No. 10-145

In the Supreme Court of the United States

DAVID KEATING, ET AL., PETITIONERS

v.

FEDERAL ELECTION COMMISSION

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

PHILLIP CHRISTOPHER HUGHEY

Acting General Counsel

DAVID KOLKER 

Associate General Counsel 

KEVIN DEELEY 

Assistant General Counsel

VIVIEN CLAIR

Attorney 

Federal Election Commission

Washington, D.C. 20463

NEAL KUMAR KATYAL

Acting Solicitor General

Counsel of Record

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217
(I)

QUESTION PRESENTED

Whether the en banc court of appeals correctly held

that the reporting, organizational, and administrative

requirements of the Federal Election Campaign Act of

1971, 2 U.S.C. 431 et seq., are constitutional as applied

to the treasurer of a group whose major purpose is the

making of independent expenditures to elect or defeat

clearly identified federal candidates.
(III)

TABLE OF CONTENTS

 Page

Opinions below . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

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

Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

TABLE OF AUTHORITIES

Cases:

Buckley v. American Constitutional Law Found.,

Inc., 525 U.S. 182 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Buckley v. Valeo, 424 U.S. 1 (1976) .............. passim

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

Davis v. FEC, 128 S. Ct. 2759 (2008) . . . . . . . . . . . . . . . 16, 17

Doe v. Reed, 130 S. Ct. 2811 (2010) . . . . . . . . . . . . . . . . . . . 11

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

238 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 18, 23

FEC v. National Conservative Political Action

Comm., 470 U.S. 480 (1985) . . . . . . . . . . . . . . . . . . . . . . . 13

McConnell v. FEC, 540 U.S. 93 (2003) . . . . . . . . . . . 7, 11, 15

NLRB v. Bell Aerospace Co., 416 U.S. 267 (1974) . . . . . . . 24

SEC v. Chenery Corp., 332 U.S. 194 (1947) . . . . . . . . . . . . 24

Shays v. FEC, 511 F. Supp. 2d 19 (D.D.C. 2007) . . . . . . . . 24

The Real Truth About Obama, Inc. v. FEC, 575 F.3d

342 (4th Cir. 2009), vacated on other grounds,

130 S. Ct. 2371 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

United States v. Harriss, 347 U.S. 612 (1954) . . . . . . . . . . 16
IV

Constitution, statutes and regulations: Page

U.S. Const.:

Amend. I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 6, 23

Federal Election Campaign Act of 1971, 2 U.S.C. 431

et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

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

2 U.S.C. 431(4)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

2 U.S.C. 431(8)(A)(i) ............................ 2

2 U.S.C. 431(8)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

2 U.S.C. 431(9)(A)(i) ............................ 2

2 U.S.C. 431(17) ............................... 3

2 U.S.C. 432 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 8

2 U.S.C. 433 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 6, 8

2 U.S.C. 433(a) ................................ 3

2 U.S.C. 433(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

2 U.S.C. 433(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

2 U.S.C. 433(b)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

2 U.S.C. 433(b)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

2 U.S.C. 433(b)(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

2 U.S.C. 434 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

2 U.S.C. 434(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 8

2 U.S.C. 434(c) ................................ 3

2 U.S.C. 434(c)(2)(A)-(C) . . . . . . . . . . . . . . . . . . . . . 3, 18

2 U.S.C. 434(g) ................................ 4

2 U.S.C. 437c(c) ............................... 5

2 U.S.C. 437d(a)(7) ............................. 5

2 U.S.C. 437f .................................. 5

2 U.S.C. 437h ................................. 6
V

Statutes and regulations—Continued: Page

2 U.S.C. 441a(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

2 U.S.C. 441a(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

2 U.S.C. 441b . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13

2 U.S.C. 441b(b)(2)(C) . . . . . . . . . . . . . . . . . . . . . . . . . 12

2 U.S.C. 441b(b)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

2 U.S.C. 441c(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

2 U.S.C. 441d(a) ............................... 4

2 U.S.C. 441d(a)(3) ............................. 4

2 U.S.C. 441d(d)(2) ............................. 4

2 U.S.C. 441e . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Internal Revenue Code (26 U.S.C.):

§ 527 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 24

§ 527(i)(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

28 U.S.C. 1292(a)(1) ................................. 6

11 C.F.R.:

Section 100.5(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Section 100.74 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Section 100.94 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Section 110.11(a)(1) ............................... 3

Section 114.1(a)(2)(iii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Section 114.2(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Sections 114.5-114.8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Section 114.12(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Miscellaneous:

Stephen D. Ansolabehere et al., Why Is There So Little Money in American Politics?, J. Econ. Persp.,

Winter 2003, at 105 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
VI

Miscellaneous—Continued: Page

FEC Advisory Op. 2010-09, 2010 WL 3184267 (July

22, 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

FEC Advisory Op. 2010-11, 2010 WL 3184269 (July

22, 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

72 Fed. Reg. (2007):

p. 5595 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

p. 5597 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

p. 5599 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

p. 5601 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

pp. 5601-5602 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

p. 5605 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

PAC Outsourcing, LLC, News Items (Apr. 21, 2010),

www.pacout.com/news_full. php?ID=39 . . . . . . . . . . . . 21

SpeechNow.org, Statement of Organization (Sept. 13,

2010), http://images.nictusa.com/pdf/379/

10030422379/10030422379.pdf ...................... 9
(1)

In the Supreme Court of the United States

No. 10-145

DAVID KEATING, ET AL., PETITIONERS

v.

FEDERAL ELECTION COMMISSION

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1-26)

is reported at 599 F.3d 686. The order of the district

court making findings of fact and certifying constitutional questions to the en banc court of appeals (Pet.

App. 31-53) is unreported.

JURISDICTION

The judgment of the court of appeals (Pet. App. 27-

28) was entered on March 26, 2010. On June 17, 2010,

the Chief Justice extended the time within which to file

a petition for a writ of certiorari to and including July

23, 2010, and the petition was filed on that date. The

jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).
2

STATEMENT

1. The Federal Election Campaign Act of 1971

(FECA), 2 U.S.C. 431 et seq., imposes certain reporting,

disclosure, and organizational requirements on entities

falling within the FECA definition of the term “political

committee.” This case concerns whether those requirements violate the First Amendment as applied to a particular organization.

a. FECA defines the term “political committee” to

include “any committee, club, association, or other group

of persons which receives contributions aggregating in

excess of $1,000 during a calendar year or which makes

expenditures aggregating in excess of $1,000 during a

calendar year.” 2 U.S.C. 431(4)(A). The term “contribution” is defined to include “any gift * * * or anything

of value made by any person for the purpose of

influencing any election for Federal office.” 2 U.S.C.

431(8)(A)(i). The term “expenditure” includes “any purchase, payment, * * * or anything of value, made by

any person for the purpose of influencing any election

for Federal office.” 2 U.S.C. 431(9)(A)(i). 

In Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam),

this Court adopted a limiting construction of the term

“political committee.” The Court concluded that the

statutory definition of “political committee” raised potential overbreadth concerns and that the phrase “for

the purpose of . . . influencing,” used in defining the

incorporated term “expenditure,” was vague. Id. at 77,

79. The Court therefore narrowly construed the definition, so that a group will not be deemed a “political committee” under FECA unless, in addition to crossing the

$1000 threshold of contributions or expenditures, the

organization either is “under the control of a candidate”

or has as its “major purpose * * * the nomination or
3

election of a candidate.” Id. at 79. The Court explained

that expenditures of “political committees,” as so narrowly defined, “can be assumed to fall within the core

area sought to be addressed by Congress. They are, by

definition, campaign related.” Ibid.

Once a group qualifies as a political committee, it has

ten days to file a statement of organization with the

Federal Election Commission (FEC or Commission).

2 U.S.C. 433(a). The political committee must thereafter

file periodic reports disclosing receipts and disbursements in excess of $200 in a calendar year (and, in

some instances, receipts and disbursements of lesser

amounts). See 2 U.S.C. 433-434. Political committees

must also identify themselves through “disclaimers” on

all of their general public political advertising, on their

websites, and in mass e-mails. 11 C.F.R. 110.11(a)(1).

b. Persons that are not political committees are not

subject to the requirements discussed above, but they

trigger different reporting requirements when they

make an “independent expenditure.” That term is defined as an expenditure “expressly advocating the election or defeat of a clearly identified candidate” that “is

not made in concert or cooperation with or at the request or suggestion” of the candidate or the candidate’s

agents or a political party committee or its agents.

2 U.S.C. 431(17). A person (other than a political committee) must file a report for each quarter in which the

person has made independent expenditures, if the aggregate total spent on independent expenditures exceeds $250 for the calendar year. 2 U.S.C. 434(c). Each

quarterly report contains information about the independent expenditure and each person who made a contribution in excess of $200 “for the purpose of furthering

an independent expenditure.” 2 U.S.C. 434(c)(2)(A)-(C).
4

1 The other petitioners are prospective donors to SpeechNow, and

one, Edward Crane, is also a voting “member.” Pet. App. 34, 38-39.

SpeechNow itself is not a party to the proceedings in this Court. See

Pet. ii; note 3, infra.

All persons, including political committees, that

make independent expenditures shortly before Election

Day that exceed certain thresholds must disclose information about the expenditures to the Commission within

24 or 48 hours. 2 U.S.C. 434(g). And all persons that

make independent-expenditure communications through

certain specified media must include in each communication a disclaimer providing information about who paid

for the communication. See 2 U.S.C. 441d(a). The disclaimer must provide the name of, and contact information for, the maker of the independent expenditure and

state whether the communication is authorized by any

candidate or by any candidate’s authorized committee.

2 U.S.C. 441d(a)(3). Radio or television independent

expenditures must contain an additional oral or visual

disclaimer stating that the person paying for the communication “is responsible for the content of this advertising.” 2 U.S.C. 441d(d)(2).

2. SpeechNow.org is an unincorporated nonprofit

association organized under District of Columbia law

and registered as a “political organization” under the

Internal Revenue Code, 26 U.S.C. 527. Pet. App. 34.

Petitioner David Keating is the founder and one of five

voting “members” of SpeechNow and serves as its president and treasurer. Id. at 35, 256. He administers all of

the association’s affairs. Id. at 35, 37. In particular, as

treasurer, he is responsible for complying with the applicable requirements of FECA. Id. at 50.1

SpeechNow’s purpose is to “expressly advocat[e] the

election of candidates” who agree with, “and the defeat
5

2 Before filing suit, SpeechNow sought an advisory opinion from the

Commission, see 2 U.S.C. 437f, to address whether FECA requires

SpeechNow to register as a political committee and to treat the donations it receives as “contributions.” Pet. App. 179-221. The Commission

could not issue the requested opinion at that time because it lacked a

sufficient number of voting members. Id. at 222-223; see 2 U.S.C.

437c(c), 437d(a)(7).

of candidates who oppose,” SpeechNow’s positions on

the “rights to free speech and association.” Pet. App. 37.

SpeechNow plans to undertake its express advocacy

through advertisements on television and other media.

Id. at 42. SpeechNow’s bylaws state that it will not coordinate its expenditures with candidates or political parties and that it will not make contributions to candidates

or political committees. Id. at 36. The bylaws also provide that SpeechNow will not accept any donations from

candidates, political parties, political committees, corporations, labor organizations, national banks, federal government contractors, or foreign nationals. Id. at 35.

3. In February 2008, the individual petitioners and

SpeechNow filed a complaint alleging that various provisions of FECA governing political committees violated

the First Amendment as applied to them. Pet. App.

286.2

 They filed an amended as-applied complaint in

July 2008. Id. at 295. As relevant here, petitioner

Keating contended that, although SpeechNow did not

object to complying with FECA’s disclaimer and reporting requirements for independent expenditures by

groups other than political committees, see pp. 3-4, supra; Pet. 2; Pet. App. 48-49, the full disclosure and organizational requirements applicable to political committees cannot constitutionally be applied to SpeechNow.

Pet. App. 22.
6

3 An organization like SpeechNow is not among those authorized to

seek review under Section 437h, so SpeechNow was not a party to the

proceedings before the en banc court of appeals on the certified questions. Pet. App. 6. In the district court, petitioners and SpeechNow

also sought a preliminary injunction to prevent the Commission from

enforcing against them FECA’s contribution limits. Id. at 286-287. The

district court denied preliminary injunctive relief, and petitioners and

SpeechNow appealed under 28 U.S.C. 1292(a)(1). The court of appeals

then consolidated the preliminary-injunction appeal with the en banc

Section 437h proceedings. Pet. App. 6. Because the preliminary-injunction appeal is not at issue here, SpeechNow is not a party in this

Court. Pet. ii.

Petitioners sued under a special judicial-review provision, 2 U.S.C. 437h, which permits individuals to request the en banc court of appeals to determine the constitutionality of “any provision” of FECA. Under Section 437h, the district court makes findings of fact and

certifies nonfrivolous constitutional questions to the

court of appeals sitting en banc.3

4. The district court certified five questions of law to

the en banc court of appeals. Pet. App. 7-8, 33-34. Only

the fourth certified question is at issue here. That question was: 

Whether the organizational, administrative, and continuous reporting requirements set forth in 2 U.S.C.

§§ 432, 433, and 434(a) violate the First Amendment

by requiring David Keating, SpeechNow.org’s president and treasurer, to register SpeechNow.org as a

political committee, to adopt the organizational

structure of a political committee, and to comply with

the continuous reporting requirements that apply to

political committees.

Ibid. The first three certified questions, which are not

at issue here, concerned petitioners’ claim that FECA’s
7

4 The fifth certified question concerned whether Keating as treasurer could postpone complying with the registration and reporting

requirements for a political committee if the court of appeals decided

that those requirements could constitutionally be applied to Keating

and SpeechNow. Pet. App. 8, 34. The court of appeals unanimously

upheld the applicable FECA timing requirements, id. at 25, 28, and

petitioners have not sought review of that ruling in this Court. 

limits on contributions to SpeechNow violated petitioners’ First Amendment rights. Id. at 33.4

The district court also found certain facts, to which

the parties substantially agreed. Pet. App. 34-53; see id.

at 33. In particular, the court found that if SpeechNow

were to accept donations in excess of $1000, SpeechNow

satisfies the other criteria for political-committee status

and would be required under FECA to register as a political committee. Id. at 49; see id. at 273.

5. The en banc court of appeals unanimously found

“no constitutional infirmity in the application of the organizational, administrative, and reporting requirements set forth in certified question[ ] 4.” Pet. App. 25.

The court of appeals therefore answered that question

in the negative. Separately, the court of appeals held

that FECA’s contribution limitations “cannot be constitutionally applied against SpeechNow and the individual

[petitioners].” Id. at 27-28; see id. at 10-20. The government has not sought review of the latter holding.

In rejecting petitioners’ challenge to the reporting

and organizational requirements, the court of appeals

contrasted disclosure requirements with regulations

limiting a person’s ability to spend money on political

speech. “[D]isclosure requirements,” the court stated,

“‘impose no ceiling on campaign-related activities,’ and

‘do not prevent anyone from speaking.’” Pet. App. 20

(quoting Buckley, 424 U.S. at 64, and McConnell v. FEC,
8

540 U.S. 93, 201 (2003)) (citation omitted). As a consequence, the court explained, this Court has held that

disclosure requirements are subject to less stringent

review than are restrictions on expenditures. To establish a disclosure requirement’s validity, the government

may “point to any ‘sufficiently important’ governmental

interest that bears a ‘substantial relation’ to the disclosure requirement.” Id. at 21 (quoting Citizens United

v. FEC, 130 S. Ct. 876, 914 (2010)). The court of appeals

also noted that an interest can be sufficiently important

to support a disclosure requirement even if it would not

support an outright restriction on speech such as an expenditure limit. Id. at 20-21.

Applying that standard, the court of appeals concluded that two governmental interests—in information

and enforcement—are “sufficiently important * * * to

justify requiring SpeechNow to organize and report to

the FEC as a political committee.” Pet. App. 25. First,

the court explained that this Court had upheld organizational and reporting requirements—including the same

requirements at issue here—on the basis of the government’s interest in providing the electorate with information about the sources that fund election activity. Id. at

21 (discussing Buckley, McConnell, and Citizens

United). In particular, the court of appeals noted, this

Court in Buckley upheld “the requirements of §§ 432,

433, and 434(a) at issue here.” Ibid.

Second, the court of appeals concluded that the required disclosures for political committees also serve the

important governmental interest in “deter[ring] and

help[ing to] expose violations of other campaign finance

restrictions.” Pet. App. 25. The court cited as an example the restrictions “barring contributions from foreign

corporations or individuals.” Ibid.
9

The court of appeals further explained that the applicable reporting and organizational requirements impose

only a minimal burden on SpeechNow. Pet. App. 22-24.

The court noted petitioners’ expressed intent that

SpeechNow would comply with the disclaimer and disclosure requirements that apply to individuals or groups

that are not political committees. See id. at 22-23. The

court concluded that the additional reporting requirements that would apply to SpeechNow if it became a

political committee are “minimal” because SpeechNow

intends only to make independent expenditures, and the

attendant disclosure requirements overlap substantially

with the requirements with which SpeechNow concedes

it must comply. Ibid.; see id. at 24. The court further

found that organizational requirements such as designating a treasurer and retaining records would not “impose much of an additional burden upon SpeechNow,

especially given the relative simplicity with which

SpeechNow intends to operate.” Id. at 23.

6. On September 13, 2010, after the petition for a

writ of certiorari was filed, the FEC received SpeechNow’s Statement of Organization registering as a political committee and appointing Keating treasurer. See

Statement of Organization, http://images.nictusa.com/

pdf/379/10030422379/10030422379.pdf.

ARGUMENT

The court of appeals correctly rejected petitioners’

as-applied challenge to FECA’s disclosure, organizational, and administrative requirements for political

committees, and its disposition of that challenge does

not conflict with any decision of this Court. Petitioners

do not assert that the judgment conflicts with any deci-
10

5 Many political committees incorporate for liability purposes. See

11 C.F.R. 114.12(a). 

sion of another court of appeals. Further review therefore is not warranted.

The ruling that petitioners challenge does not restrict the amount of money that SpeechNow may raise

and spend on independent communications in support of

(or in opposition to) candidates for federal office. Unlike

the plaintiff organization in Citizens United before this

Court decided that case, SpeechNow may spend as much

money as it can raise. And under the court of appeals’

separate holding, not challenged here, SpeechNow can

take in contributions from individuals in unlimited

amounts. Nor, despite petitioners’ repeated assertions

to the contrary, see Pet. 2, 4, 11, 12, 21, 26, does the

question presented concern any distinction between corporate and unincorporated entities. Rather, the question in this case is whether the Constitution precludes

the application to SpeechNow of the reporting, disclosure, and organizational obligations that apply to all

political committees, incorporated and unincorporated

alike.5

1. a. The court of appeals correctly applied the

standard of exacting scrutiny that this Court has used

for more than 30 years in reviewing reporting and disclosure provisions. In cases from Buckley to Citizens

United, this Court has distinguished disclosure, reporting, and administrative requirements from limits on expenditures. Buckley, 424 U.S. at 64. That constitutional

distinction reflects the fact that “disclosure requirements * * * do not prevent anyone from speaking.”

Citizens United, 130 S. Ct. at 914 (internal quotation

marks and citations omitted). Accordingly, the Court in
11

Buckley adopted a standard of review, “exacting scrutiny,” 424 U.S. at 64, that differs from the “strict scrutiny” this Court applies to expenditure limits, see, e.g.,

Citizens United, 130 S. Ct. at 898. As the Court recently

explained, “‘exacting scrutiny’ * * * requires a ‘substantial relation’ between the disclosure requirement

and a ‘sufficiently important’ governmental interest.”

Id. at 914 (quoting Buckley, 424 U.S. at 64, 66).

Since Buckley, the Court has used “exacting scrutiny” as the standard for evaluating various campaignrelated disclosure requirements. See, e.g., Doe v. Reed,

130 S. Ct. 2811, 2818 (2010) (disclosure of signatures on

referendum petitions); McConnell, 540 U.S. at 196;

Buckley v. American Constitutional Law Found., Inc.,

525 U.S. 182, 202 (1999) (disclosure of expenditures to

get referendum on ballot). Indeed, although the Court

in Buckley focused on the interests that support disclosure of contributions to candidates, the Court did not

hold that the validity of FECA’s reporting and disclosure requirements depended on a group’s particular

spending pattern. See 424 U.S. at 60-84. Because the

FECA provisions that petitioners challenge in this

Court do not limit SpeechNow’s ability to raise or spend

funds to speak as it sees fit, but require only that

SpeechNow disclose the origins and destination of those

funds (and take accompanying administrative steps), the

court of appeals properly applied this Court’s intermediate “exacting scrutiny” standard rather than the strict

scrutiny applicable to speech prohibitions.

b. Petitioners contend (Pet. 10, 21-22) that the court

of appeals should have applied strict scrutiny. Petitioners’ argument fails because it is based on the flawed

premise (Pet. 21) that the disclosure requirements at

issue in this case are analogous to the expenditure limi-
12

tation at issue in Citizens United—i.e., that requiring

SpeechNow to register as a political committee is equivalent to forbidding Citizens United from electioneering

except through a “separate segregated fund,” which is

only one type of political committee among many. 2

U.S.C. 431(4)(B); 11 C.F.R. 100.5(b). Despite petitioners’ repeated attempts to liken SpeechNow to the corporation at issue in Citizens United (e.g., Pet. 2, 9-10, 15,

16, 17, 19, 20, 21-22, 25), the analogy fails. Unlike the

separate segregated fund alternative (what this Court

called the “PAC alternative”) that this Court considered

in Citizens United, the requirement that SpeechNow

register as a political committee does not prevent the

organization from engaging in campaign advocacy in its

own name and with its own treasury funds.

In both Citizens United and FEC v. Massachusetts

Citizens for Life, Inc., 479 U.S. 238 (1986) (MCFL), this

Court considered 2 U.S.C. 441b, which precluded corporations from spending their treasury funds to expressly

advocate the election or defeat of a federal candidate.

Although a corporation could form a separate segregated fund to finance express advocacy, the fund could

not use money from the corporation for that advocacy.

See 2 U.S.C. 441b(b)(2)(C); 11 C.F.R. 114.1(a)(2)(iii),

114.2(b)(2). Rather, it could raise money only from individuals having specified connections with the corporation, and then only under various rules concerning the

time, manner, and frequency of solicitation. See 2

U.S.C. 441b(b)(4); 11 C.F.R. 114.5-114.8.

In Citizens United, this Court concluded that Section

441b was “a ban on corporate speech[,] notwithstanding

the fact that a PAC created by a corporation can still

speak,” in part because “[a] PAC is a separate association from the corporation.” 130 S. Ct. at 897; see MCFL,
13

479 U.S. at 252 (plurality opinion) (“[T]he corporation is

not free to use its general funds for campaign advocacy

purposes.”). The Court also concluded that PACs were

burdensome and expensive to establish and administer.

Citizens United, 130 S. Ct. at 897-898. For those reasons, the Court treated Section 441b as “a ban on

speech” warranting strict scrutiny. Id. at 898.

The FECA provisions at issue here impose no such

prohibition. SpeechNow is not barred from speaking,

nor is it required to create a separate entity to do so.

Indeed, SpeechNow is not a corporation. Pet. App. 34.

Accordingly, both before and after Citizens United,

SpeechNow was free to spend unlimited amounts on independent expenditures expressly advocating the election or defeat of federal candidates, and to do so without

creating a separate segregated fund. See FEC v. National Conservative Political Action Comm., 470 U.S.

480, 490-501 (1985). And under a different holding of the

court of appeals that is not at issue here (see Pet. App.

10-20, 27-28; p. 7, supra), SpeechNow can receive unlimited contributions from any individual donor.

Accordingly, petitioners are incorrect in arguing

(Pet. 22) that, under Citizens United, a requirement to

register as a political committee is subject to strict scrutiny. Although the Court characterized the politicalcommittee reporting and registration requirements as

“burdensome” in the context of a corporation’s creating

a separate segregated fund (i.e., setting up a separate

entity to engage in express advocacy while the corporation itself was prohibited from doing so), this case involves no “ban on speech.” Compare Citizens United,

130 S. Ct. at 897, 898 (bans on speech require strict scrutiny), with id. at 914 (even if burdensome, disclosure

requirements “do not prevent anyone from speaking”
14

6 Indeed, disclosure of funding sources is even more important with

respect to SpeechNow than for most other political committees, which

and are not reviewed under strict scrutiny) (citation

omitted).

2. a. The court of appeals correctly applied this

Court’s precedents in recognizing two important governmental interests that support the disclosure and administrative requirements at issue here. Pet. App. 21-22,

24-25. Indeed, this Court expressly recognized both of

those interests in Buckley. 

First, the required data inform the electorate “as to

where political campaign money comes from.” Buckley,

424 U.S. at 66. Information about expenditures expressly supporting and opposing candidates helps voters

“to define more of the candidates’ constituencies,” id. at

81 (upholding FECA’s independent expenditure reporting requirements for individuals and groups other than

political committees), and to identify “the interests to

which a candidate is most likely to be responsive,” id. at

66-67. Most recently, in Citizens United, the Court held

that “the informational interest alone is sufficient” to

sustain a requirement to disclose “who is speaking about

a candidate shortly before an election.” 130 S. Ct. at

915-916. And this Court applied that holding to disclosure of the funding sources of advertisements “even if”

those advertisements “only pertain[ed] to a commercial

transaction,” i.e., urged viewers to watch a candidaterelated movie. Id. at 915. Information about the sort of

express electoral advocacy in which SpeechNow plans to

engage, Pet. App. 37, 44, is even more central to an informed consumer in “the political marketplace” than

was the information required to be disclosed in Citizens

United. 130 S. Ct. at 915.6
15

are limited to raising money from individuals in amounts no greater

than $5000. Under the court of appeals’ decision, petitioner may raise

money in unlimited amounts, and one or a few individuals may now

finance substantial portions of SpeechNow’s operations.

Second, the Court in Buckley stated that FECA’s

“recordkeeping, reporting, and disclosure requirements

are an essential means of gathering the data necessary

to detect violations of the contribution limitations.”

424 U.S. at 67-68. Similarly in McConnell, the Court

upheld mandatory disclosure requirements based on the

interest in “gathering the data necessary to enforce

more substantive electioneering restrictions.” 540 U.S.

at 196; see id. at 200-201 (upholding compelled disclosure of executory contracts to avoid creating “a significant loophole” in disclosure requirements); id. at 237

(upholding broadcast station recordkeeping provisions

to “provide an independently compiled set of data for

purposes of verifying candidates’ compliance with the

disclosure requirements and source limitations of

[campaign-finance law]”). As the court of appeals correctly concluded (Pet. App. 24-25), the requirements

challenged here serve the important governmental interest in deterring and exposing violations of campaign

finance restrictions. For example, SpeechNow’s bylaws

state that the organization will not accept contributions

from foreign nationals or federal government contractors. See id. at 35; see also 2 U.S.C. 441c(a) (prohibition

of contributions by government contractors), 441e (prohibition of contributions and donations by foreign nationals). Full reporting and disclosure will help the

FEC and the public monitor SpeechNow’s compliance

with these restrictions.

b. Petitioners do not address these important governmental interests directly. Rather, they contend that
16

these interests must be invalid because they would have

supported requiring Citizens United and MCFL “to become PACs.” Pet. 24. But as explained above, in neither Citizens United nor MCFL did the Court consider

a requirement to register the organization itself as a

political committee. Those plaintiffs did not meet the

“major purpose” criterion for political-committee status,

much less devote themselves entirely to electoral advocacy as SpeechNow does, and their spending could not

be presumed to be campaign-related.

Contrary to the suggestion of petitioners (Pet. 30)

and their amici (Br. 2, 25), anticorruption interests are

not the only valid basis for disclosure requirements. As

the court of appeals correctly recognized, “[b]ecause

disclosure requirements inhibit speech less than do contribution and expenditure limits,” this Court “has not

limited the government’s acceptable interests to anticorruption alone.” Pet. App. 20-21. Thus, even though

the Court in Citizens United invalidated FECA’s ban on

corporate-financed independent expenditures because it

concluded that independent expenditures pose no danger of corruption, it held that the informational interest

justified mandatory disclosure regarding the same expenditures. 130 S. Ct. at 908-909, 913-916. That holding

was based in turn on Buckley, in which the Court upheld

disclosure requirements while invalidating a cap on

spending. Id. at 915 (citing Buckley, 424 U.S. at 75-76).

Likewise, the Court had earlier upheld registration and

disclosure requirements for lobbyists even though Congress cannot constitutionally ban lobbying itself. See

ibid. (citing United States v. Harriss, 347 U.S. 612, 625

(1954)).

Petitioners’ reliance (Pet. 22-23) on Davis v. FEC,

128 S. Ct. 2759 (2008), is misplaced. In Davis, this Court
17

struck down a set of asymmetrical contribution limits,

under which a federal candidate’s decision to spend

large amounts of personal funds on his own campaign

triggered increased limits on contributions to his opponents. See id. at 2770-2774. The Court then concluded

that, because the accompanying disclosure requirements

“were designed to implement the asymmetrical contribution limits” that the Court had invalidated, those requirements “cannot be justified” by any legitimate governmental interest. Id. at 2775. Unlike in Davis, the

disclosure requirements at issue here promote the enforcement of valid substantive provisions of campaign

finance law, as the court of appeals correctly recognized.

Pet. App. 21-22, 24-25; see p. 15, supra. And as Citizens

United confirms, an informational interest may justify

requiring disclosure of the funding for independent expenditures even when the expenditures themselves may

not be limited. See 130 S. Ct. at 915.

c. The court of appeals correctly concluded that the

government’s important informational and enforcement

interests extend to the full range of information that

SpeechNow will be required to disclose if it becomes a

political committee. That disclosure includes information about contributions toward SpeechNow’s administrative expenses. As the court of appeals stated (Pet.

App. 24), “the public has an interest in knowing who is

speaking about a candidate and who is funding that

speech, no matter whether the contributions were made

towards administrative expenses or independent expenditures.”

In MCFL, the Court struck down political-committee

reporting and registration requirements for certain

issue-oriented organizations that only “occasionally

make independent expenditures,” i.e., those “whose ma-
18

jor purpose is not campaign advocacy.” 479 U.S. at 252-

253, 263. Such groups need only identify each person

who contributed more than $200 “for the purpose of furthering an independent expenditure.” 2 U.S.C.

434(c)(2)(A)-(C); see p. 3, supra. The Court explained,

however, that if MCFL’s independent campaign spending became its major purpose, MCFL would have to

abide by the rules applicable to entities whose “primary

objective is to influence political campaigns,” that is,

political committees. 479 U.S. at 262. Those rules include the organizing, reporting, and administrative obligations that petitioners challenge here. 

4. Petitioners also contend (Pet. 4-5, 15-16) that, in

the circumstances of this as-applied challenge, the additional reporting and administrative obligations applicable to political committees impose an unconstitutionally

excessive burden on SpeechNow. The court of appeals

correctly rejected that claim, and its holding—which is

specific to organizations that have adopted the particular set of self-imposed restrictions that SpeechNow follows, see Pet. App. 35-36—does not warrant further review.

a. Petitioner Keating is a veteran political activist

who leads the flourishing Club for Growth PAC, has

worked for other PACs, and put in place the systems for

those entities to ensure that their required reports were

filed properly with the Commission. FEC Exh. 11, 08-

CV-248 Docket entry No. 45-1, at 3-4, 6, 8-9. Keating

has stated that he is “sure” that he “can handle” the duties of a treasurer, and that he “[g]enerally” understands the reporting requirements of nonconnected political committees. Id. at 46; FEC Exh. 103, 08-CV-248

Docket entry No. 45-8, at 3. Thus, Keating is demonstrably capable of complying with the organizational and
19

reporting requirements for SpeechNow. His wish to

devote more of his “spare time” (Pet. 4) to other activities does not differentiate him from any other person

who has obligations under FECA, much less convert a

constitutionally permissible obligation into an unconstitutional one.

b. As the court of appeals concluded, the organizational requirements that petitioners challenge, such as

designating a treasurer and retaining records, do not

“impose much of an additional burden upon SpeechNow,

especially given the relative simplicity with which

SpeechNow intends to operate.” Pet. App. 23. Keating

is already the treasurer of SpeechNow and has direct knowledge of the group’s finances and activities. See

id. at 37-38. The Statement of Organization for SpeechNow, see 2 U.S.C. 433(b), required Keating to furnish

such basic information as “the name, address, and type

of committee” (here, a nonconnected committee); “the

name, address, and position of the custodian of books

and accounts of the committee” (Keating); “the name

and address of the treasurer of the committee” (Keating); and “a listing of all banks, safety deposit boxes, or

other depositories used by the committee.” 2 U.S.C.

433(b)(1), (3), (4) and (6). Keating recently filed the

Statement of Organization registering SpeechNow as a

political committee, see p. 9, supra, which further confirms the absence of any reason to suppose that supplying this information will be unduly burdensome.

c. The court of appeals also correctly concluded

that, “[b]ecause SpeechNow intends only to make independent expenditures, the additional reporting requirements that the FEC would impose on SpeechNow if it
20

7 Because SpeechNow was, until recently, registered as a Section 527

organization under the Internal Revenue Code (Pet. App. 34), Keating

was already required to keep detailed financial records and file periodic

financial reports to comply with IRS requirements. See Pet. 6 (acknowledging that SpeechNow “must * * * report certain information

to the IRS”). Because SpeechNow is now registered with the FEC as

a political committee, Keating is no longer required to file periodic

financial reports with the IRS. See 26 U.S.C. 527(i)(6). 

8 For instance, petitioners are incorrect in arguing (Pet. 4-5) that

Keating will have to disclose the fair market value of the portion of his

home used for SpeechNow’s purposes. Keating volunteers his services

to SpeechNow without pay (Pet. App. 272), and he does not thereby

make a reportable contribution. See 2 U.S.C. 431(8)(B); 11 C.F.R.

100.74; see also 11 C.F.R. 100.94 (engaging in Internet activities and

using computers, software, and other equipment at home not considered contributions).

9 Petitioners plan initially to contribute a total of $121,700 to

SpeechNow and, as of August 2008, had identified 75 other individuals

were a political committee are minimal.” Pet. App. 23. 7

The independent-expenditure disclosures by SpeechNow

would include some of the same information that political committees must report. See id. at 22-23. And because SpeechNow is not a political party committee and

intends to engage in limited activities, Keating would

not have to fill out the majority of the schedules about

which petitioners complain (Pet. 4-5).8

d. Petitioners suggest that the cost of complying

with the requirements for political committees is sufficiently high to chill election-related speech. Pet. 28.

Although petitioners brought an as-applied challenge,

they offered no evidence that SpeechNow will be unable

to afford to take the steps necessary to comply with

the challenged FECA requirements. See Pet. App. 23-

24 (noting that SpeechNow already expected over

$120,000 in planned contributions).9

 Instead, they cite
21

who have indicated that they wish to contribute. See Pet. App. 24, 38-

39, 41; see also id. at 23-24 (en banc court rejected SpeechNow’s contention that it cannot comply with the reporting requirements until it

knows if it will have enough money to spend, explaining that “[t]his is

a specious interpretation of the facts” since SpeechNow already had

more than $120,000 in planned contributions from petitioners and dozens more individuals waiting to donate).

a political-science article as support for the proposition

that “PACs spend approximately half of their total revenues on compliance costs and fundraising.” Pet. 28 (citing Stephen D. Ansolabehere et al., Why Is There So

Little Money in American Politics?, J. Econ. Persp.,

Winter 2003, at 105, 108 (Ansolabehere)). That is an

inaccurate characterization of the cited article, which

simply refers to “fundraising and other expenses” without indicating what percentage is attributable to fundraising or breaking down “other expenses” into categories. Ansolabehere 108. The article thus provides no

figures for compliance costs as distinguished from, for

example, rent or candidate research costs. A recent

survey of the political-committees of leading Fortune

100 companies shows that reporting and compliance responsibilities in fact account for only 15% of politicalcommittee staff time on average, and that roughly 80%

of the political committees surveyed have two or fewer

employees. See PAC Outsourcing, LLC, News Items

(Apr. 21, 2010), www.pacout.com/news_full. php?ID=39.

5. Finally, petitioners (Pet. 29-39) and their amici

(Br. 25-28) contend that the “major purpose” test for

political-committee status should be clarified or abandoned. That contention is not properly presented in this

case. In the proceedings below, petitioners did not dispute that SpeechNow would qualify as a political committee under the existing “major purpose” test once it
22

10 Petitioners cite (Pet. 28 n.6) two FEC advisory opinions as support

for their claim that the court of appeals’ opinion has caused confusion

that this Court should now “clarify.” But as noted above, that decision

did not discuss, much less alter, the criteria for determining an organization’s “major purpose.” In any event, the entities that requested

those advisory opinions did not question, as petitioners do, whether

FECA’s political-committee organizational, reporting, and disclosure

requirements would apply to them. Rather, the requesters primarily

inquired whether they may solicit and accept unlimited contributions,

as SpeechNow now can, in light of the court of appeals’ holding in this

case concerning the application of FECA’s contribution limits. See p.

7, supra. Indeed, both advisory-opinion requests stated that the entities in question would file regular reports in compliance with the requirements for political committees. FEC Advisory Op. 2010-11, 2010

WL 3184269 (July 22, 2010); FEC Advisory Op. 2010-09, 2010 WL

3184267 (July 22, 2010). 

met the $1000 contribution threshold. The court of appeals accordingly did not address the question.10

In any event, petitioners identify no sound reason for

this Court now to reconsider the “major purpose” element of the statutory definition that the Court adopted

in Buckley, see 424 U.S. at 79, and that the FEC, the

lower courts, and regulated parties have relied upon for

more than three decades. Petitioners criticize the test

for “replac[ing] the strict scrutiny” standard (Pet. 36),

but the “major purpose” test is not a standard of review.

Instead, it is a constitutionally based narrowing construction of the FECA definition of “political committee.”

Petitioners also contend that a group’s major purpose to support or oppose a candidate is a necessary, but

not a sufficient condition under the Constitution for the

group’s becoming a political committee. Pet. 31, 34. But

this Court in Buckley nowhere suggested that any additional condition, beyond the one the Court itself eluci-
23

dated, would be needed to make the statutory definition

of “political committee” constitutional. In particular,

contrary to petitioners’ assertion (Pet. 30), the Court did

not hold that posing “a threat of corruption” rather than

having the major purpose of electoral advocacy is the

“constitutional touchstone” for determining whether a

group is a political committee. See 424 U.S. at 79-81; pp.

14-15, supra (explaining this Court’s repeated holdings

that important interests other than the anticorruption

interest may justify disclosure requirements).

Petitioners also offer an interpretation of the “major

purpose” test that no court has endorsed and that petitioners did not urge below. Noting this Court’s references to groups “under the control of a candidate” or

whose major purpose is “the nomination or election of a

candidate,” Buckley, 424 U.S. at 79 (emphases added),

petitioners suggest (Pet. 33) that the term “political

committee” is limited to groups dedicated to the election

or defeat of a single specific candidate, and does not encompass groups that support or oppose a larger class of

candidates. The Court introduced the “major purpose”

test, however, not to exclude from “political committee”

status groups that support or oppose multiple federal

candidates, but to protect the First Amendment rights

of “groups engaged purely in issue discussion.” 424 U.S.

at 79. 

In MCFL, the Court considered a newsletter that

advocated the election of a number of candidates.

479 U.S. at 243-244. The Court stated that, if MCFL’s

“campaign activity” became the organization’s major

purpose, MCFL would “automatically” be treated as a

political committee. Id. at 262. That analysis indicates

that an exclusive organizational focus on a single candidate is not a prerequisite to “political committee” status.
24

Petitioners’ interpretation also cannot be reconciled

with FECA’s recognition of multicandidate political

committees, see 2 U.S.C. 441a(a)(2) and (4); indeed, under petitioners’ theory, the term “multicandidate political committee” would be an oxymoron.

Petitioners also object (Pet. 37-38) to the manner in

which the FEC makes major-purpose determinations.

When confronted with rulemaking petitions asking that

the Commission classify nearly all Section 527 organizations as political committees, the Commission decided,

as a matter of discretion, to implement the “major purpose” test on a case-by-case basis instead of by rulemaking. See Political Committee Status, Supplemental Explanation and Justification, 72 Fed. Reg. 5595

(2007); see also, e.g., SEC v. Chenery Corp., 332 U.S.

194, 203 (1947) (“[T]he choice made between proceeding

by general rule or by individual * * * litigation is one

that lies primarily in the informed discretion of the administrative agency.”); NLRB v. Bell Aerospace Co.,

416 U.S. 267, 292-295 (1974). The Commission’s decision

was upheld in Shays v. FEC, 511 F. Supp. 2d 19 (D.D.C.

2007); accord The Real Truth About Obama, Inc. v.

FEC, 575 F.3d 342, 350-351 (4th Cir. 2009) (refusing to

preliminarily enjoin, inter alia, the FEC’s case-by-case

approach to the “major purpose” test), vacated on other

grounds, 130 S. Ct. 2371 (2010). The Commission had

explained that no general rule would produce the correct

result in all cases, but that a case-by-case approach provided the flexibility necessary to take into account

the individual characteristics of a group. Shays, 511

F. Supp. 2d at 30; 72 Fed. Reg. at 5597, 5599, 5601-5602.

Petitioners do not identify any administrative decision in which they believe that the FEC misidentified a

particular group’s “major purpose.” And, contrary to
25

the contentions of petitioners and their amici, the FEC

can discern a group’s “major purpose” without conducting “a profoundly burdensome inquiry into every aspect

of a group’s activities.” Pet. 35; see Committee for

Truth in Politics Amicus Br. 26-27. Sources such as the

group’s public statements, fundraising appeals, disclosure reports, charters, or bylaws usually provide the

relevant facts. See 72 Fed. Reg. at 5601, 5605 (describing sources the Commission considers in its “major purpose” analysis). In any event, because making independent expenditures appears to be SpeechNow’s sole

purpose, whatever difficulties of administration the “major purpose” test might cause in its application to other

organizations (see Pet. 37-38) are not present here.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

PHILLIP CHRISTOPHER HUGHEY

Acting General Counsel

DAVID KOLKER 

Associate General Counsel 

KEVIN DEELEY 

Assistant General Counsel

VIVIEN CLAIR

Attorney 

Federal Election Commission

NEAL KUMAR KATYAL

Acting Solicitor General

SEPTEMBER 2010