

FEC Chair Caroline C. Hunter and Commissioners Donald F. McGahn and Matthew S. Peterson, Statement on FEC Advisory Opinion

2011-12.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 32

FEC, “Political Committee Status . . . ,” 69 Fed.

Reg. 68056 (Nov. 23, 2004). . . . . . . . . . . . . . . 9, 24

FEC, “Political Committee Status,” 72 Fed. Reg.

5595 (Feb. 7, 2007).. . . . . . . . . . . . . 3, 9, 24-25, 28

(xi)
Petition

Petitioner RTAA requests certiorari review of Real

Truth About Abortion v. FEC, 681 F.3d 544 (4th Cir.

2012) (“RTAA”).

Opinions Below

RTAA (App.1a) is reported at 681 F.3d 544 . The

district court’s opinion on cross-motions for summary

judgment (App.31a) is reported at Real Truth About

Obama v. FEC, 796 F. Supp. 2d 736 (E.D. Va. 2011).

The district court’s Final Order (App.63a) is unreported.

Jurisdiction

The appellate court’s opinion (App.1a) and judgment were filed June 12, 2012. Jurisdiction is invoked

under 28 U.S.C. 1254(1).

Constitution, Statutes & Regulations

Appended are the First and Fifth Amendments

(App.65a); 2 U.S.C. 431(17) (App.65a); 11 C.F.R.

100.16(a) (App.66a); 11 C.F.R. 100.22 (App.66a).

Statement of the Case

The jurisdiction of the district court was invoked

under 28 U.S.C. 1331, as a case arising under the First

and Fifth Amendments, FECA, APA, and the Declaratory Judgment Act, 28 U.S.C. 2201-02. Court-of-Appeals Appendix (“CA-App–”) 21.

RTAA (formerly RTAO) was incorporated in July

2008 as a nonprofit under 26 U.S.C. 527, i.e., as a “political organization” that may receive donations and

make disbursements for certainidentified political purposes without paying corporate income taxes. CA-
2

App–22.

RTAA is not properly a political committee (PAC)

under FECA because none of its communications are

properly “contributions” or “expenditures” aggregating

over $1,000 per year, a trigger for PAC status under 2

U.S.C. 431(4)(A). CA-App–22.

RTAA is also not properly a PAC because it does not

meet the constitutionally required “major purpose” test

under a proper interpretation of the test. See Buckley

v. Valeo, 424 U.S. 1, 79 (1976) (PAC burdens limited to

“organizations . . . under the control of a candidate or

the major purpose of which is the nomination or election of a candidate” because “[t]hey are, by definition,

campaign related” (emphasis added)). CA-App–22. In

its current Articles of Incorporation, RTAA’s purposes

are stated as follows:

The specific and primary purposes for which this

corporation is formed and for which it shall be

exclusively administered and operated are to

receive, administer and expend funds in connection with the following:

1. To provide accurate and truthful information about the public policy positions of Barack

Obama and other pro-abortion candidates for

federal office;

2. To engage in non-partisan voter education, registration and get out the voter activities

in conjunction with federal elections;

3. To engage in any activities related to federal elections that are authorized by and are

consistent with Section 527 of the Internal Revenue Code except that the corporation shall not:

(a) expressly advocate the election or defeat
3

of any clearly identified candidate for

public office, or

(b) make any contribution to any candidate

for public office; and

4. To engage in any and all lawful activities

incidental to the foregoing purposes except as

restricted herein.

CA-App–23.

But RTAA reasonable believes it will be deemed a

PAC by FEC and DOJ because of (a) FEC’s use of the

challenged “expressly advocating” definition at 11

C.F.R. 100.22(b) (along with the sort of approach taken

by 11 C.F.R. 100.57, which is no longer enforced but is

the type of consideration employed by the FEC PACstatus policy) and FEC’s enforcement policy concern- 1

ing PAC status, see FEC, “Political Committee Status,”

72 Fed. Reg. 5595 (Feb. 7, 2007) (“PAC-Status 2”) (emphasizing the need for “flexibility” in determining PAC

status based on a wide range of factors in a case-bycase analysis of “major purpose”), to deem several 527

organizations to be PACs and in violation of FECA, see

id. at 5605 (listing Matters Under Review (“MURs”) in

which this occurred); and (b) the similar nature of

RTAA and its planned activities to some of those in the

MURs cited in PAC-Status 2. CA-App–23.

One way RTAA intended to provide accurate and

truthful information about the public policy positions

of then-Senator Obama was by creating a website at

www. therealtruthaboutobama.com, where accurate

Section 100.57 allowed for donations to an entity to be 1

deemed regulated “contributions” under 2 U.S.C. 431(8)

(i.e., “for the purpose of influencing” federal elections) by

applying a vague “support or oppose” test to the solicitation.
4

statements about his public-policy positions would be

documented. CA-App–24, 43-48.

RTAA intended to produce and put on its website

Change, an audio ad stating the following:

(Woman’s voice) Just what is the real truth

about Democrat Barack Obama’s position on

abortion?

(Obama-like voice) Change. Here is how I

would like to change America . . . about abortion:

• Make taxpayers pay for all 1.2 million abortions performed in America each year

• Make sure that minor girls’ abortions are

kept secret from their parents

• Make partial-birth abortion legal

• Give Planned Parenthood lots more money to

support abortion

• Change current federal and state laws so

that babies who survive abortions will die

soon after they are born

• Appoint more liberal Justices on the U.S.

Supreme Court.

One thing I would not change about America is

abortion on demand, for any reason, at any time

during pregnancy, as many times as a woman

wants one.

(Woman’s voice). Now you know the real

truth about Obama’s position on abortion. Is

this the change that you can believe in?

To learn more real truth about Obama, visit

www.The RealTruthAboutObama.com. Paid for

by The Real Truth About Obama.
5

CA-App–24-25.

RTAA also intended to produce and place on its

website Survivors, an audio ad stating the following:

NURSE: The abortion was supposed to kill him,

but he was born alive. I couldn’t bear to follow

hospital policy and leave him on a cold counter

to die, so I held and rocked him for 45 minutes

until he took his last breath.

MALE VOICE: As an Illinois Democratic State

Senator, Barack Obama voted three times to

deny lifesaving medical treatment to living,

breathing babieswho survive abortions. For four

years, Obama has tried to cover-up his horrendous votes by saying the bills didn’t have clarifying language he favored. Obama has been lying.

Illinois documents from the very committee

Obama chaired show he voted against a bill that

did contain the clarifying language he says he

favors.

Obama’s callousness in denying lifesaving treatment to tiny babies who survive abortions reveals a lack of character and compassion that

should give everyone pause.

Paid for by The Real Truth About Obama, Inc.

CA-App–25, 18-19.

RTAA also intended to broadcast Change and Survivors (collectively “Ads”) as radio advertisements on the

Rush Limbaugh and Sean Hannity radio programs in

heartland statesduring electioneering-communication

2

 “Electioneering communications” are essentially non- 2

express-advocacy, targeted communications mentioning
6

blackout periods thirty days before the Democratic National Convention (July 29-Aug. 28, 2008) and sixty

days before the general election (Sept. 5-Nov. 4, 2008),

so the Ads would have met the electioneering-communication definition. CA-App–25, 19.

RTAA also intended to create on its website digital

postcards setting out then-Senator Obama’s public policy positions on abortion, and viewers would have been

able to send these postcards to friends from the website. One planned postcard would have been similar to

Change, but done in first person and signed “Barack

Obamabortion.” The postcards would have been designed to be the sort of catchy, edgy, entertaining items

popular for circulation on the Internet. CA-App–25, 44-

48.

To raise money for funding its website and content,

the production of the Ads, the employment of persons

knowledgeable about Internet viral marketing, and the

broadcasting of the Ads, RTAA needed to raise funds

by telling potential donors about itself and its projects.

One way RTAA intended to raise funds was with the

following communication:

Dear x,

I need your help. We’re launching a new project to let the public know the real truth about

the public policy positions of Senator Barack

Obama.

Most people are unaware of his radical proabortion views. For example, when he was a

state senator in Illinois, he voted against a state

bill like the federal Born Alive Infant Protection

candidates in 30- and 60-day periods before primary and

general elections. 2 U.S.C. 434(f)(3).
7

Act. That bill merely required that, if an abortionist was trying to abort a baby and the baby

was born alive, then the abortionist would have

to treat that baby as any other newborn would

be treated. Under this law, the baby would be

bundled off to the newborn nursery for care, instead of being left on a cold table in a back room

until dead. It seems like everyone would support

such a law, but, as an Illinois State Senator,

Obama did not. There are lots of other examples

of his radical support for abortion, and we need

to get the word out. That’s where you come in.

A new organization has just been formed to

spearhead this important public-information

effort. It’s called The Real Truth About Obama.

We plan to do some advertising. Since we’re not

a PAC, there won’t be any “vote for” or “vote

against” type of ads—just the truth, compellingly told.

A central planned project is directed at the

world of the Internet. We’ve already reserved

www.TheRealTruthAboutObama.com to set up

a website. Here’s the exciting part. The website

will feature a weekly postcard “signed” by

“Barack Obamabortion.” Like that? While you

are visiting the website, you can send the postcard by email to anyone you designate. What

could be easier?! And the postcards will be done

in a catchy, memorable manner—the sort of

thing that zips around the Internet. Each postcard will feature well-documented facts about

Obama’s views on abortion.

The postcards will also send people to the

website for more real truth about Obama, but
8

we also plan to do a radio ad to do that, too. This

radio ad will give the real truth about Obama’s

abortion position—all properly documented, of

course. Notice the “Truth” part of our name.

Of course it takes money to develop, host,

and maintain a hot-topic website, and to hire

the people who specialize in getting things noticed on the Internet (it’s called viral marketing). So we need your help. We need for you to

send us money. As much as you can donate.

Right away. We need to get the word out. We

know how. We’re ready to roll. Now we need

you.

Your friend for truth,

x

P.S.—Please send your check today. Time is of

the essence. Please send the largest gift you can

invest in this vital project. Together we can get

the word out.

CA-App–26-27.

RTAA intended to raise more than $1,000 with this

fundraising communication and to disburse more than

$1,000 both to broadcast the Ads and to place them

before the public on RTAA’s website. CA-App–27.

But RTAA was chilled from proceeding with these

activities because it reasonably believed that it would

be subject to an FEC and DOJ investigation and a possible enforcement action potentially resulting in civil

and criminal penalties, based on the fact that FEC has

deemed 527s to be PACs, based on (a) a rule defining

“express advocacy” in a vague and overbroad manner,

11 C.F.R. 100.22(b) (broad, contextual express-advocacy test), that might have made the Ads “independent
9

expenditures” and (b) a vague and overbroad approach

to determining whether an organization meets Buckley’s major-purpose test for imposing PAC status. See

FEC, “Political Committee Status . . . ,” 69 Fed. Reg.

68056 (Nov. 23, 2004) (“PAC-Status 1”); PAC-Status 2,

72 Fed. Reg. 5595. CA-App–27, 19.

3

RTAA was also chilled from proceeding because, if

Defendants subsequently deemed RTAA to have been

a PAC while doing its intended activities, then RTAA

would have been required to use “federal funds” (funds

raised subject to federal source and amount restrictions) to send out the fundraising communication, see

FEC Advisory Opinion 2005-13 at 1 (EMILY’s List),4

and RTAA would be in violation for not having used

federal funds for the fundraising communication. CAApp–23.

RTAA’s chill was heightened by the DOJ’s declaration that investigations and criminal prosecutions of

“knowing and willful” violations of these FECA provisions by 527 corporations was a priority, see CAApp–27-28, 49-53.

In sum, RTAA reasonably feared, if it proceeded

with its intended activities: (a) that the Ads (both on

RTAA’s website and as broadcast) would be deemed

express advocacy under 11 C.F.R. 100.22(b) and, if

RTAA was not deemed a PAC, it would be in violation

of FECA for failing to place disclaimers on them and

Some FEC 527 enforcement was based on now-re3

pealed 11 C.F.R. 100.57, some of the principles of which

FEC yet follows in determining when donations in response

to solicitations are deemed regulable “contributions.”

Advisory opinions are available through www.fec.gov 4

or http://saos.nictusa.com/saos/searchao.
10

failing to file an independent expenditure report; (b)

that, if RTAA was deemed to be a PAC under FEC’s

enforcement policy on “political committees” and because publication of the Ads would be considered an

“expenditure,” RTAA would be in violation of FECA for

failure to abide by numerous PAC requirements, including placing disclaimers on the Ads and RTAA’s

website, failure to register and report as a PAC, failure

to use federal funds for fundraising, failure to abide by

limits on contributions to PACs, and failure to abide by

the source limitations imposed on PACs; and (c) in any

event, that RTAA would suffer an intrusive and burdensome investigation and, possibly, an enforcement

action, potentially leading to civil and criminal penalties. So RTAA would not proceed with its intended activities unless it received the judicial relief requested.

CA-App–28, 19.

In addition to the activities set out above, RTAA

intends to participate in materially similar activities in

the future, including broadcasting ads materially similar to Change and Survivors. CA-App–29, 19. RTAA’s

chill was and is irreparable harm because it is the loss

of First Amendment rights, and there is no adequate

remedy at law. CA-App–29.

On July 30, 2008, RTAA filed a pre-enforcement

challenge to three FEC regulations and FEC’s enforcement policy for determining PAC status, facially and as

applied to RTAA’s intended activities. CA-App–57. The

district court denied a preliminary injunction. CAApp–60. The Fourth Circuit affirmed that denial. CAApp–61; RTAO v. FEC, 575 F.3d 342 (4th Cir. 2009).

RTAA petitioned for certiorari, which was granted,

with the Fourth Circuit’s judgment vacated, and “the

case remanded . . . for further consideration in light of
11

Citizens United.” RTAO, 130 S. Ct. 2371 (citation omitted).

On remand, the Fourth Circuit reissued the parts of

its vacated opinion “stating the facts and articulating

the standard for issuance of preliminary injunctions,”

leaving the substantive issues for the district court to

consider first. RTAO v. FEC, 607 F.3d 355 (4th Cir.

2010) (per curiam). On June 16, 2011, the district court

decided cross-motions for summary judgment in favor

of FEC and DOJ on the issues presented here. CAApp–81. On June 12, 2012, the Fourth Circuit affirmed. RTAA, 681 F.3d 544.

Reasons to Grant the Petition

This case has been here before. This court granted

certiorari, vacated the opinion below, and “remanded

. . . for further consideration in light of Citizens

United.” RTAO, 130 S. Ct. 2371 (citation omitted). By

this “GVR” order, the Court indicated that it believed,

in light of its analysis in Citizens United, that there

was “a reasonable probability that the decision below

rest[ed] upon a premise that the lower court would reject given the opportunity for further consideration.”

Lawrence v. Chater, 516 U.S. 163, 167 (1996) (per

curiam). But the courts below ruled the same way on

the merits as they had when this case was first here,

ignoring or misapplying the analysis of Citizens United

and other decision of this Court that required a different outcome.

As described below, this is a case of great national

importance because the federal courts and the FEC

Commissioners themselves are sharply divided on

what constitutes core political speech that is regulable

as “express advocacy” and what standards govern
12

whether onerous political-committee (“PAC”) burdens

may be imposed on organizations engaged in core political speech—with dire consequences for those who mistake where the vague and shifting lines lie (depending

on who fills the chairs at the FEC or a court). FEC

complaints are threatened and filed by political operatives against political adversaries in an attempt to get

others declared PACs, so as to chill, reduce, or silence

their speech—all based on these vague lines.

Circuit splits exist and were sharpened by a recent

Eighth Circuit decision on PAC status in Minnesota

Citizens Concerned for Life v. Swanson, No. 10-3126,

2012 WL 3822216 (8th Cir. Sept. 5, 2012) (en banc)

(“MCCL”). See infra. And the 3-3 split within the FEC

Commissiononthese issues inthis case—express-advocacy and PAC-status standards—has been brought to

light by an advisory-opinion Statement by three Commissioners and votes on rival FEC draft advisory opinions that reveal the severe problems caused by lack of

current resolution of the issues in this case. See infra.

These are problems that profoundly affect the nation and the free-speech rights of citizens as they try to

exercise their sovereign rights to free political speech

and association. These are problems that this Court

has already addressed and answered, but some refuse

to follow what this Court has held.

The solution is simple—a reassertion of, and return

to, this Court’s bright-line tests and applications, as

described next. That solution requires a grant of certiorari in this case.
13

I.

ProtectingCore Political Speech and Association

by Maintaining Established Bright Lines Is a

Matter of Great National Importance.

Central to this case is the vitally important question of how to protect the issue advocacy essential to

our republic. This Court requires bright-line protection

of core political speech and association, but both FEC’s

alternate “expressly advocating” definition and its

PAC-status enforcement policy replace protective,

bright-line tests created by this Court with vague and

overbroad lines that chill speech.

In the seminal Buckley decision, this Court recognized that “the people are sovereign,” that “debate on

public issues should be uninhibited, robust, and

wide-open,” and that FECA 

operate[s] in an area of the most fundamental

First Amendment activities. Discussion of public

issues and debate on the qualifications of candidates are integral to the operation of the system

of government established by our Constitution.

The First Amendment affords the broadest protection to such political expression in order “to

assure (the) unfettered interchange of ideas for

the bringing about of political and social

changes desired by the people.” 

424 U.S. at 14 (citation omitted).

Consequently, “(p)recision of regulation . . . must be

the touchstone in an area so closely touching our most

precious freedoms,” id. at 41, because “vague laws may

not only trap the innocent by not providing fair warning or foster arbitrary and discriminatory application

but also operate to inhibit protected expression by in-
14

ducing citizens to steer far wider of the unlawful zone

. . . than if the boundaries of the forbidden areas were

clearly marked, id. at 41 n.48 (citations and quotation

marks omitted). “Because First Amendment freedoms

need breathing space to survive, government may regulate in the area only with narrow specificity.” Id. (citation omitted).

Buckley applied this required bright-line approach

in creating two tests at issue here: (a) the express-advocacy test and (b) the major-purpose test.

(a) In creating the express-advocacy test, this Court

appliedthe bright-line requirement by holding that the

phrase “‘advocating the election or defeat of’ a candidate” is unconstitutionally vague and overbroad unless

“construed to apply only to expenditures for communications that in express terms advocate the election or

defeat of a clearly identified candidate for federal office,” id. at 44, i.e., “express words of advocacy of election or defeat, such as ‘vote for,’ ‘elect’ . . . ,” id. at 44

n.52. See also id. at 80 (same express-advocacy construction required in disclosure context).

From this magic-words construction of the statutory

term “expenditure” in FECA comes the express-advocacy test, which still governs FECA “expenditures” and

consequently “independent expenditures,” at issue

here. But FEC now enforces a vague, alternate

express-advocacy test at 11 C.F.R. 100.22(b) that ignores the magic-words definition of express advocacy

that this Court established and yet retains. See Part II.

(b) And from this Court’s insistence on bright-line

tests to protect issue advocacy and advocacy groups

came the major-purpose test. The Court held ( in the

disclosure context) that requiring “political committees” to report their “expenditures” posed the “potential
15

for encompassing both issue discussion and advocacy

of a political result”through“vagueness” because “‘political committee’ is defined only in terms of amount of

annual ‘contributions’ and ‘expenditures.’” 424 U.S. at

79. As a result, this Court adopted the construction of

lower courts that “political committee” status may only

be imposed on “organizations that are under the control of a candidate or the major purpose of which is the

nomination or election of a candidate” because such

“[e]xpenditures . . . are, by definition, campaign related.” Id. But FEC now enforces this bright-line,

major-purpose test with vague, overbroad standards

for establishing “major purpose,” and lower courts are

split over whether there is a major-purpose test. See

Part III.

This case was remanded for reconsideration in light

of Citizens United. That case reasserted bright-line

protection for core political speech and association, including the sort of issue advocacy and issue-advocacy

group involved here, and it repudiated vague, overbroad, we-know-it-when-we-see-it tests, 130 S. Ct. at

895-96, such as those in FEC’s challenged regulation

and policy. The analysis in Citizens United compels a

similar speech-protective analysis here, with a different outcome than that in the courts below. And in Citizens United, this Court applied strict scrutiny to the

imposition of PAC-burdens, id. at 898, and only applied

exacting scrutiny to disclosure of a distinctly different

and less burdensome sort of disclosure, id. at 914. Yet

the court below (as do many courts now) employed exacting scrutiny to both the regulation and policy at

issue herein on the mistaken theory that mere “disclosure” is involved. App.11a. But under any standard,

the FEC’s regulation and policy are vague, overbroad,
16

and inconsistent with this Court’s holdings as to the

nature of the express-advocacy and major-purpose

tests—both based on the requirement of bright-line

protection for core political speech.

II.

Express Advocacy Requires Magic Words.

RTAO challenges 11 C.F.R. 100.22(b), FEC’s alternate, non-magic-words, express-advocacy definition as

vague, overbroad, and beyond statutory authority. The

5

appellate court upheld the provision because it said

that the definition is similar to the appeal-to-vote test,

in FEC v. Wisconsin Right to Life, 551 U.S. 449, 469-70

(2007) (“WRTL-II”). App.14-16a. But that is erroneous

as explained below.

A. The Holding Conflicts with Other Circuit Decisions.

The appellate court’s decision conflicts with other

circuit decisions holding that express advocacy requires

FEC has not always enforced the alternate express- 5

advocacy test at 11 C.F.R. 100.22(b) because of cases holding it unconstitutional on both constitutional and statutory

grounds. On August 23, 2012, three FEC Commissioners

voted for “Draft A” of a proposed advisory opinion, which

contained an important history of 100.22(b). See FEC Advisory Opinion 2012-27 (National Defense Committee), Draft

A at 22-35. See supra footnote 4 (accessing advisory-opinion

documents). As noted in the cited portion of Draft A, three

of the six current FEC Commissioners would not enforce

100.22(b) due to the questions about its constitutionality

and statutory authority. These three commissioners also

issued a Statement on Advisory Opinion 2012-11 (Free

Speech) to highlight problems with 100.22(b). See infra at

22a.
17

“express words of advocacy.” Buckley, 424 U.S. at 44

n.52. The Fourth Circuit itself held this very regulation, 100.22(b), unconstitutional for not requiring

magic words, Virginia Society for Human Life v. FEC,

263 F.3d 379, 329 (4th Cir. 2001), and prior decisions 6

held that express advocacy requires magic words, see

North Carolina Right to Life v. Leake, 525 F.3d 274,

283 (4th Cir. 2008) (requires “specific election-related

words”); FEC v. Christian Action Network, 110 F.3d

1049, 1062 (4th Cir. 1997). The panel’s decision also

conflicts with other circuits that have held that it is a

magic-words test. See Faucher v. FEC, 928 F.2d 468,

470 (1st Cir. 1991); FEC v. Central Long Island Tax

Reform, 616 F.2d 45, 53 (2d Cir.1980); Center for Individual Freedom v. Carmouche, 449 F.3d 655, 664-65

(5th Cir. 2006); Anderson v. Spear, 356 F.3d 651, 664

(6th Cir. 2004); Brownsburg Area Patrons Affecting

Change v. Baldwin, 137 F.3d 503, 506 (7th Cir. 1998);

Iowa Right to Life Committee v. Williams, 187 F.3d

963, 969 (8th Cir. 1999) (striking definition patterned

on 11 C.F.R. 100.22(b)); California Pro-Life Council v.

Getman, 328 F.3d 1088, 1098 (9th Cir. 2003) .

7 8

The challenged provision was also held unconstitu- 6

tional by Right to Life of Duchess County v. FEC, 6 F. Supp.

2d 248, 253-54 (S.D. N.Y. 1998), for not employing magic

words.

This decision recognized that even FEC v. Furgatch,

7

807 F.2d 857 (9th Cir. 1987), on which FEC relies for the

challenged regulation, “presumed express advocacy must

contain some explicit words of advocacy.” Getman, 328 F.3d

at 1098. See also American Civil Liberties Union of Nevada

v. Heller, 378 F.3d 979, 985 (9th Cir. 2004) (“‘McConnell [v.

FEC, 540 U.S. 93 (2003),] left intact the ability of courts to

make distinctions between express advocacy and issue ad-
18

B. The Holding Conflicts with this Court’s Decisions.

The panel’s holding also conflicts with this Court’s

holdings that—where the express-advocacy test applies—it is a magic-words test. Buckley clearly said

that the express-advocacy test was an “express words

of advocacy” test and provided examples. 424 U.S. at

44 n.52. In FEC v. Massachusetts Citizens for Life, 479

U.S 238 (1986) (“MCFL”), this Court said that “a finding of ‘express advocacy’ depended upon the use of language such as ‘vote for,’ ‘elect,’ ‘support,’ etc.,” id. at

249 (citation omitted). McConnell repeatedly equated

“express advocacy” with “magic words.” See 540 U.S. at

126,191-93, 217-19.McConnell’s “functionallymeaningless” statement about the express-advocacy line, id. at

193, did not eliminate “express advocacy” as a category

of regulated speech requiring “magic words,” rather

McConnell used that analysis to add regulation of

“electioneering communications” to regulation of

magic-words express advocacy. In WRTL-II, 551 U.S.

449, all members of the Court equated “express advocacy” with “magic words.” See id. at 474 n.7 (Alito, C.J.,

joined by Alito, J.), 495 (Scalia, J., joined by Kennedy

& Thomas, JJ., concurring in part and concurring in

judgment), 513 (Souter, J., joined by Stevens,

vocacy, where such distinctions are necessary to cure vagueness and over-breadth in statutes which regulate more

speech than that for which the legislature has established

a significant governmental interest’” (citation omitted)).

State supreme courts have also held that “express advo- 8

cacy” requires “magic words.” See Brownsburg Area Patrons

Affecting Change v. Baldwin, 714 N.E. 2d 135 (Ind. 1999);

Osterberg v. Peca, 12 S.W. 3d 31 (Tex. 2000).
19

Ginsburg, & Breyer, JJ., dissenting). In Citizens

United, 130 S. Ct. 876, four members of this Court said

that “[i]f ever there was any significant uncertainty

about what counts as the functional equivalent of express advocacy, there has been little doubt about what

counts as express advocacy since the ‘magic words’ test

of Buckley . . . [N]o one has suggested that Hillary[:

The Movie] counts as express advocacy . . . .” Id. at 935

n.8 (citation omitted) (Stevens, Ginsburg, Breyer &

Sotomayor, JJ., concurring in part and dissenting in

part).

C. The Lower Court’s Justification Is Flawed.

The reliance of the appellate court (see supra) on

the similarity of 100.22(b) to WRTL-II’s appeal-to-vote

test, 551 U.S. at 469-70, is misplaced. WRTL-II’s test

is not a free-floating test that may be employed to communications that are not federally defined “electioneering communications.” WRTL-II specifically acknowledged that the test is impermissibly vague absent that

definition. See 551 U.S. at 474 n.7 (controlling opinion

of Roberts, C.J., joined by Alito, J.).

The disagreement of FEC and the district court over

how 100.22(b) applies to the Change ad (see supra at 4)

reveals the test’s unconstitutional vagueness. FEC insists that Change is not express advocacy (Dkt. 31 at

12-13, 27), but the district court, in its pre-remand

opinion, declared that it is: “reasonable people could

not differ that this advertisement is promoting the defeat of Senator Obama.” (Dkt. 77 at 13.) After this

Court’s remand, the district court again decided that

“‘Change’ is plainly the functional equivalent of express advocacy” (App.55a), which would make it express advocacy under that court’s equating of 100.22(b)

with the appeal-to-vote test. But the court was plainly
20

wrong because the “functional equivalent of express

advocacy” was an electioneering communication, in

McConnell, 540 U.S. at 206, and WRTL-II, 551 U.S. at

469-70, not an independent expenditure. An “independent expenditure” contains express advocacy. 2 U.S.C.

431(17). By definition, an “electioneering communication” does not contain express advocacy. 2 U.S.C.

434(f)(3). When a federal oversight agency and a fed9

eral court—both “reasonable”—cannot agree on the

application of a test, the test is unconstitutional and

offers no “‘no security for free discussion. In these conditions it blankets with uncertainty whatever may be

said. It compels the speaker to hedge and trim,’”

Buckley, 424 U.S. at 43 (citation omitted).

The appellate court below dismissed the split between FEC and the district court concerning “Change,”

as not indicating any vagueness “because cases that

fall close to the line will inevitably rise when applying

§ 100.22(b),” and “the disagreement confirms the Commission’s judgment that ‘Change’ does not meet the

requirements of § 100.22(b)” because the test requires

that reasonable persons not disagree. App.22a. But

this response ignores this Court’s requirement for

bright-line tests so speakers need not hedge and trim,

so they can predict in advance whether a communication fits a speech test, and so they are not chilled or

In fact, “‘electioneering communication’ does not in- 9

clude . . . an independent expenditure.” Id. Thus, the conflation of express-advocacy independent expenditures with a

standard created in WRTL-II to limit the (now unconstitutional) corporate ban on electioneering communications

creates serious problems of compliance because speakers do

not know whether to report certain expenditures as independent expenditures or electioneering communications. 
21

ambushed by unexpected enforcement. As noted below,

even members of the FEC split on whether ads fit

100.22(b), which was never a problem under this

Court’s magic-words express advocacy—designed to

prevent just the problem that 100.22(b) creates.

Section 100.22(b) is also beyond statutory authority,

though the appellate court ignores this argument. The

regulation cites as authority 2 U.S.C. 431(17), the “independent expenditure” definition, which regulates

only “an expenditure by a person . . . expressly advocating the election or defeat of a clearly identified candidate.” That definition implements the magic-words,

express-advocacy constructions in Buckley, 424 U.S. 44

(“expenditure” limitation), 80 (“expenditure” disclosure), and MCFL, 479 U.S. at 249 (construing “expenditure” in 2 U.S.C. 441b). There is no congressional authority anywhere for FEC to interpret “expressly advocating” other than as requiring magic words. Moreover,

the only “expenditure” that FEC may regulate is one

“for the purpose of influencing any election for Federal

office,” 2 U.S.C. 431(9), and it was precisely to such “for

the purpose of influencing” language that Buckley gave

“expenditure” an express-advocacy construction to preserve it from vagueness and overbreadth. 424 U.S. at

77, 80.

D. FEC Splits Demonstrate § 100.22(b)’s Unconstitutional Vagueness.

There is a 3-3 split among the FEC Commissioners

concerning 100.22(b) (and the FEC’s PAC-status enforcement policy), and positions of the Commissioners

often differ from positions taken by the FEC Office of

General Counsel in briefing. The details of these splits

are set out clearly in three documents. While word limits here preclude a thorough treatment of these docu-
22

ments, some highlights reveal the necessity of thoroughly reviewing these documents in the merits consideration of this case.

The first document is the Statement on Advisory

Opinion 2011-12 (Free Speech) by FEC Chair Caroline

C. Hunter and Commissioners Donald F. McGahn and

Matthew S. Peterson (“Free-Speech Statement”). 

These Commissioners wrote

to highlight three points: (1) Section 100.22(b)

has been inconsistently applied and given a

sweepingly broad interpretation; (2) the conflation of express advocacy and the functional

equivalent of express advocacy (by claiming that

Section 100.22(b) and the appeal to vote test

adopted in WRTL are the same test) ignores the

Act, creating reporting problems; and (3) a lack

of clarity with regard to expenditures in the political committee context, coupled with an inconsistent application of the major purpose test, has

created confusion as to whether a group is required to register and report as a political committee.

Free-Speech Statement at 3. Appended to this Statement is Attachment A, self-described as “a list of the

factors that the General Counsel’s Office has recommended that the Commission consider, and that several Commissioners have considered and relied upon,

when determining whether or not a communication

constitutes express advocacy under Section 100.22(b).”

Id. at 26 (listing 45 diverse factors). This quote, Attachment, and the Free-Speech Statement reveal why this

Court needs to grant certiorari and clarify and reaffirm

this court’s express-advocacy and major-purpose tests

on which the FEC itself is split.
23

The second two documents are advisory-opinion

drafts A (for which Commissioners Bauerly, Walther,

and Weintraub voted) and B (for which Commissioners

Hunter, McGahn, and Petersen voted) in FEC Advisory

Opinion 2012-27 (National Defense Committee). In 10

Draft B, three Commissioners found four ads in the

advisory opinion request contained express advocacy

but that three ads did not. Draft B at 3. In Draft A,

three Commissioners found that none of the seven ads

contained express advocacy, Draft A at 3, and declared

that they would not enforce 100.22(b) due to problems

of constitutionality and statutory authority, id. at 22-

35, a question the other three Commissioners declined

to directly address (while noting that its application of

the test implied that they would continue to enforce it),

Draft B at 3 n.1. When the Commissioners of a federal

oversight agency—all presumed to be both “reasonable” and experts—cannot agree on the application of

a test, the test is unconstitutional for offering “‘no security for free discussion,’” Buckley, 424 U.S. at 43 (citation omitted). And to further demonstrate the vagueness of the test, comments on AOR 2012-27 by Campaign Legal Center and Democracy 21 (campaign-finance “reform” groups) declared that five of the seven

ads contained express advocacy under 100.22(b). Comments at 2 (available with other advisory-opinion documents). The final document, Advisory Opinion 2012-27,

at 1, said that three ads were not express advocacy and

that the FEC could issue no opinion as to the others.

Moreover, Draft A explained that “the legal difficulAvailable at http://saos.nictusa.com/saos/searchao? 10

SUBMIT=continue&PAGE_NO=-1 (all documents available

at same link, including certifications re votes on drafts).
24

ties associated with intercircuit nonacquiescence are 11

compounded by the practical problems inherent in

grafting such an approach onto communications that

utilize modern media practices.” Draft A at 34. Draft A

proceeds to explain how media that reaches multiple

jurisdictions “would subject nationally broadcast political advertisements to inconsistent regulatory standards” and create serious reporting problems because,

e.g., “the same communication that is an independent

expenditure in the Fourth Circuit would be an electioneering communication in the First Circuit.” Id. at 35 &

n.12.

In sum, 100.22(b) goes beyond any permissible construction of “express advocacy” or “expenditure,” is unconstitutionally vague and overboad, and is “in excess

of the statutory . . . authority” and void under 5 U.S.C.

706.

III.

PAC-Status May Only Be Imposed on Groups

with the Major Purpose of Regulable,

Campaign-Related Activity.

RTAO challenges FEC’s PAC-status enforcement

policy, found in PAC-Status 1, 69 Fed. Reg. 68056, and

PAC-Status 2, 72 Fed. Reg. 5595. PAC-Status 2 cited

11 C.F.R. §§ 100.22(b) and 100.57 (now repealed, but

the principle of which is yet followed, see supra footnote

3) as central elements of FEC’s enforcement policy, 72

Fed. Reg. at 5602-05, so the flaws in those regulations,

supra, are also fatal to this enforcement policy.

Draft A says, “[i]t appears that the Commission has 11

only applied the doctrine of intercircuit nonacquiescence to

this regulation.” Draft A at 33.
25

A third element of the policy is FEC’s interpretation

of Buckley’s major-purpose test. In PAC-Status 2, FEC

declined to adopt a rule for the major-purpose test, declaring that “the major purpose doctrine . . . requires

the flexibility of a case-by-case analysis of an organization’s conduct.” Id. at 5601. FEC’s vague and overbroad

enforcement policy requires “a fact intensive inquiry”

weighing vague and overbroad factors (with undisclosed weight) and “investigations into the conduct of

specific organizations that may reach well beyond publicly available statements,” including all an organization’s “spending on Federal campaign activity” (not

limited to spending on regulable activity) and other

spending, as well as public and non-public statements,

including statements to potential donors. Id.

PAC-Status 2 also indicated that FEC would consider other factors in its ad hoc, totality-of-the-circumstances, major-purpose test when it discussed its application of the policy to some 527 organizations in previous investigations. 72 Fed. Reg. at 5603-04. These included the fact that an entity spent much of its money

“on advertisements directed to Presidential battleground States and direct mail attacking or expressly

advocating,” id. at 5605 (emphasis added), the fact that

groups ceased activity after an election, id., and the

fact that they didn’t make disbursements in state and

local races. Id. In addition, FEC thought that it could

determine a 527 group’s major purpose from internal

planning documents and budgets, id., which would normally be protected by the First Amendment privacy

right and were only obtained because the organization

was subjected to a burdensome, intrusive investigation

(which this approach encourages). Major purpose was

even based on a private thank-you letter to a donor,
26

after the donation had already been made. Id.

The appellate court held that “the Commission, in

its [ad-hoc, case-by-case] policy, adopted a sensible approach to determining whether an organization qualifies for PAC status.” App.29-30a. The court’s analysis

reveals its misunderstanding of the jurisprudence.

A. The Holding Conflicts With Other Circuit Decisions.

The appellate panel’s holding conflicts with another

Fourth Circuit panel in Leake, which held 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 (emphasis added). That approach would examine how

much an advocacy group spends on express-advocacy

“independent expenditures” compared to its total disbursements in a particular year to determine if the

group was a “political committee” for that year. If over 12

fifty percent of a group’s expenditures were for express

advocacy (or for FECA “contributions”), then the major

purpose of the group would be “nominating or electing

candidates,” Buckley, 424 U.S. at 79, and PAC status

could be imposed. There would be no examination of

the non-regulable factors that FEC includes in its enforcement policy.

The appellate panel’s holding also conflicts with

another Fourth Circuit panel in North Carolina Right

to Life v. Bartlett, 168 F.3d 705 (4th Cir. 1999), cert.

denied, 528 U.S. 1153 (2000), which held that the “major purpose” must be “engaging in express advocacy,”

168 F.3d at 712 (emphasis in original), which clearly

See FEC v. GOPAC, 917 F. Supp. 851, 852 (D.D.C. 12

1996) (PAC-status determination done by particular year).
27

requires that the activity considered to determine major purpose must be regulable election-related activity.

13

The appellate panel’s holding also conflicts with

Colorado Right to Life Committee v. Coffman, 498 F.3d

1137 (10th Cir. 2007), which took a similar objective

approach, relying on MCFL for how to determine PAC

status, id. at 1152:

In MCFL, the Court suggested two methods to

determine anorganization’s “major purpose”: (1)

examinationofthe organization’s central organizational purpose; or (2) comparisonofthe organization’s independent spending with overall

spending to determine whether the preponderance of expenditures are for express advocacy or

contributions to candidates. 479 U.S. at 252, 107

S. Ct. 616 n. 6 (noting that MCFL’s “central organizational purpose [wa]s issue advocacy, although it occasionally engage[d] in activities on

behalf of political candidates”); see id. at 262,

107 S. Ct. 616 (noting that “should MCFL’s

independent spending become so extensive that

the organization’s major purpose may be regarded as campaign activity, the corporation

would be classified as a political committee”).

The cited “independent spending” at issue in MCFL

was magic-words express advocacy. See MCFL, 479

U.S. at 249. In the present case, FEC’s enforcement

See also Florida Right to Life v. Lamar, 238 F.3d 1288 13

(11th Cir. 2001) (affirming Florida Right to Life v. Mortham, No. 98-770CIVORL19A, 1999 WL 33204523 (M.D.

Fla. Dec. 15,1999) (“organizations whose major purpose is

engaging in ‘express advocacy,’” id. at *4)).
28

policy conflicts with these bright-line tests for PAC

status, and the appellate court’s holding conflicts with

these decisions.

While other circuit courts have recognized the

major-purpose test, onlyLeake, Bartlett, and Coffman,

14

supra, provide guidance on what activities may be considered in determining major purpose beyond what

MCFLprovided, see supra. And their guidance conflicts

with FEC’s policy.

This issue is hotly debated among those affected by

it, as may be seen in the comments on how major purpose should be determined in response to FEC’s notice

of proposed rulemaking (ending in FEC’s decision in

PAC-Status 2 not to make a rule). See 69 Fed. Reg.

68056. And Professor Foley has published an article on

the subject. See Edward B. Foley, The “Major Purpose”

Test: Distinguishing Between Election-Focused and

Issue-Focused Groups, 31 N. Ky. L. Rev. 341 (2004).

But this Court’s guidance is required to resolve the

See United States v. National Comm. for Impeach- 14

ment, 469 F.2d 1135, 1141 (2d Cir. 1972); FEC v. Machinists Non-Partisan Political League, 655 F.2d 380, 392-93

(D.C. Cir. 1981), cert. denied, 454 U.S. 897 (1981); Florida

Right to Life, 238 F. 3d 1288 (affirming 1999 WL 33204523);

Colorado Right to Life, 498 F.3d at 1153-54; MCCL, No. 10-

3126, 2012 WL 3822216 (8th Cir. Sept. 5, 2012). Federal

district courts have also addressed the test. See, e.g., Richey

v. Tyson, 120 F. Supp. 2d 1298 (S.D. Ala. 2000); Volle v.

Webster, 69 F. Supp. 2d 171 (D. Me. 1999); GOPAC, 917 F.

Supp. 851; New York Civil Liberties Union v. Acito, 459 F.

Supp. 75 (1978). But other courts contest whether there is

a major-purpose test. See infra at footnotes 16-17 and accompanying text.
29

confusion.15

B. The Holding Conflicts With Decisions of This

Court.

The appellate court’s holding clearly conflicts with

thisCourt’s bright-line approachto determining “major

purpose,” which provides no encouragement to intrusive investigations and permits ready determination of

major purpose. Major purpose may be determined by

either an entity’s expenditures, MCFL, 479 U.S. at

U.S. at 262 (major-purpose calculation looks at

express-advocacy independent expenditures inrelation

to total expenditures), or by the organization’s central

Confusion about PAC status and standards in the 15

circuits is particularly evident in Alaska Right to Life Committee v. Miles, 441 F.3d 773 (9th Cir. 2006) (“ARLC”), in

which the Ninth Circuit approved the imposition of PACstyle burdens on an MCFL-corporation, which MCFL forbade, 479 U.S. at 262-64, 253-54. ARLC said the burdens

(imposed on groups making state-defined “electioneering

communications”) were “not particularly onerous,” 441 F.3d

at 791, because they did not “limit the amount that may be

contributed to, or spent by, the entity,” id. But Alaska imposed the same registration and periodic reporting requirements imposed on state PACs, required disclosure of all

transactions, forbade corporate contributions, and required

disbanding to discontinue reporting obligations—all of

which are PAC-style burdens, not the one-time reporting of

a regulated expenditure approved in MCFL for entities

lacking the major purpose of nominating or electing candidates, 479 U.S. at 252-55. ARLC conflicts with Getman, 328

F.3d 1088, which noted that MCFL “recognized that reporting and disclosure requirements,” at issue in ARLC, “are

more burdensome for multi-purpose organizations . . . than

for political action committees whose sole purpose is political advocacy,” id. at 1101.
30

purpose revealed in its organic documents, id. at 252

n.6 (“[O]n this record . . . MCFL[’s] . . . central organizational purpose is issue advocacy.”). The first test determines major purpose based on “an empirical judgment as to whether an organization primarily engages

in regulable, election-related speech,” Leake, 525 F.3d

at 287, i.e., true “contributions” and “expenditures”

would be counted. The second test requires an examination of the entity’s organic documents to determine

if there is an express intention to operate as a political

committee, e.g., by being designated as a “separate

segregated fund” (an internal “PAC”) under 2 U.S.C.

 441b(2)(c).

Another reason for granting certiorari is to reaffirm,

not only how major purpose is determined, see supra,

but also that there is a major-purpose test and that it

controls on which organizations PAC-status may be

imposed. There is a split in the circuits on this issue.

On one side are the courts recognizing the major-purpose test (in varying degrees of precision): the Second,

Fourth, Seventh, Eighth, Ninth (previous panels),

Tenth, Eleventh (previous panel), and D.C. Circuits.16

See FEC v. Survival Educ. Fund, 65 F.3d 285, 295 (2d 16

Cir. 1995); United States v. National Comm. for Impeachment, 469 F.2d 1135, 1141-42 (2d Cir. 1972); Leake, 525

F.3d 274, 287 (4th Cir.); Brownsburg Area Patrons Affecting

Change, 137 F.3d at 505 n.5 (7th Cir. 1998); MCCL, No. 10-

3126, 2012 WL 3822216 (8th Cir. Sept. 5, 2012); California

Pro-Life Counsel v. Randolph, 507 F.3d 1172, 1177 (9th Cir.

2007); California Pro-Life Council v. Getman, 328 F.3d at

1101 n.16 (9th Cir. 2003); New Mexico Youth Organized v.

Herrera, 611 F.3d 669, 677-78 (10th Cir. 2010); Fla. Right

to Life, 238 F.3d at 1289 (11th Cir. 2001) (affirming Fla.

Right to Life v. Mortham, No. 98-770CIVORL19A, 1999 WL
31

On the other side are the First, Ninth, and Eleventh

(recent panel) Circuits, which question whether there

is a test, ignore it, or deny it exists.17

C. The Court’s Justification Is Erroneous.

The appellate court failed to comprehend the need

for a bright-line test that could be easily understood

and quickly applied without resorting to expensive,

intrusive, time-consuming investigations (based on

vague, overbroad criteria) and after-the-fact determinations that a group that thought it was not a PAC

was a PAC (and so in violation of numerous PAC requirements). FEC’s ad-hoc, case-by-case approach

chills free speech and association.

33204523 (M.D. Fla. 1999)); FEC v. Florida for Kennedy

Comm., 681 F.2d 1281, 1287 (11th Cir. 1982); Unity08 v.

FEC, 596 F.3d 861, 867 (D.C. Cir. 2010); Machinists Nonpartisan Political League, 655 F.2d at 392 (D.C. Cir. 1981);

FEC v. EMILY’s List, 581 F.3d 1, 16 n.15 (D.C. Cir. 2009).

See also National Federation of Republican Assemblies v.

United States, 218 F. Supp. 2d 1300, 1330 (S.D. Ala. 2002);

Richey, 120 F. Supp. 2d at 1327 (S.D. Ala. 2000); South

Carolina Citizens for Life v. Davis, slip op., No. 3:00-0124-

19 (D.S.C. 2000) (opinion and order granting preliminary

injunction); Volle, 69 F. Supp. 2d at 174-77 (D. Me. 1999);

New York Civil Liberties Union, 459 F. Supp. at 83-85 (S.D.

N.Y. 1978).

See National Org. for Marriage v. McKee, 649 F.3d 34 17

(1st Cir. 2011); ARLC, 441 F.3d at 786-94; Human Life of

Washington v. Brumsickle, 624 F.3d 990, 1011-12 (9th Cir.

2010); National Org. for Marriage v. Secretary, No. 11-

14193, 2012 WL 1758607 (11th Cir. May 17, 2012).
32

D. FEC’s Application of Its Policy Reveals the

Policy’s Vagueness and Chilling Effect.

A recent FEC document reveals the vagueness and

chilling effect of the FEC PAC-status policy from an

inside view. The Free-Speech Statement (on Advisory

Opinion 2012-11, by Commissioners Hunter, McGahn,

and Petersen, includes a discussion captioned “inconsistent application of section 100.22(b) and the major

purpose test makes determining whether a group is a

political committee difficult for groups who wish to

speak and disclose.” Free-Speech Statement at 20 (capitalization altered). The Statement explains the problem with the FEC’s current policy, as sketched herein,

and pointed to another advisory-opinion document as

setting out their view: “Draft C contains our view of

what that test entails—review of a group’s central organizational purpose and a comparison of that group’s

spending on behalf of candidates with its overall

spending to determine whether a preponderance of the

group’s spending was for the for the election or defeat

of federal candidates. Under current jurisprudence, the

Commission can go no further than that.” Id. at 23

(footnotes omitted).

In sum, because FEC’s enforcement policy goes beyond any permissible constructionofthe major-purpose

test and relies on flawed regulations and policies, is

unconstitutionally vague and overbroad, and is “in excess of the statutory . . . authority . . .” of FEC, it is

void under 5 U.S.C. 706.
33

Conclusion

For the reasons stated, this Court should grant this

petition.

Michael Boos

LAW OFFICE OF MICHAEL

BOOS

Suite 313

4101 Chain Bridge Road

Fairfax, VA 22030

703/691-7717

703-691-7543 (facsimile)

Respectfully submitted,

James Bopp, Jr.

Counsel of Record

Richard E. Coleson

THE BOPP LAW FIRM, PC

1 South 6th Street

Terre Haute, IN 47807

812/232-2434

812/235-3685 (facsimile)

jboppjr@aol.com