RECORD NOS. 08-5223(L), 09-5342 

THE LEX GROUPDC♦ 1750 K Street, NW ♦ Suite 475 ♦ Washington, DC 20006 

(202) 955-0001 ♦ (800) 815-3791 ♦ Fax: (202) 955-0022 ♦ www.thelexgroupdc.com 

ORAL ARGUMENT HAS BEEN SCHEDULED FOR JANUARY 27, 2010 

In The 

United States Court of Appeals 

For The District of Columbia Circuit 

SPEECHNOW.ORG; DAVID KEATING; 

FRED M. YOUNG, JR.; EDWARD H. CRANE, III; 

BRAD RUSSO; SCOTT BURKHARDT,

 Plaintiffs - Appellants, 

v. 

FEDERAL ELECTION COMMISSION, 

Defendant - Appellee.

ON CERTIFIED QUESTIONS FROM THE 

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA 

CASE NO. 08-CV-00248 (JR) 

______________

REPLY BRIEF OF APPELLANTS ______________

William H. Mellor Stephen M. Hoersting 

*Steven M. Simpson Bradley A. Smith 

Robert W. Gall CENTER FOR COMPETITIVE POLITICS

Robert P. Frommer 124 West Street South, Suite 201 

Paul M. Sherman Alexandria, Virginia 22314 

INSTITUTE FOR JUSTICE (703) 894-6800 

901 North Glebe Road, Suite 900 

Arlington, Virginia 22203 

(703) 682-9320 

Counsel for Appellants Counsel for Appellants 

December 29, 2009

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TABLE OF CONTENTS 

Page 

TABLE OF CONTENTS............................................................................................i 

TABLE OF AUTHORITIES ................................................................................... iii 

GLOSSARY..............................................................................................................vi 

STATUTES AND REGULATIONS.........................................................................1 

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

ARGUMENT .............................................................................................................2 

I. As Applied to Plaintiffs, the Contribution Limits Are 

Unconstitutional ....................................................................................2 

A. Contribution limits can be constitutional only as they 

apply to entities with a sufficient connection to 

candidates....................................................................................6 

1. CalMed does not support the FEC’s position...................9 

2. McConnell does not support the FEC’s position............12 

B. Effective speech is not corrupting.............................................14 

C. The FEC’s argument that only David Keating is speaking 

is both wrong and irrelevant .....................................................19 

II. The Political-Committee Regulations Are Unconstitutional As 

Applied to Plaintiffs ............................................................................21 

A. The political-committee regulations are unconstitutional 

as applied to Plaintiffs under any level of scrutiny...................24 

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B. SpeechNow.org’s “major purpose” does not make the 

application of political-committee status to 

SpeechNow.org constitutional ..................................................28 

CONCLUSION........................................................................................................30 

CERTIFICATE OF COMPLIANCE 

CERTIFICATE OF FILING AND SERVICE 

ADDENDUM 

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TABLE OF AUTHORITIES 

Page(s) 

CASES 

Ala. Power Co. v. EPA, 

40 F.3d 450 (D.C. Cir. 1994).........................................................................23

Akins v. FEC, 

 101 F.3d 731 (D.C. Cir. 1997).......................................................................29 

Austin v. Mich. Chamber of Commerce, 

 494 U.S. 652 (1990).........................................................................................7

*Buckley v. Valeo, 

424 U.S. 1 (1976).............. 3, 4, 5, 6, 7, 8, 9, 12, 17, 20, 22, 23, 24, 25, 26, 27

Cal. Med. Ass’n v. FEC, 

453 U.S. 182 (1981)...................................................................6, 9, 10, 11, 12

Ctr. for Biological Diversity v. U.S. Dep’t of Interior, 

563 F.3d 466 (D.C. Cir. 2009).......................................................................28

*Citizens Against Rent Control v. City of Berkeley, 

 454 U.S. 290 (1981).....................................................................................4, 9 

Citizens United v. FEC, 

129 S. Ct. 2893 (2009).....................................................................................7

*Davis v. FEC, 

128 S. Ct. 2759 (2008).........................................................................6, 26, 27

Democratic Party v. Wisconsin ex rel. La Follette, 

450 U.S. 107 (1981).........................................................................................9

*Authorities upon which we chiefly rely are marked with asterisks.

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*EMILY’s List v. FEC, 

581 U.S. 1 (D.C. Cir. 2009).......................................................3, 5, 11, 18, 19 

FEC v. Colo. Republican Fed. Campaign Comm., 

533 U.S. 431 (2001).........................................................................................7

*FEC v. Mass. Citizens for Life, Inc., 

479 U.S. 238 (1986).............................................. 9, 22, 23, 24, 25, 27, 28, 29

*FEC v. Nat’l Conservative Political Action Comm., 

 470 U.S. 480 (1985)...................................................................................6, 20 

*FEC v. Wis. Right to Life, Inc., 

 551 U.S. 449 (2007)...............................................................4, 8, 9, 14, 24, 27 

First Nat’l Bank of Boston v. Bellotti, 

 435 U.S. 765 (1978).......................................................................................17

Marks v. United States, 

 430 U.S. 188 (1977).......................................................................................10 

 

McConnell v. FEC, 

 540 U.S. 93 (2003)................................................ 5, 7, 8, 9, 11, 12, 13, 24, 25 

Meyer v. Grant, 

 486 U.S. 414 (1988).......................................................................................17

*N.C. Right to Life, Inc. v. Leake, 

 525 F.3d 274 (4th Cir. 2008) ............................................................... 7, 19-20

NAACP v. Alabama ex rel. Patterson, 

 357 U.S. 499 (1958).........................................................................................9

Nixon v. Shrink Mo. Gov’t PAC, 

 528 U.S. 377 (2000).................................................................................6, 8, 9

Pollard v. Roberts,

283 F. Supp. 248 (E.D. Ark. 1968) ...............................................................27 

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Randall v. Sorrell, 

548 U.S. 230 (2006).........................................................................................8

Ripon Soc’y v. Nat’l Republican Party, 

525 F.2d 567 (D.C. Cir. 1975).......................................................................17

S. Nuclear Operating Co. v. NLRB, 

524 F.3d 1350 (D.C. Cir. 2008).....................................................................28

SpeechNow.org v. FEC, 

567 F. Supp. 2d 70 (D.D.C. 2008)...................................................................7

Timmons v. Twin Cities Area New Party, 

520 U.S. 351 (1997).......................................................................................25

United States v. Oakar, 

 111 F.3d 146 (D.C. Cir. 1997).......................................................................28

United States v. Shannon, 

110 F.3d 382 (7th Cir. 1997) .........................................................................15

Ward v. Rock Against Racism, 

491 U.S. 781 (1989).......................................................................................25 

CONSTITUTIONAL PROVISION 

U.S. CONST. amend. I.............................................................. 1, 2, 3, 7, 8, 17, 20, 29 

STATUTES 

2 U.S.C. § 434(c) ........................................................................ 1, 21, 22, 23, 25, 26 

2 U.S.C. § 441e(a)(2)...........................................................................................1, 23 

REGULATION 

11 C.F.R. § 114.10 ...............................................................................................1, 23 

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GLOSSARY 

BCRA Bipartisan Campaign Reform Act of 2002, Pub. L. 107-155, 116 Stat. 

81 (codified in scattered sections of 2 U.S.C.) 

FEC Federal Election Commission 

PAC Political Action Committee, a political committee as defined by 2 

U.S.C. § 431(4)(A)

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STATUTES AND REGULATIONS 

 Except for the following, all applicable statutes, etc., are contained in the 

statutory addendum submitted in conjunction with the Plaintiffs-Appellants’ Brief 

on November 16, 2009. 

2 U.S.C. § 441e(a)(2) 

11 C.F.R. § 114.10 

These statutes and regulations are contained in an addendum to this brief. 

SUMMARY OF ARGUMENT 

Plaintiffs’ position in this case follows from fundamental First Amendment 

principles, most notably that independent expenditures are core political speech 

that may not be limited and that individuals may associate with one another to do 

collectively what they have a right to do individually. Thus, Plaintiffs are 

constitutionally entitled to raise and spend unlimited funds on independent 

expenditures collectively because, as the FEC admits, each of them may do so 

individually. They will disclose under 2 U.S.C. § 434(c), the disclosure provision 

Congress created for those who make independent expenditures, and the FEC can 

therefore demonstrate no constitutionally adequate reason to require them to 

become a political committee. 

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The FEC’s entire case applies statutory terms out of context and in complete 

disregard of constitutional principle. The FEC thus ignores that the Supreme Court 

has only upheld the application of campaign-finance limits to individuals and 

groups with a sufficient connection to candidates. SpeechNow.org, however, is 

independent of candidates and therefore nothing like the groups that work closely 

with and make contributions to candidates, to which contribution limits have been 

constitutionally applied. Likewise, in arguing that SpeechNow.org must become a 

political committee, the FEC ignores the fact that Plaintiffs are not challenging 

disclosure as such, but only the application of political-committee requirements the 

Supreme Court has found significantly burdensome. In short, the FEC simply 

cannot show a constitutionally adequate reason to justify imposing either 

contribution limits or political-committee status on Plaintiffs. 

ARGUMENT 

I. As Applied to Plaintiffs, the Contribution Limits Are Unconstitutional. 

Plaintiffs’ position in this case can be understood, in essence, as the right of 

association applied to the principle that independent expenditures are core political 

speech and may not be limited. In other words, if one person may spend unlimited 

amounts on independent expenditures, a group of persons must be permitted to do 

the same thing. As Plaintiffs stated in their opening brief, this conclusion follows 

from several fundamental First Amendment principles that this Court summarized 

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in EMILY’s List. See Brief of Appellants at 22, Keating v. FEC, No. 09-5342 

(D.C. Cir. Nov. 16, 2009) (hereinafter “Appellants’ Merits Brief”). 

These are not new-fangled constitutional principles. The Supreme Court 

announced or relied on all of them in Buckley v. Valeo and has restated them many 

times since. See Appellants’ Merits Brief at 30-31. Thus, as Plaintiffs stated in 

their opening brief, the FEC can prevail in this case only by destroying core First 

Amendment principles, most notably the right of association and the principle of 

independence. See id. at 28-32. 

The FEC has now made clear that this is precisely its approach to this case. 

In its entire brief, the FEC nowhere even acknowledges that a right of association 

exists, much less explains how contribution limits can be applied to 

SpeechNow.org without violating that right. Nor does the FEC explain why it is 

entitled to limit Plaintiffs’ expenditures for speech simply because they are 

spending that money collectively through SpeechNow.org, when the FEC is not 

entitled to limit Plaintiffs’ spending made entirely on their own. 

The FEC’s only response is that the money Plaintiffs want to spend is called 

a “contribution” when it is spent through SpeechNow.org, but an “expenditure” 

when spent individually. See Brief for the Federal Election Commission at 9-12, 

Keating v. FEC, No. 09-5342 (D.C. Cir. Dec. 15, 2009) (hereinafter “FEC Merits 

Brief”). But, as Plaintiffs have shown, First Amendment rights do not turn on 

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labels. See Appellants’ Merits Brief at 34; Brief of Appellants at 29, 

SpeechNow.org v. FEC, No. 08-5223 (D.C. Cir. Aug. 24, 2009) (hereinafter 

“Appellants’ P.I. Brief”). The Supreme Court has repeatedly analyzed campaignfinance limits, not on the basis of the labels “contribution” and “expenditure,” but 

according to whether the money has a sufficient connection to the possible 

corruption of candidates. See Appellants’ P.I. Brief at 33. Having admitted that 

the individual Plaintiffs may spend as much as they want alone, the FEC cannot 

claim that the exact same spending creates concerns about corruption when it is 

made through SpeechNow.org. See FEC v. Wis. Right to Life, Inc. (WRTL II), 551 

U.S. 449, 468 (2007) (declining to allow “the bizarre result that identical ads aired 

at the same time could be protected speech for one speaker, while leading to 

criminal penalties for another”). In short, the FEC hopes to do exactly what the 

Supreme Court said governments may not do in Citizens Against Rent Control v. 

City of Berkeley—impose a limit on citizens acting together that it could not 

impose on them acting alone. 454 U.S. 290, 295-96 (1981). 

The only way around this is to attack the very idea of independence, which 

the FEC also does. The FEC spends over ten pages in its brief purporting to show 

that independent expenditures and even expenditures for issue advocacy lead to 

corruption. See FEC Merits Brief at 12-23. The FEC obviously wants this Court 

to reject the Supreme Court’s contrary conclusion in Buckley. As Plaintiffs 

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demonstrate below, there is much wrong with the FEC’s alleged “evidence,” not 

least that the district court rejected all of it and it does not show what the FEC 

claims. See infra part I.B. But even were this evidence reliable and even were the 

Supreme Court poised to overturn Buckley, the FEC would still be barking up the 

wrong tree. If the FEC wishes to lobby Congress to change the definition of 

“independent expenditure” from one that turns on coordination to one that turns on 

“gratitude” by candidates, it may do so.1

 But the FEC is not entitled to decide that 

the existing laws governing independence—the laws on which David Keating 

relied in creating SpeechNow.org—do not apply in this case. See Appellants’ 

Merits Brief at 28, 32; Appellants’ P.I. Brief at 38-39. 

Plaintiffs have addressed the FEC’s attack on the principle of independence 

and the right of association in detail in their previous briefs in this appeal. See, 

e.g., Appellants’ Merits Brief at 28-32; Appellants’ P.I. Brief at 35-41; Reply Brief 

of Appellants at 3-6, SpeechNow.org v. FEC, No. 08-5223 (D.C. Cir. Oct. 15, 

2009) (hereinafter “Appellants’ P.I. Reply Brief”). The FEC has ignored these 

points entirely, in favor of three arguments that are either wrong or irrelevant: that 

 

1

 The fact that the laws concerning independent expenditures have not been 

changed makes this a far stronger case for the right to raise unlimited amounts of 

money to fund independent expenditures than EMILY’s List. EMILY’s List at least 

involved new rules passed by the FEC on the heels of McConnell that governed the 

allocation of funds by committees like EMILY’s List. See EMILY’s List v. FEC, 

581 F.3d 1, 4-5 (D.C. Cir. 2009). Those allocation rules do not apply to 

SpeechNow.org because it is not a multicandidate committee that makes both 

contributions to candidates and independent expenditures. 

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SpeechNow.org is no different from groups that contribute to or work closely with 

candidates; that the government’s interest in regulating speech increases as that 

speech becomes more effective; and that only David Keating is speaking in this 

case. Plaintiffs address each of these arguments below. 

A. Contribution limits can be constitutional only as they apply to 

entities with a sufficient connection to candidates. 

“[P]reventing corruption or the appearance of corruption are the only 

legitimate and compelling government interests thus far identified for restricting 

campaign finances.” Davis v. FEC, 128 S. Ct. 2759, 2773 (2008) (citation 

omitted). As the Supreme Court has stated, “Corruption is a subversion of the 

political process” the hallmark of which is “the financial quid pro quo: dollars for 

political favors.” FEC v. Nat’l Conservative Political Action Comm. (NCPAC), 

470 U.S. 480, 497 (1985). 

The Supreme Court has found the prospect of corruption compelling enough 

to justify limits on campaign financing in only three types of cases: (1) those 

involving direct contributions to candidates (or coordinated expenditures on their 

behalf), see, e.g., Buckley v. Valeo, 424 U.S. 1, 23-26 (1976); Nixon v. Shrink Mo. 

Gov’t PAC, 528 U.S. 377, 382-83 (2000); (2) those involving direct contributions 

to groups that themselves make direct contributions to candidates, see, e.g., Cal. 

Med. Ass’n v. FEC (CalMed), 453 U.S. 182, 184-86 (1981); and (3) those 

involving contributions to political-party committees that work directly with and 

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are often composed of candidates, see, e.g., McConnell v. FEC, 540 U.S. 93, 145 

(2003); FEC v. Colo. Republican Fed. Campaign Comm. (Colorado II), 533 U.S. 

431, 437 (2001). Only in those circumstances has the Court concluded that the 

money used for political activities was sufficiently connected to candidates, and 

thus the potential for corruption sufficiently compelling, to justify limits.2

 See N.C. 

Right to Life, Inc. v. Leake, 525 F.3d 274, 291-93 (4th Cir. 2008). The FEC has 

not cited one case that varies from this framework. Because SpeechNow.org fits 

into none of these categories, the FEC’s case cannot stand. 

The FEC attempts to evade this by arguing, essentially, that Plaintiffs must 

justify their right to speak and associate free of contribution limits. Relying on 

Buckley, the FEC claims that the Supreme Court has “generally” upheld 

contribution limits because they impose a lesser burden on speech than expenditure 

limits. See FEC Merits Brief at 9-10, 25. It then claims that only David Keating’s 

speech is at issue and that the limits therefore do not impose any significant burden 

on any of Plaintiffs’ First Amendment rights. See id. at 9-12. According to the 

FEC, contributors to SpeechNow.org are simply engaging in “speech by proxy,” 

which the government may limit as it sees fit. See id. 

 

2

 The only exception to this is so-called “corporate-form” corruption, which has no 

application to this case because SpeechNow.org is not a corporation. See 

SpeechNow.org v. FEC, 567 F. Supp. 2d 70, 81 n.10 (D.D.C. 2008); see also

Citizens United v. FEC, 129 S. Ct. 2893 (2009) (ordering reargument on whether 

Austin v. Mich. Chamber of Commerce, 494 U.S. 652 (1990), should be overruled). 

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But this entire argument ignores the fact that the government bears the 

burden of showing that limits prevent corruption. See WRTL II, 551 U.S. at 464-

65; Shrink, 528 U.S. at 392 (“We have never accepted mere conjecture as adequate 

to carry a First Amendment burden . . . .”). Indeed, in Buckley, the Supreme Court 

made clear that serving the “weighty interests” of eliminating corruption was 

absolutely essential to the constitutionality of the contribution limits. See 424 U.S. 

at 29. Those limits, according to the Court, focus “precisely on the problem of 

large campaign contributions[,] the narrow aspect of political association where the 

actuality and potential for corruption have been identified[,] while leaving persons 

free to engage in independent political expression.” Id. at 28. Outside this 

“narrow aspect of political association”—that is, large contributions to candidates, 

and, after McConnell, soft-money contributions to political-party committees—the 

Court’s corruption rationale no longer applies. See, e.g., Randall v. Sorrell, 548 

U.S. 230, 261-62 (2006) (striking down low limits on direct contributions to 

candidates); Buckley, 424 U.S. at 51 (striking down limits on independent 

expenditures). SpeechNow.org is far outside this category—indeed, it will engage 

in precisely the sort of “independent political expression” the Court in Buckley

refused to limit. As a result, whether money donated to it is considered a 

“contribution” and whether only David Keating is speaking, SpeechNow.org is still 

outside the scope of allowable restrictions on amounts it receives from donors. 

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In short, neither Buckley nor any other case allows the government to limit 

contributions to any group simply because the government does not believe the 

limits are burdensome or the donors’ interests are important. See, e.g., WRTL II, 

551 U.S. at 476-81 (refusing to impose PAC burdens, including contribution limits, 

because no showing of corruption). To limit the right to associate and pool 

resources for speech, the government must first demonstrate that the restriction 

serves a sufficiently compelling interest. See Citizens Against Rent Control, 454 

U.S. at 296-99; Democratic Party v. Wisconsin ex rel. La Follette, 450 U.S. 107, 

124-26 (1981); Buckley, 424 U.S. at 24-26; NAACP v. Alabama ex rel. Patterson, 

357 U.S. 449, 463 (1958).3

 The FEC cannot do so here because Plaintiffs raise no 

concerns about corruption. In arguing to the contrary, the FEC relies primarily on 

CalMed and McConnell. But that reliance is misplaced. 

1. CalMed does not support the FEC’s position. 

At most, CalMed stands for the proposition that contribution limits are 

constitutional as they apply to multicandidate political committees that make 

contributions to candidates. That is the point on which the plurality and Justice 

Blackmun’s concurrence agreed. See 453 U.S. at 201-04 (Blackmun, J., 

concurring). While it is true that the committee in CalMed also wanted to make 

 

3

 Plaintiffs believe that strict scrutiny applies to their claims. See Appellants’ P.I. 

Brief at 25-32; see also FEC v. Mass. Citizens for Life, Inc. (MCFL), 479 U.S. 238, 

251-52 (1986) (plurality opinion). But the FEC must show corruption regardless 

of what level of scrutiny applies. See Shrink, 528 U.S. at 392. 

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independent expenditures, that fact was irrelevant to the decision, because, as both 

the plurality and Justice Blackmun agreed, the committee might be used to 

circumvent limits on direct contributions to candidates if limits did not apply to the 

committee itself. See id. at 197-99 (plurality opinion); id. at 203 (Blackmun, J., 

concurring). 

CalMed does not support the application of contribution limits to 

SpeechNow.org, because SpeechNow.org does not do the one thing that was 

central to the agreement between the plurality and Justice Blackmun: it does not 

make contributions to candidates. Thus, contrary to the FEC’s claim, Marks v. 

United States, 430 U.S. 188 (1977), is not difficult to apply to CalMed on this 

point. See FEC Merits Brief at 26-27. Justice Blackmun made absolutely clear 

that he joined the plurality only to the extent that its decision applied to a 

committee that made direct contributions to candidates. See CalMed, 453 U.S. at 

202-03 (Blackmun, J., concurring). Plaintiffs relied on CalMed in their opening 

brief only to make the point that the case does not support the FEC’s position, 

which it does not. Indeed, the case fits squarely within the general rule, discussed 

above, that contribution limits are constitutional only when applied to groups with 

a sufficient connection to candidates. 

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The FEC relies on Judge Brown’s concurrence in EMILY’s List for the claim 

that CalMed held that contribution limits can be applied to funds devoted to 

independent expenditures. See FEC Merits Brief at 28. But the FEC ignores the 

context in which that statement was made. EMILY’s List is a multicandidate 

committee that makes contributions to candidates; SpeechNow.org is not. Thus, 

CalMed cannot even arguably support the application of contribution limits to 

SpeechNow.org. Plaintiffs agree with the majority in EMILY’s List, but their 

disagreement with Judge Brown on this point is immaterial for the simple reason 

that SpeechNow.org does not make contributions to candidates, and is thus 

completely unlike EMILY’s List.

The FEC also relies on footnote 48 of McConnell, effectively arguing that it 

rewrote CalMed and treated Justice Blackmun’s concurrence as just another vote 

for the plurality. See FEC Merits Brief at 29-32. But the point of footnote 48 was 

that CalMed supports the application of contribution limits to groups, like the 

political-party committees at issue in McConnell, with a sufficient connection to 

candidates. As Plaintiffs stated in their opening brief, the footnote cannot be 

understood to have decided an issue not before the Supreme Court, thus 

foreclosing as-applied challenges like this one, especially when the Supreme Court 

held soon after McConnell that the Court did not foreclose as-applied challenges 

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even to the very law at issue in McConnell. See Appellants’ Merits Brief at 40. 

The FEC ignores this point entirely. 

2. McConnell does not support the FEC’s position. 

In McConnell, the Supreme Court upheld limits on soft-money donations to 

political-party committees due to the unique nature of those committees. As the 

Court found, “‘[t]here is no meaningful distinction between the national party 

committees and the public officials who control them.’” 540 U.S. at 155 (internal 

citations omitted). The Court upheld these limits despite the fact that they would 

restrict funds used for independent campaign activity, not because independent 

spending by anyone causes concerns about corruption, but because political-party 

committees cause concerns about corruption. As the Court stated, “Given this 

close connection and alignment of interests, large soft-money contributions to 

national parties are likely to create actual or apparent indebtedness on the part of 

federal officeholders, regardless of how those funds are ultimately used.” Id. 

(emphasis added). 

The FEC ignores this factual context and attempts to do with McConnell

what it tried to do with Buckley and CalMed—apply the holding as though the 

Supreme Court was issuing a series of directives as some sort of super-legislature. 

But the Court in McConnell recognized it was doing no such thing. See 540 U.S. 

at 192 (“We have long rigidly adhered to the tenet never to formulate a rule of 

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constitutional law broader than is required by the precise facts to which it is to be 

applied, for the nature of judicial review constrains us to consider the case that is 

actually before us.” (internal quotation marks and citation omitted)). To contend, 

as the FEC does, that SpeechNow.org is indistinguishable from the political-party 

committees at issue in McConnell requires one to ignore that both Congress in 

passing BCRA, and the Court in upholding it, relied on an extensive record that 

pertained to the unique role of political-party committees and their connections to 

candidates. See id. at 145-54. 

The FEC also contends that the Court in McConnell recognized that 

nonprofits can create concerns about corruption. See FEC Merits Brief at 37-40. 

But the Court’s comments pertained to BCRA’s ban on candidates soliciting 

donations for nonprofits. See McConnell, 540 U.S. at 174-76. Those comments do 

not apply to SpeechNow.org, a group that is entirely independent of candidates and 

thus raises a question the Supreme Court has not directly addressed. The Court did 

not find that nonprofits as such were corrupting; it found that candidate solicitation 

for nonprofits raised the specter of corruption, again making clear that it is the 

connection to candidates that causes concerns about corruption. Id. 

In any event, with the solicitation ban in place, candidates cannot solicit 

funds for SpeechNow.org or any other nonprofit, and the problem Congress sought 

to address is solved. Nonprofits are now even more independent of candidates 

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than they were before. The fact that the Court upheld the solicitation ban cannot 

be the basis for upholding further restrictions on nonprofits for whom candidates 

are now not soliciting funds. The FEC’s argument is precisely the sort of 

“prophylaxis-on-prophylaxis” approach that the Supreme Court rejected in WRTL 

II. See 551 U.S. at 479. 

B. Effective speech is not corrupting. 

The FEC devotes over ten pages of its brief to anecdotes and opinions based 

on multiple levels of hearsay, vague claims by alleged “experts,” equivocal 

research about the alleged impact of independent expenditures, and examples of 

politicians and others who have violated the law. The purpose of this alleged 

“evidence” is to show that the Supreme Court’s consistent conclusion that 

independent expenditures do not cause concerns about corruption is wrong. See

FEC Merits Brief at 13-25. Plaintiffs have rebutted each of these claims, showing 

them to be overblown half-truths at best;4

 completely unreliable and often outright 

 

4 See Plaintiffs’ Brief in Response to the FEC’s Proposed Findings of Fact at 12-

15, SpeechNow.org v. FEC, 2009 U.S. Dist. LEXIS 89011 (D.D.C. Sept. 28, 2009) 

(No. 08-248, Dkt. # 54) (hereinafter “Plaintiffs’ Response Brief on Facts”); see 

also id. at 33-40 (citing problems with FEC’s expert’s opinions); id. at 74-75 

(noting FEC’s failure to distinguish between political parties and independent 

groups); id. at 36-37, 58-64 (discussing FEC’s misleading claims about 527s); id. 

at 38-39, 81-86 (revealing FEC’s misstatements about academic and other 

research); id. at 73 (revealing FEC’s misleading statements about those who make 

campaign contributions). 

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wrong at worst.5 See Appellants’ P.I. Reply Brief at 24-28. Plaintiffs also raised 

hundreds of evidentiary objections and violations of procedural rules with respect 

to this evidence. See Plaintiffs’ First Motion in Limine, SpeechNow.org v. FEC, 

2009 U.S. Dist. LEXIS 89011 (D.D.C. Sept. 28, 2009) (No. 08-248, Dkt. # 51). 

The district court rejected all of this evidence, concluding that the only relevant 

facts in this as-applied challenge were those pertaining to SpeechNow.org. J.A. 

1261. 

Now the FEC asks this Court either to accept all of its rejected and disputed 

facts as “legislative facts” or to remand the case and require the district court to 

spend another year trying to sort through hundreds of evidentiary and factual 

disputes concerning the actions of every group and individual imaginable other 

than Plaintiffs. See FEC Merits Brief at 58-61. Neither approach makes any sense. 

The FEC’s alleged facts are not proper “legislative facts” of which this Court can 

effectively take judicial notice. Cf. United States v. Shannon, 110 F.3d 382, 387-

88 (7th Cir. 1997) (taking notice of basic historical and biological facts motivating 

statutory-rape laws). They are disputed questions involving the statements, 

opinions, and motives of third parties and the views of various scholars on the 

current state of research concerning spending for political speech. See, e.g., 

 

5 See, e.g., Plaintiffs’ Response Brief on Facts at 13 (noting blatant 

misrepresentation of statements by Stephen Moore, former president of the Club 

for Growth); see also infra note 8. 

Case: 08-5223 Document: 1222740 Filed: 12/29/2009 Page: 22
16

Appellants’ P.I. Reply Brief at 24-28; Plaintiffs’ Response Brief on Facts at 9-11. 

The FEC offers these “facts” not to support the statutes and rules governing 

independence versus coordination, but to contradict them. See Appellants’ Merits 

Brief at 28-32. But there can be no legislative facts that pertain to a new definition 

of independence until Congress actually legislates on that issue. See Plaintiffs’ 

Reply Memorandum in Support of Their First and Second Motions in Limine at 3-

4, SpeechNow.org v. FEC, 2009 U.S. Dist. LEXIS 89011 (D.D.C. Sept. 28, 2009) 

(No. 08-248, Dkt. #67). 

Ultimately, the FEC wants to prove something that is wrong as a matter of 

constitutional law—that the more effective the speech, the more it must be 

restricted. The FEC’s argument boils down to the claim that if Plaintiffs are left 

free of contribution limits, they will be able to spend more money on speech that 

more effectively communicates their message. See FEC Merits Brief at 42-43; see 

also Appellants’ P.I. Reply Brief at 28. That is, of course, true. As Plaintiffs have 

shown, contribution limits severely burden their ability to speak effectively. See

Appellants’ Merits Brief at 12, 13 n.2; 

Case: 08-5223 Document: 1222740 Filed: 12/29/2009 Page: 23
17

Appellants’ P.I. Brief at 23-24.6 But speaking effectively is Plaintiffs’ right under 

the First Amendment. See, e.g., First Nat’l Bank of Boston v. Bellotti, 435 U.S. 

765, 774 (1978); Buckley, 424 U.S. at 19-20. Plaintiffs have the right to associate 

to amplify their voices as well. See, e.g., Ripon Soc’y v. Nat’l Republican Party, 

525 F.2d 567, 585 (D.C. Cir. 1975) (en banc) (holding that the First Amendment 

protects “a right not only to form political associations but to organize and direct 

them in the way that will make them most effective”). And they are entitled to 

choose the most effective means of speaking out as well as the message. See 

Meyer v. Grant, 486 U.S. 414, 424 (1988). 

None of the FEC’s alleged evidence shows that independent expenditures 

are inherently corrupting. At most, the FEC’s evidence shows that sometimes 

independent expenditures are useful to candidates and sometimes they are not. See

Appellants’ P.I. Reply Brief at 26-27. It also shows that some politicians have 

 

6

 Even while it claims that contribution limits will prevent SpeechNow.org from 

spending the amounts it wishes, the FEC claims that the limits are not burdensome. 

See FEC Merits Brief at 44-46. But the FEC obviously recognizes the significant 

impact of contribution limits on speech; it relies on that impact in complaining 

about the amounts 527s were able to raise and spend for issue advocacy outside of 

contribution limits during the 2004 election cycle. See FEC Merits Brief at 18; see 

also Appellants’ P.I. Reply Brief at 28; Declaration of Jeffrey Milyo, Ph.D., in 

Support of Plaintiffs’ Proposed Findings of Fact at 21-31, SpeechNow.org v. FEC, 

2009 U.S. Dist. LEXIS 89011 (D.D.C. Sept. 28, 2009) (No. 08-248, Dkt. #44-54). 

Moreover, the FEC’s reference to aggregate amounts that nonconnected 

committees raised after BCRA, see FEC Merits Brief at 44, is meaningless, 

because those committees can make small direct contributions to candidates if they 

wish. SpeechNow.org, by contrast, must raise large sums to fund even one 

advertisement. See J.A. 786-87. 

Case: 08-5223 Document: 1222740 Filed: 12/29/2009 Page: 24
18

violated the law. See id. at 27-28. And it shows that the FEC can find people who 

believe that independent spending in elections, whether for express advocacy or 

issue advocacy, is problematic. See id. at 28; see also FEC Merits Brief at 17-20. 

Plaintiffs offered similar opinions on the other side and could mine news 

stories and academic articles, as the FEC did, to offer many more such views. See,

e.g., Declaration of Jeffrey Milyo, Ph.D., in Support of Plaintiffs’ Response to 

Defendant’s Proposed Findings of Fact, SpeechNow.org v. FEC, 2009 U.S. Dist. 

LEXIS 89011 (D.D.C. Sept. 28, 2009) (No. 08-248, Dkt. #53-3). But that would 

be pointless, because the FEC’s point is simply that many individuals and groups 

want to spend large amounts of money on speech that is designed to influence the 

outcome of elections. See Appellants’ P.I. Brief at 22; FEC Merits Brief at 13-15. 

As the Court in EMILY’s List recognized, that is their right, and the FEC may not 

attempt to restrict funding in order to limit spending for effective speech. See 581 

F.3d at 18-19. 

The same applies to the FEC’s argument that groups with large contributors 

are corrupting while groups with small contributors are not. See FEC Merits Brief 

at 32. The Supreme Court has never held that this is true, and the notion makes no 

sense. If having large contributors makes independent expenditures corrupting, 

then large independent expenditures by individuals would have to be corrupting as 

well. After all, an individual’s own money will always constitute 100% of the 

Case: 08-5223 Document: 1222740 Filed: 12/29/2009 Page: 25
19

independent expenditures he is making, and that individual will be able to dictate 

precisely how those independent expenditures are made.7

C. The FEC’s argument that only David Keating is speaking is both 

wrong and irrelevant. 

The same essential point applies to the FEC’s argument that only David 

Keating’s speech is at issue in this case. See FEC Merits Brief at 11-12. This 

claim is wrong for the reasons Plaintiffs have already stated in other briefs. See

Appellants’ Merits Brief at 24-27. But even if it were true, it would prove nothing. 

In effect, David Keating would be speaking using other people’s money freely 

given to finance independent expenditures that are not corrupting. So where is the 

problem? George Soros may spend $1 million of his own money on independent 

expenditures, but according to the FEC, if David Keating spends any amount of his 

own money and another $100,000 or so provided by others who agree with him, 

suddenly there is corruption. 

In short, if there is no reason to limit David Keating’s independent speech in 

the first place, then there can be no reason to prevent him from spending other 

people’s money on that same speech. See EMILY’s List, 581 F.3d at 10-11; Leake, 

 

7

 SpeechNow.org cannot accept earmarked donations, so large donors cannot 

control what SpeechNow.org does. See J.A. 1270, 1279. Even so, in a classic 

heads-I-win-tails-you-lose move, the FEC both complains that large donors may 

control SpeechNow.org’s independent expenditures at the same time that it 

complains that not allowing earmarked donations means that the speech at issue is 

only David Keating’s. Compare FEC Merits Brief at 32 with id. at 11-12. 

Case: 08-5223 Document: 1222740 Filed: 12/29/2009 Page: 26
20

525 F.3d at 295; see also FEC Merits Brief at 56 (admitting that Fred Young can 

spend his entire contribution to SpeechNow.org on his own independent 

expenditures). As the Supreme Court made clear in NCPAC, the fact that a group 

may spend more than an individual is not corruption. See 470 U.S. at 497-98. 

In any event, the Supreme Court has never applied the so-called “proxy 

speech” argument outside of the context of direct contributions to candidates, 

which involve “weighty” concerns about corruption and are far less likely than 

contributions to SpeechNow.org to support a particular viewpoint. See Buckley, 

424 U.S. at 29. Indeed, in NCPAC the Court rejected precisely the argument the 

FEC is making here, stating that the “contributors obviously like the message they 

are hearing from these organizations and want to add their voices to that message; 

otherwise, they would not part with their money.” 470 U.S. at 495. 

If the FEC’s argument were correct, there would be no such thing as 

associational speech, for in every group, some individual must actually put pen to 

paper or use his voice as the “proxy” for the group’s members. The fact that not 

every contributor gets to decide on the group’s precise message does not diminish 

the importance of his First Amendment rights, because, as the Supreme Court has 

recognized, individuals “will surely cease contributing when the message those 

organizations deliver ceases to please them.” See id. at 499. 

Case: 08-5223 Document: 1222740 Filed: 12/29/2009 Page: 27
21

II. The Political-Committee Regulations Are Unconstitutional As Applied 

to Plaintiffs. 

The FEC insists that it must be allowed to impose political-committee 

burdens on SpeechNow.org. However, its insistence is largely based on an 

argument—that disclosure is important—that is not in dispute. As Plaintiffs have 

repeatedly made clear, the disclosure and disclaimer provisions for those who 

make independent expenditures will apply to them. Thus, the parties’ dispute is 

not whether SpeechNow.org will disclose, but how it will disclose and whether the 

information disclosed will satisfy the government’s interests. 

SpeechNow.org will disclose every contribution above $200 that goes to 

fund its independent expenditures under 2 U.S.C. § 434(c), the mechanism 

Congress provided for individuals and groups that are not political committees. 

Appellants’ Merits Brief at 44-46. Because SpeechNow.org does not accept 

earmarked contributions, this means that, contrary to the FEC’s claim, it will end 

up disclosing every contribution above $200. See J.A. 1279; J.A. 790; Deposition 

Transcript of David Keating, taken Sept. 25, 2008, at 184:10-13 (“[M]y plan is that 

if we are allowed to do independent expenditures, we’re going to disclose all our 

donors over whatever the threshold is, $200 a year or whatever it is.”) (No. 08-248, 

Case: 08-5223 Document: 1222740 Filed: 12/29/2009 Page: 28
22

Dkt. #45-1, Ex. 11).8 This will provide the public with all the information 

necessary to discover where the “money comes from and how it is spent . . . .” 

Buckley, 424 U.S. at 66; see also FEC v. Mass. Citizens for Life, Inc. (MCFL), 479 

U.S. 238, 262 (1986) (holding that § 434(c) provides “precisely the information 

necessary to monitor MCFL’s independent spending and its receipt of 

contributions,” so the “state interest in disclosure therefore can be met in a manner 

less restrictive than imposing the full panoply of regulations” that accompany 

political-committee status). 

In contending that SpeechNow.org must be subjected to all the burdensome 

requirements that apply to political committees, the FEC takes the same approach 

it does with respect to contribution limits. It ignores its burden in constitutional 

challenges and resorts to a rote application of the statutes. SpeechNow.org meets 

the definition of political committee and has a “major purpose” of influencing 

elections; that, according the FEC, should be the end of the discussion. See FEC 

Merits Brief at 33-35. 

While the FEC makes a half-hearted attempt to show that politicalcommittee status will yield important information that would not otherwise be 

disclosed under § 434(c), see FEC Merits Brief at 53-54, its claims are imaginary. 

 

8

 The FEC’s claim that David Keating “has given conflicting testimony” on this 

point, FEC Merits Brief at 53 n.14, is wrong. See Plaintiffs’ Response Brief on 

Facts at 14 n.4. 

Case: 08-5223 Document: 1222740 Filed: 12/29/2009 Page: 29
23

First, as noted above, the FEC’s supposed concern about the disclosure of milliondollar contributions for administrative expenses is a non-issue, because 

SpeechNow.org cannot accept earmarked contributions, and it makes only 

independent expenditures. Thus, no contributor can hide behind a request to fund 

only administrative expenses. Second, the FEC’s claim that political-committee 

requirements are necessary to ensure that SpeechNow.org will not accept 

contributions from foreign nationals, corporations, and unions is nonsensical. It 

would be illegal for SpeechNow.org to accept such contributions whether it were a 

political committee or not, and SpeechNow.org’s bylaws forbid it from accepting 

such donations in any event. 2 U.S.C. § 441e(a)(2); 11 C.F.R. § 114.10; J.A. 831. 

But even if David Keating decided to accept such contributions in violation of the 

law, he would still have to disclose them under § 434(c). 

Here, again, the FEC is fighting both the statute and the Constitution. 

Congress created § 434(c) as the appropriate disclosure mechanism for groups that 

are not political committees, and that mechanism has received the Supreme Court’s 

imprimatur. See Buckley, 424 U.S. at 79-82; MCFL, 479 U.S. at 262. The FEC 

must accept § 434(c) as it exists, not as it wants it to be. See Ala. Power Co. v. 

EPA, 40 F.3d 450, 456 (D.C. Cir. 1994) (holding that, where Congress has 

“indicated by plain language a preference to pursue its stated goals by what [an 

agency] asserts are less than optimal means . . . neither this court nor the agency is 

Case: 08-5223 Document: 1222740 Filed: 12/29/2009 Page: 30
24

free to ignore the plain meaning of the statute and to substitute its policy judgment 

for that of Congress”). 

At bottom, the FEC can offer nothing more than rhetoric to justify imposing 

the significant burdens of political-committee status on Plaintiffs. Thus, as 

demonstrated below, the political-committee regulations are unconstitutional as 

applied to Plaintiffs regardless of what level of scrutiny applies. 

A. The political-committee regulations are unconstitutional as 

applied to Plaintiffs under any level of scrutiny. 

As Plaintiffs demonstrated in their opening brief, strict scrutiny applies to 

their challenge to the political-committee regulations. See Appellants’ Merits Brief 

at 46-47, 53. The Supreme Court has long recognized the significant burdens 

political-committee status imposes on groups like SpeechNow.org and has thus 

applied strict scrutiny to those burdens. See WRTL II, 551 U.S. at 464, 477-78 & 

n.9 (stating that “PACs impose well-documented and onerous burdens, particularly 

on small nonprofits” and applying strict scrutiny); MCFL, 479 U.S. at 256 

(plurality opinion) (stating that the “practical effect [of political-committee status] 

on MCFL in this case is to make engaging in protected speech a severely 

demanding task”); id. at 256 (majority opinion) (applying strict scrutiny). 

In arguing that intermediate scrutiny applies, the FEC relies on Buckley and 

McConnell but ignores that in neither case were the disclosure laws at issue 

anywhere near as burdensome as the regulations that apply to political committees. 

Case: 08-5223 Document: 1222740 Filed: 12/29/2009 Page: 31
25

Indeed, Buckley’s discussion of disclosure applied to the very type of independentexpenditure disclosures Plaintiffs are arguing should apply to them. 424 U.S. at 

74-82. McConnell’s discussion of disclosure applied to whether the identities of 

those making electioneering communications would be disclosed, which is 

information SpeechNow.org will disclose under § 434(c). 540 U.S. at 194-202. In 

short, the FEC confuses the scrutiny that applies to challenges to simple disclosure 

requirements like § 434(c)—which Plaintiffs are not challenging—with the 

scrutiny that applies to far more burdensome regulations such as the politicalcommittee regulations. The latter clearly get strict scrutiny. See MCFL, 479 U.S. 

at 256; Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358 (1997) (noting 

that “severe burdens” on political parties’ associational rights are reviewed with 

strict scrutiny, while “lesser burdens ... trigger less exacting review ....”). 

But even if strict scrutiny did not apply, the FEC still could not prevail. 

Intermediate scrutiny does not permit the FEC to apply the broadest regulatory 

regime possible in order to obtain disclosure; it must still demonstrate that 

imposing the administrative, organizational, and continuous reporting requirements 

that apply to political committees is a narrowly tailored means of obtaining 

disclosure. See, e.g., Ward v. Rock Against Racism, 491 U.S. 781, 798 (1989) 

(recognizing that the government must demonstrate narrow tailoring under 

intermediate scrutiny). But the FEC cannot do so because SpeechNow.org will 

Case: 08-5223 Document: 1222740 Filed: 12/29/2009 Page: 32
26

satisfy the government’s legitimate interests by disclosing pursuant to § 434(c). 

See Buckley, 424 U.S. at 80-81. 

Davis v. FEC is instructive on this point. In Davis, the Supreme Court 

struck down the so-called “Millionaires’ Amendment,” which subjected candidates 

who financed their own campaigns to asymmetrical contribution limits. 128 S. Ct. 

at 2772. Considering the government’s argument that the amendment’s disclosure 

provisions should nonetheless remain in place, the Court applied exacting scrutiny 

to the disclosure provisions. Relying on Buckley, the Court made clear that this 

scrutiny was a two-step analysis. First, there must be “a ‘relevant correlation’ or 

‘substantial relation’ between the governmental interest and the information 

required to be disclosed.” Id. at 2775 (citing Buckley, 424 U.S. at 64). Second, 

“the governmental interest ‘must survive exacting scrutiny.’” Id. In all events, “a 

mere showing of some legitimate governmental interest” does not satisfy this 

scrutiny. Id. 

The FEC made the same basic argument in Davis that it makes here. It 

argued that the additional disclosure requirements that applied to candidates 

subject to the Millionaire’s Amendment would give the public additional important 

information about those candidates. Brief of Appellee at 48, Davis v. FEC, 128 S. 

Ct. 2759 (2008) (No. 07-320), 2008 WL 742921. The Court rejected this 

argument, finding that the additional disclosure requirements could not survive the 

Case: 08-5223 Document: 1222740 Filed: 12/29/2009 Page: 33
27

elimination of the Millionaire’s Amendment. Davis, 128 S. Ct. at 2775. If the 

FEC’s argument that disclosure requires no narrow tailoring were correct, the 

government’s argument would have easily prevailed in Davis, because more 

information can virtually always be said to advance the government’s interest in 

disclosure. 

Davis was entirely consistent with the Court’s approach in Buckley. 

Notably, in Buckley, the Court relied on Pollard v. Roberts, which involved a 

prosecutor’s attempt to subpoena contributor records of the Republican Party of 

Arkansas. See 424 U.S. at 64 (citing 283 F. Supp. 248, 257 (E.D. Ark. 1968), 

aff’d, 393 U.S. 14 (1968) (per curiam)). While recognizing the prosecutor’s 

legitimate power to subpoena information necessary to a criminal investigation, the 

court nonetheless enjoined enforcement of the subpoenas because they were 

broader than necessary to further the government’s legitimate interests. Pollard, 

283 F. Supp. at 257-59. Just as the subpoenas could not survive narrow tailoring, 

neither can the FEC’s attempt to impose political-committee requirements on 

SpeechNow.org.9

 

9

 The FEC’s claim that David Keating “can handle” political-committee 

requirements, FEC Merits Brief at 55-57, is irrelevant even if it is true. MCFL, 

479 U.S. at 263 (“While the burden on MCFL’s speech is not insurmountable, we 

cannot permit it to be imposed without a constitutionally adequate justification.”); 

WRTL II, 551 U.S. at 477 n.9 (rejecting argument by dissent that WRTL could be 

required to speak through a political committee because it had shown the ability to 

operate a PAC). 

Case: 08-5223 Document: 1222740 Filed: 12/29/2009 Page: 34
28

B. SpeechNow.org’s “major purpose” does not make the application 

of political-committee status to SpeechNow.org constitutional. 

The FEC largely ignores Plaintiffs’ argument that SpeechNow.org’s “major 

purpose” alone does not make the application of political-committee status to it 

constitutional. Instead, the FEC perfunctorily argues that MCFL’s discussion of 

“major purpose” is not dicta, but it fails to explain how the discussion of major 

purpose could have been anything but dicta given that the issue was not before the 

Court. See FEC Merits Brief at 34. The FEC then argues that even if the 

discussion is dicta, it must be treated as authoritative. Id. at 34 n.9. But this Court 

has noted that Supreme Court dicta, while “forceful,” is “not binding.” Ctr. for 

Biological Diversity v. U.S. Dep’t of Interior, 563 F.3d 466, 481 (D.C. Cir. 2009) 

(quoting United States v. Oakar, 111 F.3d 146, 153 (D.C. Cir. 1997)). Moreover, 

the FEC omits an important qualification: that the authority of Supreme Court dicta 

comes from it having been “carefully considered.” S. Nuclear Operating Co. v. 

NLRB, 524 F.3d 1350, 1356 (D.C. Cir. 2008). As discussed in Plaintiffs’ opening 

brief, the Supreme Court in MCFL expressed no opinion on whether it would be 

constitutional to apply political-committee requirements to all groups with a major 

purpose of influencing elections. See Appellants’ Merits Brief at 54-55. Thus, the 

Court’s dicta hardly represents a “carefully considered” statement of the 

constitutionality of those requirements. 

Case: 08-5223 Document: 1222740 Filed: 12/29/2009 Page: 35
29

The FEC next relies on dicta from this Court’s vacated decision in Akins v. 

FEC, 101 F.3d 731 (D.C. Cir. 1997) (en banc), vacated, 524 U.S. 11 (1998), for 

the proposition that political-committee requirements can constitutionally be 

applied to groups that make only independent expenditures. See FEC Merits Brief 

at 36. But the Akins court was never presented with this issue, and thus could not 

have decided it. The actual issue before the Court was whether a group without a 

major purpose of influencing elections could constitutionally be treated as a 

political committee because of its contributions to candidates. See 101 F.3d at 

742. Furthermore, Akins recognized that MCFL’s discussion of “major purpose” 

was dicta. See id. at 741. Thus, Akins does not support the FEC’s argument. 

In sum, SpeechNow.org will disclose all information necessary to satisfy the 

government’s interest in disclosure under the provision Congress provided for 

those who make independent expenditures. The FEC can provide no 

constitutionally adequate reason to burden Plaintiffs’ First Amendment rights with 

additional regulations that serve no legitimate purpose. 

Case: 08-5223 Document: 1222740 Filed: 12/29/2009 Page: 36
30

CONCLUSION

For the foregoing reasons, this Court should rule in Plaintiffs’ favor on all 

certified questions. 

Respectfully submitted, 

/s/ Steven M. Simpson 

Steven M. Simpson (DC Bar No. 462553) 

William H. Mellor (DC Bar No. 462072) 

Robert Gall (DC Bar No. 482476) 

Robert P. Frommer (DC Bar No. 497308) 

Paul M. Sherman (DC Bar No. 978663) 

INSTITUTE FOR JUSTICE

901 N. Glebe Road, Suite 900 

Arlington, VA 22203 

Tel: (703) 682-9320 

Email: wmellor@ij.org, ssimpson@ij.org, 

bgall@ij.org, rfrommer@ij.org, psherman@ij.org 

Stephen M. Hoersting 

Bradley A. Smith 

CENTER FOR COMPETITIVE POLITICS

124 W. Street South, Suite 201 

Alexandria, VA 22314 

Tel: (703) 894-6800 

Email: shoersting@campaignfreedom.org, 

BSmith@law.capital.edu 

Attorneys for Plaintiffs 

Case: 08-5223 Document: 1222740 Filed: 12/29/2009 Page: 37
CERTIFICATE OF COMPLIANCE 

This brief complies with the type-volume limitation of Federal Rule of 

Appellate Procedure 32(a)(7)(B) because this brief contains 6,916 words, 

excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). 

This brief complies with the typeface requirements of Federal Rule of 

Appellate Procedure 32(a)(5) and the type-style requirements of Federal Rule of 

Appellate Procedure 32(a)(6) because this brief has been prepared in a 

proportionally spaced typeface using Microsoft Word in 14-point Times New 

Roman font. 

 /s/ Steven M. Simpson 

 Steven M. Simpson 

 Counsel for Plaintiffs-Appellants 

Case: 08-5223 Document: 1222740 Filed: 12/29/2009 Page: 38
CERTIFICATE OF FILING AND SERVICE 

 I hereby certify that on this 29th day of December, 2009, I caused this Reply 

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

CM/ECF System. 

I further certify that on this 29th day of December, 2009, I filed with the 

Clerk’s Office of the United States Court of Appeals for the District of Columbia 

Circuit, via hand delivery, the required number of copies of this Reply Brief of 

Appellants, and further certify that I served, via UPS Ground, the required number 

of said Brief to the following: 

Robert W. Bonham, III 

David B. Kolker 

Steve N. Hajjar 

Kevin Deeley 

FEDERAL ELECTION COMMISSION 

999 East Street, N.W. 

Washington, DC 20463 

Counsel for Appellee 

/s/ Steven M. Simpson 

 Steven M. Simpson 

Counsel for Plaintiffs-Appellants 

Case: 08-5223 Document: 1222740 Filed: 12/29/2009 Page: 39
Page 1 

UNITED STATES CODE SERVICE 

Copyright © 2009 Matthew Bender & Company, Inc. 

a member of the LexisNexis Group (TM) 

All rights reserved. 

*** CURRENT THROUGH PL 111-116, APPROVED 12/16/2009 *** 

TITLE 2. THE CONGRESS 

CHAPTER 14. FEDERAL ELECTION CAMPAIGNS 

DISCLOSURE OF FEDERAL CAMPAIGN FUNDS 

Go to the United States Code Service Archive Directory

2 USCS § 441e 

§ 441e. Contributions and donations by foreign nationals 

(a) Prohibition. It shall be unlawful for-- 

 (1) a foreign national, directly or indirectly, to make-- 

 (A) a contribution or donation of money or other thing of value, or to make an express or implied promise to make a 

contribution or donation, in connection with a Federal, State, or local election; 

 (B) a contribution or donation to a committee of a political party; or 

 (C) an expenditure, independent expenditure, or disbursement for an electioneering communication (within the 

meaning of section 304(f)(3) [2 USCS § 434(f)(3)]); or 

 (2) a person to solicit, accept, or receive a contribution or donation described in subparagraph (A) or (B) of paragraph 

(1) from a foreign national. 

 

(b) "Foreign national" defined. As used in this section, the term "foreign national" means-- 

 (1) a foreign principal, as such term is defined by section 1(b) of the Foreign Agents Registration Act of 1938 (22 

U.S.C. 611(b)), except that the term "foreign national" shall not include any individual who is a citizen of the United 

States; or 

 (2) an individual who is not a citizen of the United States or a national of the United States (as defined in section 

101(a)(22) of the Immigration and Nationality Act [8 USCS § 1101(a)(22)]) and who is not lawfully admitted for 

permanent residence, as defined by section 101(a)(20) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(20)). 

Case: 08-5223 Document: 1222740 Filed: 12/29/2009 Page: 40
Page 1 

LEXISNEXIS' CODE OF FEDERAL REGULATIONS 

Copyright (c) 2009, by Matthew Bender & Company, a member 

of the LexisNexis Group. All rights reserved. 

*** THIS SECTION IS CURRENT THROUGH THE DECEMBER 18, 2009 ISSUE OF *** 

*** THE FEDERAL REGISTER *** 

TITLE 11 -- FEDERAL ELECTIONS 

CHAPTER I -- FEDERAL ELECTION COMMISSION 

SUBCHAPTER A -- GENERAL 

PART 114 -- CORPORATE AND LABOR ORGANIZATION ACTIVITY 

 

 

Go to the CFR Archive Directory

11 CFR 114.10 

 § 114.10 Nonprofit corporations exempt from the prohibitions on making independent expenditures and electioneering 

communications. 

 [PUBLISHER'S NOTE: 67 FR 78679, 78681, Dec. 26, 2002, purported to substitute "109.10" for "109.2" in 

paragraph (e)(2). However, this could not be implemented, as this language does not exist. It is expected that the agency 

will issue a correction in the Federal Register.] 

 (a) Scope. This section describes those nonprofit corporations that qualify for an exemption in 11 CFR 114.2. It 

sets out the procedures for demonstrating qualified nonprofit corporation status, for reporting independent expenditures 

and electioneering communications, and for disclosing the potential use of donations for political purposes. 

 (b) Definitions. For the purposes of this section -- 

 (1) The promotion of political ideas includes issue advocacy, election influencing activity, and research, training or 

educational activity that is expressly tied to the organization's political goals. 

 (2) A corporation's express purpose includes: 

 (i) The corporation's purpose as stated in its charter, articles of incorporation, or bylaws, except that a statement 

such as "any lawful purpose," "any lawful activity," or other comparable statement will not preclude a finding under 

paragraph (c) of this section that the corporation's only express purpose is the promotion of political ideas; 

 (ii) The corporation's purpose as publicly stated by the corporation or its agents; and 

 (iii) Purposes evidenced by activities in which the corporation actually engages. 

 (3) (i) The term business activities includes but is not limited to: 

 (A) Any provision of goods or services that results in income to the corporation; and 

 (B) Advertising or promotional activity which results in income to the corporation, other than in the form of 

membership dues or donations. 

 (ii) The term business activities does not include fundraising activities that are expressly described as requests for 

donations that may be used for political purposes, such as supporting or opposing candidates. 

 (4) The term shareholder has the same meaning as the term stockholder, as defined in 11 CFR 114.1(h). 

 (c) Qualified nonprofit corporations. For the purposes of this section, a qualified nonprofit corporation is a 

corporation that has all the characteristics set forth in paragraphs (c)(1) through (c)(5) of this section: 

Case: 08-5223 Document: 1222740 Filed: 12/29/2009 Page: 41
 (1) Its only express purpose is the promotion of political ideas, as defined in paragraph (b)(1) of this section; 

 (2) It cannot engage in business activities; 

 (3) It has: 

 (i) No shareholders or other persons, other than employees and creditors with no ownership interest, affiliated in 

any way that could allow them to make a claim on the organization's assets or earnings; and 

 (ii) No persons who are offered or who receive any benefit that is a disincentive for them to disassociate 

themselves with the corporation on the basis of the corporation's position on a political issue. Such benefits include but 

are not limited to: 

 (A) Credit cards, insurance policies or savings plans; and 

 (B) Training, education, or business information, other than that which is necessary to enable recipients to engage 

in the promotion of the group's political ideas. 

 (4) It: 

 (i) Was not established by a business corporation or labor organization; 

 (ii) Does not directly or indirectly accept donations of anything of value from business corporations, or labor 

organizations; and 

 (iii) If unable, for good cause, to demonstrate through accounting records that paragraph (c)(4)(ii) of this section is 

satisfied, has a written policy against accepting donations from business corporations or labor organizations; and 

 (5) It is described in 26 U.S.C. 501(c)(4). 

 (d) Permitted corporate independent expenditures and electioneering communications. (1) A qualified nonprofit 

corporation may make independent expenditures, as defined in 11 CFR 100.16, without violating the prohibitions 

against corporate expenditures contained in 11 CFR part 114. 

 (2) A qualified nonprofit corporation may make electioneering communications, as defined in 11 CFR 100.29, 

without violating the prohibitions against corporate expenditures contained in 11 CFR part 114. 

 (3) Except as provided in paragraphs (d)(1) and (d)(2) of this section, qualified nonprofit corporations remain 

subject to the requirements and limitations of 11 CFR part 114, including those provisions prohibiting corporate 

contributions, whether monetary or in-kind. 

 (e) Qualified nonprofit corporations; reporting requirements. -- (1) Procedures for demonstrating qualified 

nonprofit corporation status. (i) If a corporation makes independent expenditures under paragraph (d)(1) of this section 

that aggregate in excess of $ 250 in a calendar year, the corporation shall certify, in accordance with paragraph 

(e)(1)(i)(B) of this section, that it is eligible for an exemption from the prohibitions against corporate expenditures 

contained in 11 CFR part 114. 

 (A) This certification is due no later than the due date of the first independent expenditure report required under 

paragraph (e)(2)(i) of this section. 

 (B) This certification may be made either as part of filing FEC Form 5 (independent expenditure form) or, if the 

corporation is not required to file electronically under 11 CFR 104.18, by submitting a letter in lieu of the form. The 

letter shall contain the name and address of the corporation and the signature and printed name of the individual filing 

the qualifying statement. The letter shall also certify that the corporation has the characteristics set forth in paragraphs 

(c)(1) through (c)(5) of this section. A corporation that does not have all of the characteristics set forth in paragraphs 

(c)(1) through (c)(5) of this section, but has been deemed entitled to qualified nonprofit corporation status by a court of 

competent jurisdiction in a case in which the same corporation was a party, may certify that application of the court's 

ruling to the corporation's activities in a subsequent year entitles the corporation to qualified nonprofit corporation 

status. Such certification shall be included in the letter submitted in lieu of the FEC form. 

 (ii) If a corporation makes electioneering communications under paragraph (d)(2) of this section that aggregate in 

excess of $ 10,000 in a calendar year, the corporation shall certify, in accordance with paragraph (e)(1)(ii)(B) of this 

section, that it is eligible for an exemption from the prohibitions against corporate expenditures contained in 11 CFR 

part 114. 

Case: 08-5223 Document: 1222740 Filed: 12/29/2009 Page: 42
 (A) This certification is due no later than the due date of the first electioneering communication statement required 

under paragraph (e)(2)(ii) of this section. 

 (B) This certification must be made as part of filing FEC Form 9 (electioneering communication form). 

 (2) Reporting independent expenditures and electioneering communications. (i) Qualified nonprofit corporations 

that make independent expenditures aggregating in excess of $ 250 in a calendar year shall file reports as required by 11 

CFR part 104. 

 (ii) Qualified nonprofit corporations that make electioneering communications aggregating in excess of $ 10,000 in 

a calendar year shall file statements as required by 11 CFR 104.14. 

 (f) Solicitation; disclosure of use of contributions for political purposes. Whenever a qualified nonprofit 

corporation solicits donations, the solicitation shall inform potential donors that their donations may be used for 

political purposes, such as supporting or opposing candidates. 

 (g) Non-authorization notice. Qualified nonprofit corporations making independent expenditures or electioneering 

communications under this section shall comply with the requirements of 11 CFR 110.11. 

 (h) Segregated bank account. A qualified nonprofit corporation may, but is not required to, establish a segregated 

bank account into which it deposits only funds donated or otherwise provided by individuals, as described in 11 CFR 

part 104, from which it makes disbursements for electioneering communications. 

 (i) Activities prohibited by the Internal Revenue Code. Nothing in this section shall be construed to authorize any 

organization exempt from taxation under 26 U.S.C. 501(a), including any qualified nonprofit corporation, to carry out 

any activity that it is prohibited from undertaking by the Internal Revenue Code, 26 U.S.C. 501, et seq. 

Case: 08-5223 Document: 1222740 Filed: 12/29/2009 Page: 43