No. 13-5008

ORAL ARGUMENT HAS NOT YET BEEN SCHEDULED 

IN THE

United States Court of Appeals 

for the District of Columbia Circuit ______________ 

STOP THIS INSANITY, INC., et al., 

Appellants, 

v. 

FEDERAL ELECTION COMMISSION, 

Appellee. ______________ 

On Appeal From the 

United States District Court for the District of Columbia 

in Case No. 12-1140 (BAH) ______________ 

REPLY BRIEF OF APPELLANTS 

______________ 

DAN BACKER

DB CAPITOL

STRATEGIES, PLLC 

717 King Street 

Suite 300 

Alexandria, VA 22314 

202-210-5431 

dbacker@dbcapitolstrategies.com 

PATRICIA E. ROBERTS

WILLIAM & MARY LAW 

SCHOOL APPELLATE 

AND SUPREME COURT 

CLINIC 

P.O. Box 8795 

Williamsburg, VA 23187 

757-221-3821 

perobe@wm.edu 

TILLMAN J. BRECKENRIDGE

TARA A. BRENNAN

REED SMITH LLP 

1301 K Street, NW 

Washington, D.C. 20005 

202-414-9200 

tbreckenridge@reedsmith.com 

June 6, 2013 Counsel for Appellants 

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TABLE OF CONTENTS

Page 

TABLE OF AUTHORITIES .................................................................................... ii 

GLOSSARY OF ABBREVIATIONS ....................................................................... v 

SUMMARY OF THE ARGUMENT ........................................................................ 1 

ARGUMENT ............................................................................................................. 3 

I. THE LEADERSHIP FUND HAS INDEPENDENT FIRST 

AMENDMENT SPEECH RIGHTS. .................................................... 3 

II. THE GOVERNMENT HAS NO INTEREST IN 

RESTRICTING THE LEADERSHIP FUND’S SPEECH. .................. 6 

A. Strict Scrutiny Applies To The Contribution, Source, 

And Solicitation Restrictions. ..................................................... 6 

B. The Government Has No Interest In Restricting The 

Leadership Fund’s Non-Contribution Speech Or 

Contributions Thereto. ................................................................ 8 

C. The Solicitation Prohibition Does Not Further An AntiCoercion Interest And The Leadership Fund’s Plan Of 

Action Nonetheless Addresses Such Concerns. ....................... 12 

D. The Act, As Applied Here, Burdens Speech. ........................... 15 

III. THE LEADERSHIP FUND DID NOT WAIVE ITS SECTION 

441b(a) CHALLENGE. ...................................................................... 17 

IV. APPELLANTS ARE ENTITLED TO INJUNCTIVE RELIEF. ........ 17 

CONCLUSION ........................................................................................................ 20 

CERTIFICATE OF COMPLIANCE 

CERTIFICATE OF FILING AND SERVICE 

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TABLE OF AUTHORITIES*

CASES

Americans for Safe Access v. DEA, 

706 F.3d 438 (D.C. Cir. 2013) ............................................................................... 5 

Austin v. Mich. Chamber of Commerce, 

494 U.S. 652 (1990) ............................................................................................. 15 

Buckley v. Valeo, 

424 U.S. 1 (1976) ...............................................................................................6, 9 

*Citizens Against Rent Control v. City of Berkeley, 

454 U.S. 290 (1981) ................................................................................ 10, 11, 19 

*Citizens United v. FEC, 

558 U.S. 310 (2010) ............................................................................ 3, 4, 5, 9, 19 

EMILY’s List v. FEC , 

581 F.3d 1(2009) ................................................................................................8, 9 

Davis v. FEC, 

554 U.S. 724 (2008) ............................................................................................. 16 

Elrod v. Burns, 

427 U.S. 347 (1976) ............................................................................................. 18 

FEC v. Massachusetts Citizens for Life, Inc., 

479 U.S. 238 (1986) ............................................................................................. 16 

FEC v. Nat'l Conservative Political Action Comm., 

470 U.S. 480 (1985). .............................................................................................. 4 

FEC v. Wisconsin Right to Life, Inc., 

551 U.S. 449 (2007) ............................................................................................. 18 

First Nat'l Bank of Boston v. Bellotti, 

435 U.S. 765 (1978) ............................................................................................... 5 

 

*

 Authorities upon which Appellants chiefly rely are marked with asterisks. 

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Hill v. Colorado, 

530 U.S. 703 (2000) ............................................................................................... 4 

*McConnell v. FEC, 

540 U.S. 93 (2003) .............................................................................................6, 7 

N.Y. Times v. Sullivan, 

376 U.S. 254 (1964) ............................................................................................. 19 

Pickering v. Board of Educ. Twp. High School, 

391 U.S. 563 (1968) ............................................................................................. 11 

SpeechNow.org v. FEC, 

599 F.3d 686 (D.C. Cir. 2010) ........................................................................ 8, 15 

Speiser v. Randall, 

357 U.S. 513 (1958) ............................................................................................. 11 

U.S. v. Int’l Union United Auto., Aircraft & Agr. Implement Workers of Am., 

352 U.S. 567 (1957) ............................................................................................. 15 

STATUTES

2 U.S.C. § 441a(a)(1)(C) ............................................................................... 8, 15, 19 

2 U.S.C. § 441a(a)(3) .................................................................................... 8, 15, 19 

2 U.S.C. § 441b(b)(4)(A)(i) .......................................................................... 8, 15, 20 

2 U.S.C. § 4441b(a) ............................................................................................ 8, 15 

REGULATIONS

75 Fed. Reg. 13223 (Mar. 19, 2010) .......................................................................... 9 

OTHER AUTHORITIES

Dave Manual, Median Household Income in the United States, available at 

http://www.davemanuel.com/median-household-income.php (last visited Aug. 

22, 2012) ............................................................................................................... 13 

FEC Advisory Op. 2010-09, (Club for Growth), 

2010 WL 3184267 (July 22, 2010) ...................................................................... 14 

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How Much Does the Average American Make?, available at 

http://www.mybudget360.com/how-much-does-the-averageamerican-makebreaking-down-the-us-household-income-numbers/ (last visited Aug. 22, 2012)

 .............................................................................................................................. 13 

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GLOSSARY OF ABBREVIATIONS 

ABBREVIATION DEFINITION 

 

AB Appellee’s Brief 

Act The Federal Election Campaign Act 

AOB Appellants’ Original Brief 

The Commission Federal Election Commission 

JA Joint Appendix 

The Leadership Fund Stop This Insanity, Inc. Employee 

Leadership Fund 

MCFL FEC v. Massachusetts Citizens for Life, 

Inc., 479 U.S. 238 (1986) 

NCPAC FEC v. Nat'l Conservative Political 

Action Comm., 470 U.S. 480, 494 

(1985) 

NRWC Nat’l Right to Work Comm.v. FEC, 459 

U.S. 197 (1982) 

PAC Political Action Committee 

SSF Separate Segregated Fund 

STI Stop This Insanity, Inc. 

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SUMMARY OF THE ARGUMENT 

The Commission spends much of its brief making a full-throated 

endorsement of disclosure requirements even though no disclosure requirements 

are challenged here. Between the Commission’s focus on unchallenged disclosure 

requirements and its attempt to refocus the case on the Leadership Fund’s 

sponsoring organization, rather than the Leadership Fund itself, in its 

“Counterstatement of the Issue Presented,” the Commission establishes that it has 

missed what this case is about. 

This case is primarily about the Leadership Fund—an independent legal 

entity—and its right to speak. The Commission does not dispute that the 

Leadership Fund is a separate entity with its own speech rights, yet it ignores the 

myriad arguments and substantive discussion the Leadership Fund provided in the 

opening brief on the real issue presented here: whether the Leadership Fund has a 

constitutional right to solicit and accept contributions from members of the general 

public so long as they are kept in a non-contribution account. As secondary 

matters, the case also implicitly addresses the rights of potential contributors and 

sponsoring organizations to associate and speak by providing funds to the 

Leadership Fund. 

With respect to the Leadership Fund’s right to speak, the appellants 

established in the opening brief that the Supreme Court has recognized only one 

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governmental interest in restricting political speech—the anti-corruption interest. 

The appellants further established that the anti-corruption interest does not apply 

here. The Commission apparently agrees, as it does not claim that the anticorruption interest supports the government’s speech restrictions as applied to the 

Leadership Fund. Additionally, the Commission has abandoned the other flawed 

interests asserted by the district court. 

Rather than defend the district court’s ruling, the Commission asks this 

Court to adopt a new interest for restricting political speech—the disclosure 

interest. But it offers no reason why this Court should vastly expand this 

government interest in compelling speech (by requiring disclosure) so that it can 

give the government the power to muzzle speakers simply by failing to require 

disclosure. There is none. If Congress wishes separate segregated funds (“SSFs”) 

to disclose contributors, sponsorship funds, or any other aspect of an SSF’s 

existence, the Commission’s arguments here can be appropriately raised. But in 

this case, arguments over the value of disclosure requirements amount to nothing 

more than a straw man. 

The Court should not be distracted by the vigor of the Commission’s defense 

of disclosure requirements. No disclosure requirements are at issue here. And in 

light of the fact that the Commission has no response to the arguments raised in the 

opening brief, the district court’s decision should be reversed. 

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ARGUMENT 

I. THE LEADERSHIP FUND HAS INDEPENDENT FIRST 

AMENDMENT SPEECH RIGHTS. 

The Leadership Fund is organized as a separate segregated fund and 

therefore has independent First Amendment rights. Yet the Commission’s entire 

argument is dependent upon re-directing the Court’s focus to the rights of Stop 

This Insanity, Inc. (“STI”) and ignoring that this case is primarily brought by the 

Leadership Fund. It is the Leadership Fund whose rights are most trampled by the 

Federal Election Campaign Act (the “Act”) prohibiting the Leadership Fund from 

opening a non-contribution account and soliciting and receiving contributions from 

the general public. 

STI and the Leadership Fund are separate legal entities, and the Commission 

admits as much. AB 28. Thus, each possesses an independent right to speak 

regardless of the Leadership Fund’s role as a connected political action committee 

(“PAC”), for which it receives both specific benefits and specific burdens. 

Citizens United v. FEC, 558 U.S. 310, 337 (2010). That the Leadership Fund is 

organized as an SSF does not justify depriving it of the same robust First 

Amendment speech and associational rights that protect the full-throated political 

speech of other PACs, individuals, labor unions, corporations, and non-profits. 

The Supreme Court has long recognized that its “foundational First Amendment 

cases” are grounded in the recognition that “citizens must be able to discuss issues, 

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great or small, through the means of expression they deem best suited to their 

purpose.” Hill v. Colorado, 530 U.S. 703, 781 (2000). Indeed, the Supreme Court 

has expressly rejected the notion that a PAC’s “form of organization or method of 

solicitation diminishes [its] entitlement to First Amendment protection.” FEC v. 

Nat'l Conservative Political Action Comm. (“NCPAC”), 470 U.S. 480, 494 (1985). 

The Leadership Fund fully addressed this point over 10 pages of the AOB. AOB 

18-27. The Commission did not argue that SSFs do not have free speech rights 

simply by virtue of the fact that they are connected organizations, nor could it. 

Rather, the Commission strives to misdirect the analysis toward STI and 

away from the independent rights of the Leadership Fund. But in Citizens United, 

the Supreme Court expressly recognized that an SSF is a separate association, 

distinct from its connected corporation. 558 U.S. at 337. Accordingly, the fact 

that an SSF could engage in some speech did not cure the constitutional maladies 

in banning its connected corporation’s speech. Id. Nor is the inverse true—that 

because a corporation’s speech is not banned, a connected SSF’s may be silenced. 

Moreover, it is irrelevant that the sponsoring organization establishes the 

SSF. AB 27. Once established, the SSF is its own entity. An SSF cannot choose 

to organize itself, AB 26, but neither can any other organization. The key point is 

that, once organized, an SSF exists separate and apart from its sponsoring 

organization, and it exists as a collection of people who wish to speak. Thus, it 

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does not follow that “no SSF can ever exist apart from the [sponsoring 

organization’s] desire to engage in [political] spending.” AB 27. 

The Commission’s theory could have dangerous, wide-ranging implications. 

Under its reasoning, the government can restrict the speech of wholly-owned 

subsidiaries of corporations because they do not exist separately from the control 

of the company that owns them. No PAC exists separately from the desire of its 

contributors to speak. Allowing restrictions on speech based on the ability of those 

forming the organization to speak cannot be a proper application of the First 

Amendment. 

Therefore, it is irrelevant whether STI chooses to speak, how much it 

chooses to speak, or why it chooses to speak or not speak.1

 STI is a separate 

organization, and its ability to speak is no more justification for restricting the 

 

1

 The Commission asserts that if the only issue here is the Leadership Fund’s 

independent activity, then STI would “seem to lack” a redressable injury-in-fact 

and would have no Article III standing. AB 28. That is beside the point of 

whether the Leadership Fund is an independent entity with its own speech rights. 

See Americans for Safe Access v. DEA, 706 F.3d 438, 443 (D.C. Cir. 2013) 

(holding that “to proceed to the merits of [Appellants’] claims, we need only find 

one party with standing”). In any event, the Commission has not moved to dismiss 

STI, nor would such a motion have merit. Just as Glengary LLC and the individual 

appellants have constitutional interests in contributing to the Leadership Fund so 

that their voices may be heard, so does STI. See Citizens United, 558 U.S. at 349 

(“Political speech does not lose First Amendment protection ‘simply because its 

source is a corporation.’”) (quoting Bellotti, 435 U.S. at 784). 

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Leadership Fund’s speech as does the right to speak of any other company, person, 

or organization. 

II. THE GOVERNMENT HAS NO INTEREST IN RESTRICTING THE 

LEADERSHIP FUND’S SPEECH. 

A. Strict Scrutiny Applies to the Contribution, Source, and 

Solicitation Restrictions. 

The source and solicitation restrictions are subject to strict scrutiny. The 

Commission argues that limitations on the amount of contributions are subject to 

intermediate scrutiny, citing Buckley v. Valeo, 424 U.S. 1 (1976) and relying most 

heavily on McConnell v. FEC, 540 U.S. 93 (2003). AB 34-36. The Commission 

ignores that this case is about (1) whether certain people may contribute at all, and 

(2) whether the Leadership Fund may solicit contributions from the general public, 

which necessarily conveys political speech. These restrictions are far more 

burdensome and thus command a higher level of scrutiny 

In McConnell, the Supreme Court explained that limitations on the amount

an individual may contribute are subject to intermediate scrutiny because 

“contribution limits ‘leave the contributor free to become a member of any 

political association and to assist personally in the association’s efforts on behalf of 

candidates,’ and allow associations ‘to aggregate large sums of money to promote 

effective advocacy.’” 540 U.S. at 136 (citations omitted). The Court further stated 

that “[t]he ‘overall effect’ of dollar limits on contributions is ‘merely to require 

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candidates and political committees to raise funds from a greater number of 

persons.’” Id. 

The reason the Court ruled a lower level of scrutiny was appropriate in 

McConnell is undermined by the source restrictions here. SSFs cannot raise funds 

from a greater number of persons because all but a narrowly defined class are 

prohibited from contributing. And the solicitation restrictions directly prohibit 

core political speech, AOB 42, which is not the case with respect to limits on the 

amount a person can contribute to a party or candidate. 

The Commission only makes a passing argument against the appellants’ 

analysis in the opening brief, stating that none of the authorities cited specifically 

referred to SSFs. AB 37. That is, of course, irrelevant. The Commission makes 

no effort to explain why SSFs (and their potential contributors ) receive a lower 

level of scrutiny over restrictions on their speech. As is explained above, infra, § 

I., there is no reason to differentiate among organizational forms to determine the 

weight of their free speech rights. 

Regardless, the Court need not resolve the level of scrutiny applicable here. 

Under any level of analysis, the source and solicitation restrictions as applied to the 

Leadership Fund are unconstitutional. 

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B. The Government Has No Interest In Restricting The Leadership 

Fund’s Non-Contribution Speech Or Contributions Thereto. 

Free speech analysis requires weighing the burden on speech against the 

asserted governmental interest. See SpeechNow.org v. FEC, 599 F.3d 686, 692 

(D.C. Cir. 2010). The burden here is obvious: the Leadership Fund’s ability to 

speak is limited by restrictions on accepting funds for non-contribution 

expenditures, 2 U.S.C. §§ 441a(a)(1)(C) and 441a(a)(3); source prohibitions, § 

4441b(a); and solicitation restrictions, § 441b(b)(4)(A)(i). See, § II.D., post. And 

there is no countervailing interest. The Commission has correctly abandoned all of 

the district court’s reasoning as to the government’s interests in restricting the 

Leadership Fund’s speech. It has correctly abandoned the invalid anti-distortion 

interest; it has correctly abandoned the invalid equalization interest, and most 

importantly, it has correctly abandoned the inapplicable anti-corruption interest. 

In the opening brief, the appellants noted that “[i]n the context of restricting 

political speech in connection with campaign financing, the Supreme Court has 

only recognized one interest that may outweigh the First Amendment interests: 

preventing quid pro quo corruption or the appearance of such corruption.” AOB 

28 (citing SpeechNow, 599 F.3d at 692). The Commission does not refute that. 

Citizens United, EMILY’s List v. FEC , 581 F.3d 1(2009), and SpeechNow are 

based on the principle that non-contribution expenditures do not give rise to actual 

or apparent quid pro quo corruption and therefore may not constitutionally be 

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limited or proscribed. Citizens United, 558 U.S. at 356; see also Buckley, 424 U.S. 

at 25. Accordingly, this case does not implicate the anti-corruption interest. 

The Commission has no response. The Commission’s reasoning—relying 

on EMILY’s List footnote 7—that EMILY’s List is inapplicable because the Court

“repeatedly emphasized that its ‘constitutional analysis of non-profits applies only 

to non-connected non-profits’ . . . while explicitly disclaiming to address the 

constitutionality of FECA as applied to SSFs.” AB 47 (citing EMILY’s List, 581 

F.3d at 8 n.7), is disingenuous. In the Commission’s notice that it was deleting 

various regulations in response to EMILY’s List, the Commission expressly 

adopted a commentator’s argument that footnote 7 “was simply a description of 

how the term ‘non-profit entities’ was to be used in the opinion because the term 

‘non-profit entities’ does not appear in the Act.” Explanation and Justification for 

Final Rules on Funds Received in Response to Solicitations, 75 Fed. Reg. 13223, 

13224 (Mar. 19, 2010). In the Commission’s own words: “Although the court 

defined the term non-profit entities as not including SSFs, the court explicitly 

ordered the District Court to ‘vacate the challenged regulations,’ referring to [the 

regulations] in their entirety. The court provides no exception for SSFs.” Id. 

The Commission’s attempt to distinguish SpeechNow and EMILY’s List by 

noting that they do not address disclosure requirements, AB 49, also fails. It is part 

of the Commission’s overall attempt to recast the issue in this case as one of a 

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“constitutional right to conceal such political spending.” AB 39. That claim 

suffers from two faulty premises. The first is that this case involves a challenge to 

disclosure requirements. There is no such challenge here. The second is that it is 

constitutionally permissible to restrict speech because courts have found it 

constitutionally permissible to compel speech based on the disclosure interest. 

That is not so, and the Commission does not identify a single case in which the 

Supreme Court has ruled that a disclosure interest justifies restrictions on speech 

rather than an area where Congress may require disclosure. See e.g., AB 42-43 

(stating that eight Justices in Citizens United agreed that the Act’s disclosure 

requirements were “constitutionally permissible”) (emphasis added). 

In Citizens Against Rent Control, the Court noted that an ordinance limiting 

contributions to PACs formed to support or oppose ballot measures submitted to 

the public placed an “impermissible restraint” on freedom of association and “the 

freedom of expression of groups and those individuals who wish to express their 

views through committees.” Id. at 299. The Court rejected disclosure as an 

interest justifying the restraint, holding that “[t]he integrity of the political system 

will be adequately protected if contributors are identified in a public filing 

revealing the amounts contributed; if it is thought wise, legislation can outlaw 

anonymous contributions.” Id. at 299-300. Accordingly, because there was “no 

significant state or public interest in curtailing debate and discussion of a ballot 

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measure,” the “limits on contributions which in turn limit[ed] expenditures plainly 

impair[ed] freedom of expression” and were struck down. Id. 

It is a bedrock constitutional principle that the government cannot condition 

a benefit on the surrender of First Amendment rights. See Pickering v. Board of 

Educ. Twp. High School, 391 U.S. 563, 568 (1968) (rejecting that “teachers may 

constitutionally be compelled to relinquish the First Amendment rights they would 

otherwise enjoy as citizens to comment on matters of public interest in connection 

with the operation of the public schools in which they work”); Speiser v. Randall, 

357 U.S. 513, 518 (1958) (holding that because a tax exemption is a “privilege” or 

“bounty” does not preclude its denial from constituting an impermissible 

infringement of speech). But that is exactly what the Commission seeks to do. 

Congress has not yet changed disclosure requirements for SSFs in light of Citizens 

United. But such Congressional inaction cannot justify the continued 

unconstitutional suppression the Leadership Fund ’s independent speech. In such a 

scenario, the statutory “tail” wags the First Amendment “dog.” 

Under the Commission’s theory, the government could simply undo Citizens 

United and restrict the speech of corporations, labor unions, non-connected PACs 

and non-profit entities simply by granting disclosure exemptions. The appellants 

made this point in the opening brief, AOB 50, and the Commission has not 

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articulated any limiting principle in response. There is none under the 

Commission’s reasoning. 

In sum, the Commission cannot unconstitutionally enforce a statute because 

its constitutionally permissible application creates an “anomalous effect” Congress 

would not have contemplated before part of the statute was found unconstitutional. 

If Congress wants to ensure that contributions are disclosed to the public, 

Congress’ only potentially constitutional remedy is to amend the exemption it 

created and foster more public disclosure of corporate solicitations for SSFs. 

C. The Solicitation Prohibition Does Not Further An Anti-Coercion 

Interest and the Leadership Fund’s Plan of Action Nonetheless 

Addresses Such Concerns. 

The appellants established that the anti-coercion interest is not served by 

prohibiting the Leadership Fund from making targeted solicitations to people who 

are not part of the restricted class or by making generalized solicitations, like radio 

and television ads. AOB 46-52. The Commission’s responses are inapposite and 

confused. For instance, the Commission responds to the point that other 

regulations prohibit coercion by stating that the Leadership Fund has not “pledged 

to abide by these restrictions.” AB 54. Of course the Leadership Fund would 

abide by the restrictions. They are law. And if the Leadership Fund did not abide 

by the provisions, the Commission could enforce them. 

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Similarly, without support, the Commission claims that Congress has 

determined that solicitations to employees “are inherently coercive.” AB 52. But 

the Leadership Fund does not challenge limitations on how often it can solicit 

employees. In any event, if Congress had determined such solicitations were 

inherently coercive, it would not have allowed them. Yet it specifically allowed 

direct solicitations to the employees. Given the fact that some direct solicitations 

to the restricted class are not too coercive for Congress, it only stands to reason 

that direct solicitations to others that the restricted class will not be privy to and 

general solicitations on radio and television that restricted class members might 

overhear are not unduly coercive because they are not directed in any meaningful 

way at the employees as apart from the general public. 2 

 

2

 The Commission’s argument that the ability to solicit unlimited amounts for noncontribution expenditures twice yearly will “coerce” employees, AB 53, while 

soliciting up to $5,000 from employees twice yearly is not coercive, ignores the 

historical context in which the $5,000 limit was passed. The median household 

income in the United States is currently $46,326. See How Much Does the 

Average American Make?, available at http://www.mybudget360.com/how-muchdoes-the-averageamerican-make-breaking-down-the-us-household-incomenumbers/ (last visited Aug. 22, 2012). In the year Congress passed these 

restrictions and exemptions, the year 1976, the median household income was 

$10,962 in nominal terms. Dave Manual, Median Household Income in the United 

States, available at http://www.davemanuel.com/median-household-income.php 

(last visited Aug. 22, 2012). And yet, in 1976, the nominal contribution limit was 

nearly half that median household income: $5,000. That means Congress allowed 

a corporation to solicit a maximum contribution of 45.6% of an average 

employee’s median household income, twice per year. These data demonstrate that 

Continued on following page 

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Indeed, the superficial nature of the Commission’s concern that the 

Leadership Fund’s proposed non-contribution expenditure solicitations to the 

general public could coerce the employees of its connected organization, AB50-53, 

is revealed by the Commission’s Club for Growth Advisory Opinion. See FEC 

Advisory Op. 2010-09, (Club for Growth), 2010 WL 3184267, at *3 (July 22, 

2010) (“Club for Growth AO”). In the Club for Growth AO, the Commission 

agreed that the corporation, Club for Growth, Inc. (the “Club”) could establish an 

independent expenditure-only PAC (the “Club PAC”) that could solicit and accept 

contributions from the general public even if the Club paid for the PAC’s 

establishment, administrative, and solicitation expenses. Id. It did not express a 

coercion concern. Indeed, the Commission argues here that STI can engage in the 

same speech and solicitations the Leadership Fund requests through a super PAC. 

AB 32, 42. So, clearly, no anti-coercion interest is served under the Commission’s 

view. Similarly, the Commission fails to justify its concern over coercion of 

suppliers, AB 54, in light of the fact that a corporation can solicit suppliers through 

other forms of PACs by the Commission’s own admission, AB 32. 

 

Continued from previous page 

it is not the quantitative contribution limits that prevent coercion—otherwise 

Congress would have chosen a lower amount. 

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Accordingly, the Commission can point to no interests sufficient to justify 

prohibiting the Leadership Fund from soliciting the general public for noncontribution expenditures. See U.S. v. Int’l Union United Auto., Aircraft & Agr. 

Implement Workers of Am., 352 U.S. 567, 595 (1957) (“It is startling to learn that a 

union spokesman or the spokesman for a corporate interest has fewer constitutional 

rights when he talks to the public than when he talks to members of his group.”) 

D. The Act, As Applied Here, Burdens Speech. 

The Leadership Fund’s ability to speak is limited by restrictions on 

accepting funds for non-contribution expenditures, 2 U.S.C. §§ 441a(a)(1)(C) and 

441a(a)(3); source prohibitions, § 4441b(a); and solicitation restrictions, § 

441b(b)(4)(A)(i). And any burden on speech is unconstitutional when the 

government has no interest in restricting the speech. AOB 27-31, 32-40, 43-45; 

see also SpeechNow, 559 F.3d at 695 (“All that matters is that the First 

Amendment cannot be encroached upon for naught” and noting that where the 

government has no interest, “something outweighs nothing every time.”) 

(quotations and marks omitted). That the Leadership Fund can, at significant 

burden, clone itself and form another organization does not eliminate the burden on 

speech. AOB 24-26; see also Austin v. Mich. Chamber of Commerce, 

494 U.S. 652, 708 (1990) (Kennedy, J., dissenting) (“That the avenue left open is 

more burdensome than the one foreclosed is ‘sufficient to characterize [a 

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regulatory interpretation] as an infringement on First Amendment activities.’”) 

(quoting FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. 238, 255 (1986) 

(“MCFL”)). And the Commission does not argue otherwise. 

In a footnote, the Commission takes issue with the Leadership Fund’s 

argument that being limited to a small restricted class severely limits the amount of 

money it can raise. AB30 n.9. Oddly, it relies on cases stating that there is no 

equalization interest for supporting government restrictions on speech. E.g. Davis 

v. FEC, 554 U.S. 724, 738 (2008). The Leadership Fund is not asking the 

government to restrict anyone’s speech to equalize speaking ability, and so the 

Commission’s argument fails. 

The Commission primarily claims that STI is not burdened here because it 

could form another PAC. AB 29-33. As an initial matter, the fact that STI can 

form another PAC is irrelevant to whether the Leadership Fund is burdened by 

speech restrictions. See § I., infra. Second, assuming STI is “able to operate a 

super PAC,” that does not mean it would not be burdensome for STI to form and 

operate one. The additional requirements in creating a second PAC “may create a 

disincentive for [plaintiffs] to engage in political speech. Detailed record-keeping 

and disclosure obligations, along with the duty to appoint a treasurer and custodian 

of the records, impose administrative costs that many small entities may be unable 

to bear.” MCFL, 479 U.S. at 254-55. 

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III. THE LEADERSHIP FUND DID NOT WAIVE ITS SECTION 441b(a) 

CHALLENGE. 

The Commission does not refute any of the Leadership Fund’s argument 

establishing that it did not waive its challenge to Section 441b(a). In a footnote, 

the Commission only states that “the complaint in this case does not clearly 

articulate the nature of any challenge” regarding section 441b(a), which prohibits 

SSFs from accepting, inter alia, contributions from corporations. AB 56 n.22. 

The Commission does not cite any law for its proffered “clear articulation” 

standard, and does not even suggest that the Commission failed to meet Rule 8’s 

notice pleading requirement. The Complaint provides proper notice of the 

challenge to Section 441b(a) as applied, and the issue was fully litigated below. 

AOB 52-54. Thus, it is not waived. Additionally, the parties agree that no 

separate argument is necessary to address the challenge to Section 441b(a) because 

the standards by which all of the other challenged sections are judged apply 

equally to Section 441b(a) here. AOB 54; AB 56 n.22. 

IV. APPELLANTS ARE ENTITLED TO INJUNCTIVE RELIEF. 

The factors weighed in determining whether injunctive relief is appropriate 

all favor the appellants here.3

 AOB 55-58. In response to the significant burdens 

 

3

 The appellants agree that if the request for injunctive relief would be moot if the 

district court’s dismissal of the action were affirmed. 

USCA Case #13-5008 Document #1439881 Filed: 06/06/2013 Page 23 of 28
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on the Leadership Fund’s speech created by the statutes and regulations at issue 

here, the Commission once again claims that there is no burden on STI. For the 

reasons stated above, the burden on STI exists but is not the primary burden here. 

The Leadership Fund’s ability to speak is restricted. Moreover, appellants 

Glengary, LLC, Todd Cefretti, and Ladd Ehlinger—whom the Commission 

ignores—continue to be harmed by being prevented from making contributions to 

the Leadership Fund. And as stated in the opening brief and not refuted by the 

Commission, “‘[t]he loss of First Amendment freedoms, for even minimal periods 

of time, unquestionably constitutes irreparable injury.’” AOB 56 (quoting Elrod v. 

Burns, 427 U.S. 347, 373 (1976)). 

Additionally, the balance of hardships and public interest weigh in favor of 

injunctive relief. The Supreme Court has made clear that in any conflict between 

First Amendment rights and regulation, courts “must give the benefit of any doubt 

to protecting rather stifling speech,” and that “the tie goes to the speaker, not the 

censor.” FEC v. Wisconsin Right to Life, Inc., 551 U.S. 449, 469, 474 (2007). 

There is no tie here, though. The Commission only asserts a hardship insofar as it 

must require disclosure and prevent coercion. But even if the injunction is entered, 

the Leadership Fund must and will comply with all disclosure requirements 

applicable to SSFs and all restrictions on directly soliciting the restricted class. If 

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the Leadership Fund did not do so, the Commission would be within its rights to 

enforce those provisions just as it always has been permitted to do. 

Moreover, an injunction is in the public interest. The Supreme Court “has 

long viewed the First Amendment as protecting a marketplace for the clash of 

differing views and conflicting ideas. That concept has been stated and restated 

almost since the Constitution was drafted.” Citizens Against Rent Control, 454 

U.S. at 295. “Speech is an essential mechanism of democracy, for it is the means 

to hold officials accountable to the people. The right of citizens to inquire, to hear, 

to speak, and to use information to reach consensus is a precondition to 

enlightened self-government and a necessary means to protect it.” Citizens United, 

558 U.S. at 339. 

Indeed, the First Amendment reflects our “profound national commitment to 

the principle that debate on public issues should be uninhibited, robust, and wideopen.” N.Y. Times v. Sullivan, 376 U.S. 254, 270 (1964). In sum, appellants ’ 

activities are at the core of the First Amendment. The Leadership Fund, as an SSF, 

must be permitted to make non-contribution expenditures out of unlimited 

corporate, union, or individual funds, even though it maintains a separate bank 

account that contributes to candidates from amount- and source-restricted funds. 

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CONCLUSION 

For the foregoing reasons, the Leadership Fund and other appellants 

respectably request that this Court reverse the district court’s order dismissing this 

case and denying a preliminary injunction, and direct that the district court enter a 

preliminary injunction enjoining the contribution limits contained in 2 U.S.C. 

§ 441a(a)(1)(C) and 441a(a)(3), the source prohibitions at § 441b(a), the 

solicitation restrictions at § 441b(b)(4)(A)(i) and all related regulations as applied 

to the appellants. 

 /s/ Tillman J. Breckenridge 

Tillman J. Breckenridge 

Tara A. Brennan 

REED SMITH LLP 

1301 K Street, NW 

Suite 1100, East Tower 

Washington, D.C. 20005 

202-414-9200 

Patricia E. Roberts 

WILLIAM & MARY LAW 

SCHOOL APPELLATE AND 

SUPREME COURT CLINIC 

P.O. Box 8795 

Williamsburg, VA 23187 

757-221-3821 

Dan Backer 

DB CAPITOL STRATEGIES, PLLC 

717 King Street, Suite 300 

Alexandria, VA 22314 

202-210-5431 

USCA Case #13-5008 Document #1439881 Filed: 06/06/2013 Page 26 of 28
CERTIFICATE OF COMPLIANCE 

1. This brief complies with the type-volume limitation of Fed. R. App. P. 

28.1(e)(2) or 32(a)(7)(B) because: 

[ X ] this brief contains [4,119] words, excluding the parts of the brief 

exempted by Fed. R. App. P. 32(a)(7)(B)(iii), or 

[ ] this brief uses a monospaced typeface and contains [state the number 

of] lines of text, excluding the parts of the brief exempted by Fed. R. App. P. 

32(a)(7)(B)(iii). 

2. This brief complies with the typeface requirements of Fed. R. App. P. 

32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because: 

[ X ] this brief has been prepared in a proportionally spaced typeface using 

[Microsoft Word 2007] in [14pt Times New Roman]; or 

[ ] this brief has been prepared in a monospaced typeface using [state 

name and version of word processing program] with [state number of 

characters per inch and name of type style]. 

Dated: June 6, 2013 /s/ Tillman J. Breckenridge 

 Counsel for Appellants 

USCA Case #13-5008 Document #1439881 Filed: 06/06/2013 Page 27 of 28
CERTIFICATE OF FILING AND SERVICE 

 I hereby certify that on this 6th day of June, 2013, I caused this Reply Brief 

of Appellants to be filed electronically with the Clerk of the Court using the 

CM/ECF System, which will send notice of such filing to the following registered 

CM/ECF users: 

Erin R. Chlopak 

David B. Kolker 

Adav Noti 

FEDERAL ELECTION COMMISSION

999 E Street, NW 

Washington, DC 20463 

(202) 695-1650 

Counsel for Appellee 

 I further certify that on this 6th day of June, 2013, I caused the required 

copies of the Reply Brief of Appellants to be hand filed with the Clerk of the 

Court. 

 /s/ Tillman J. Breckenridge 

 Counsel for Appellants 

USCA Case #13-5008 Document #1439881 Filed: 06/06/2013 Page 28 of 28