ANTHONY HERMAN 

General Counsel 

DAVID KOLKER 

Associate General Counsel 

LISA J. STEVENSON 

Special Counsel to the General Counsel 

ADAV NOTI 

Acting Assistant General Counsel 

ERIN CHLOPAK 

Attorney 

Federal Election Commission 

999 E Street, NW 

Washington, DC 20463 

Telephone: (202) 694-1650 

Facsimile: (202) 219-0260 

CHRISTOPHER A. CROFTS 

United States Attorney 

NICHOLAS VASSALLO 

Assistant United States Attorney 

Post Office Box 668 

Cheyenne, WY 82002-0668 

Telephone: (307) 772-2124 

Facsimile: (307) 772-2123 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF WYOMING 

 

 ) 

FREE SPEECH, ) 

 ) 

 Plaintiff, ) Civ. No. 2:12-127 (SWS) 

 ) 

 v. ) 

 ) 

FEDERAL ELECTION COMMISSION, ) MOTION TO DISMISS 

 ) 

 Defendant. ) 

 ) 

FEDERAL ELECTION COMMISSION’S MOTION TO DISMISS

Case 2:12-cv-00127-SWS Document 33 Filed 09/24/12 Page 1 of 4
Defendant Federal Election Commission (“Commission”) respectfully moves the Court 

to dismiss this case with prejudice for failure to state a claim on which relief can be granted. 

Fed. R. Civ. P. 12(b)(6). As grounds for this motion, the Commission refers to (and incorporates 

by reference herein) its Opposition to Plaintiff’s Motion for Preliminary Injunction (Docket No. 

26) (“FEC Inj. Br.”), in which the Commission demonstrated the legal deficiencies of plaintiff’s 

claims and the constitutionality of (1) the Commission’s regulatory definition of “expressly 

advocating,” 11 C.F.R. § 100.22; (2) the Commission’s method for determining whether a group 

is a “political committee” as defined by 2 U.S.C. § 431(4)(A) and construed by the Supreme 

Court in Buckley v. Valeo, 424 U.S. 1, 79 (1976); and (3) the Commission’s standard for 

determining whether a request for donations is a solicitation for contributions under 2 U.S.C. 

§ 441d(a). Because the resolution of this case depends exclusively on legal questions that have 

been fully and extensively briefed by both parties and amicus curiae (see Docket Nos. 20, 26, 29) 

— and recently addressed by both parties during nearly two hours of oral argument (see Docket 

No. 31) — this Court may decide the merits of this case now, in connection with its 

consideration of plaintiff’s request for a preliminary injunction. 

In the alternative, should the Court decline to dismiss this case with prejudice, the 

Commission requests that the case be dismissed without prejudice under Federal Rule of Civil 

Procedure 41(b). Plaintiff’s First Amended Verified Complaint (Docket No. 24) violates Federal 

Rule of Civil Procedure 8, which requires that a pleading contain “a short and plain statement of 

the claim showing that the pleader is entitled to relief” and that “[e]ach allegation must be 

simple, concise, and direct.” Fed. R. Civ. P. 8(a)(2), (d)(1) (emphases added). 

Case 2:12-cv-00127-SWS Document 33 Filed 09/24/12 Page 2 of 4
2

For these reasons and those set forth in the accompanying Memorandum in Support of 

the Commission’s Motion to Dismiss, the Commission requests that the Court grant this Motion 

and dismiss the case. 

Respectfully submitted, 

Anthony Herman 

General Counsel 

David Kolker 

Associate General Counsel 

Lisa J. Stevenson 

Special Counsel to the General 

Counsel 

Adav Noti 

Acting Assistant General Counsel 

/s/ Erin Chlopak

Erin Chlopak 

Attorney 

Counsel for Defendant 

Federal Election Commission 

999 E Street, NW 

Washington, DC 20463 

 

Dated: September 24, 2012 

 

Christopher A. Crofts 

United States Attorney 

/s/ Nicholas Vassallo

Nicholas Vassallo 

Assistant United States Attorney

Case 2:12-cv-00127-SWS Document 33 Filed 09/24/12 Page 3 of 4
CERTIFICATE OF SERVICE 

 I hereby certify that on September 24, 2012, the foregoing Federal Election 

Commission’s Motion to Dismiss was filed electronically with the Clerk of Court through the 

Court’s ECF system, and served by electronic filing on the following recipients: 

John B. Speight 

4021 Snyder 

Cheyenne, WY 82001 

jbspeight@gmail.com

Stephen R. Klein 

Wyoming Liberty Group 

1902 Thomas Avenue, Suite 201 

Cheyenne, WY 82001 

Stephen.klein@wyliberty.org

Benjamin T. Barr 

10737 Hunting Lane 

Rockville, MD 20850 

benjamin.barr@gmail.com

/s/ Erin Chlopak

Erin Chlopak

Case 2:12-cv-00127-SWS Document 33 Filed 09/24/12 Page 4 of 4
ANTHONY HERMAN 

General Counsel 

DAVID KOLKER 

Associate General Counsel 

LISA J. STEVENSON 

Special Counsel to the General Counsel 

ADAV NOTI 

Acting Assistant General Counsel 

ERIN CHLOPAK 

Attorney 

Federal Election Commission 

999 E Street, NW 

Washington, DC 20463 

Telephone: (202) 694-1650 

Facsimile: (202) 219-0260 

CHRISTOPHER A. CROFTS 

United States Attorney 

NICHOLAS VASSALLO 

Assistant United States Attorney 

Post Office Box 668 

Cheyenne, WY 82002-0668 

Telephone: (307) 772-2124 

Facsimile: (307) 772-2123 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF WYOMING 

 ) 

FREE SPEECH, ) 

 ) 

 Plaintiff, ) Civ. No. 2:12-127 (SWS) 

 ) 

 v. ) 

 ) MEMORNADUM IN SUPPORT OF 

FEDERAL ELECTION COMMISSION, ) MOTION TO DISMISS 

 ) 

 Defendant. ) 

 ) 

FEDERAL ELECTION COMMISSION’S MEMORANDUM IN SUPPORT OF ITS 

MOTION TO DISMISS

Case 2:12-cv-00127-SWS Document 34 Filed 09/24/12 Page 1 of 8
Plaintiff’s First Amended Verified Complaint (Docket No. 24), fails to state a claim on 

which relief can be granted and accordingly should be dismissed with prejudice. Fed. R. Civ. P. 

12(b)(6). As grounds for this motion, Defendant Federal Election Commission (“Commission”) 

refers to (and incorporates by reference herein) its Opposition to Plaintiff’s Motion for 

Preliminary Injunction (Docket No. 26) (“FEC Inj. Br.”), in which the Commission demonstrated 

that plaintiff’s claims are legally untenable. Although the complaint contains broad allegations 

regarding the Commission and its conduct, it appears to state a constitutional challenge to three 

discrete aspects of federal campaign finance law: (1) the Commission’s regulatory definition of 

“expressly advocating,” 11 C.F.R. § 100.22; (2) the Commission’s method for determining 

whether a group is a “political committee” as defined by 2 U.S.C. § 431(4)(A), and construed by 

the Supreme Court in Buckley v. Valeo, 424 U.S. 1, 79 (1976); and (3) the Commission’s 

standard for determining whether a request for donations is a solicitation for contributions under 

2 U.S.C. § 441d(a). 

This case presents purely legal questions that have been fully and extensively briefed by 

both parties and amicus curiae (see Docket Nos. 20, 26, 29), and were recently addressed by both 

parties during nearly two hours of oral argument (see Docket No. 31). The Court may therefore 

decide the merits of this case now, in connection with its consideration of plaintiff’s request for a 

preliminary injunction. As outlined below and detailed in the Commission’s prior brief and oral 

argument, plaintiff fails to demonstrate that the regulation and policies it challenges are 

unconstitutional on their face or as applied to plaintiff, and its constitutional challenges thus fail 

as a matter of law. This case should accordingly be dismissed with prejudice. 

Case 2:12-cv-00127-SWS Document 34 Filed 09/24/12 Page 2 of 8
2

 Specifically, plaintiff’s claims fail as a matter of law because: 

 In Citizens United v. FEC, 130 S. Ct. 876 (2010), the Supreme Court struck down the 

statutory prohibition on corporate spending for independent expenditures. At the 

same time, eight Justices agreed that disclosure requirements for campaign-related 

speech are “less restrictive” of speech than a limit on spending, id. at 915, because 

such requirements “‘impose no ceiling on campaign-related activities’ and ‘do not 

prevent anyone from speaking.’” Id. at 914 (quoting Buckley, 424 U.S. at 64; 

McConnell v. FEC, 540 U.S. 93, 201 (2003)). The Court thus held that disclosure 

requirements are subject to intermediate, or “exacting,” scrutiny and upheld such 

requirements, even for communications that merely mention a candidate but contain 

no direct candidate advocacy. Id. at 914-16. Such disclosure requirements are 

substantially related to the important governmental interest of informing the 

electorate about the sources and financing of candidate-related speech. Id. (See FEC 

Inj. Br. at 2-5, 24-25.) 

 The challenged regulation, 11 C.F.R. § 100.22(b), defines “expressly advocating” and 

thus provides guidance on whether a communication is an “independent expenditure” 

subject to statutory disclosure requirements. Because Citizens United struck down 

the prohibition on direct corporate financing of independent expenditures in 2 U.S.C. 

§ 441(b), the Commission’s regulatory definition of expressly advocating, which had 

helped to implement that ban, no longer operates to restrict corporate (or union) 

speech. Section 100.22(b) now only triggers disclosure obligations in connection 

with such speech. (See FEC Inj. Br. at 2-5.)

 Likewise, for plaintiff and similarly situated groups that do not make any 

contributions to candidates, the Commission’s policies for determining whether a 

group is a political committee and whether a request for donations solicits regulable 

“contributions” each implicate only disclosure requirements. These requirements are 

highly similar to the disclosure provisions that the Supreme Court in Citizens United 

Case 2:12-cv-00127-SWS Document 34 Filed 09/24/12 Page 3 of 8
3

— and subsequently several Courts of Appeals — found to be substantially related to 

the important governmental interest of informing the electorate about the sources and 

financing of campaign advocacy. (FEC Inj. Br. at 24-27, 36-38, 39-41.) Such 

disclosures foster “transparency [that] enables the electorate to make informed 

decisions and give proper weight to different speakers and messages.” Citizens 

United, 130 S. Ct. at 916. The Fourth Circuit thus rejected the very arguments raised 

by plaintiff here in holding that section 100.22(b) is constitutional and in overruling 

its own earlier conclusion to the contrary. Real Truth About Abortion v. FEC, 681 

F.3d 544, 548-55, 550 n.2 (4th Cir. 2012) (“RTAA”) (overruling constitutional 

holding in Va. Soc’y for Human Life, Inc. v. FEC, 263 F.3d 379 (4th Cir. 2001)). 

(See FEC Inj. Br. at 18-22.) 

 The Commission’s case-by-case approach to determining whether a group is a 

“political committee” comports with the Supreme Court’s requirement that such 

groups have the “major purpose” of nominating or electing a federal candidate. 

Buckley, 424 U.S. at 79. The Commission’s approach is also entirely consistent with 

the Tenth Circuit’s holding that a group’s major purpose can be determined by 

examining its “central organizational purpose.” N.M. Youth Organized v. Herrera, 

611 F.3d 669, 677-78 (10th Cir. 2010). (See FEC Inj. Br. at 32-36.) The 

Commission’s case-by-case approach to determining a group’s major purpose has 

been upheld both under the Administrative Procedure Act as a proper exercise of the 

Commission’s discretion, Shays v. FEC, 511 F. Supp. 2d 19, 29-31 (D.D.C. 2007), 

and as a constitutional exercise of the “inherently . . . comparative task” necessitated 

by the Supreme Court’s “major purpose” requirement, RTAA, 681 F.3d at 556. As the 

Fourth Circuit recently recognized, “[t]he necessity of a contextual inquiry is 

supported by judicial decisions applying the major purpose test, which have used the 

same fact-intensive analysis that the Commission has adopted.” RTAA, 681 F.3d at 

557 (collecting cases). (See FEC Inj. Br. at 34-35.) And plaintiff agreed in its 

Case 2:12-cv-00127-SWS Document 34 Filed 09/24/12 Page 4 of 8
4

Memorandum in Support of its Motion for Preliminary Injunction that it is 

“undoubtedly true that in conducting the major purpose analysis, fact-intensive 

inquiries are often appropriate.” (Pl.’s Mem. at 33 (Docket No. 20).) 

 Plaintiff and the Commission agree that the proper legal standard for determining 

whether a request for donations is a “solicitation” for “contributions” is the test 

articulated by the Second Circuit in FEC v. Survival Education Fund, Inc., 60 F.3d 

285 (2d. Cir. 1995). (FEC Inj. Br. at 38-41.) And regardless of whether plaintiff’s 

donation requests solicit regulable contributions, plaintiff remains free to spend 

unlimited funds on such requests and to solicit unlimited funds for its express 

advocacy. (FEC Inj. Br. at 39-40.) 

 Because plaintiff does not meaningfully distinguish its purported as-applied 

challenges from its facial claims, the as-applied challenges fail for the same reasons 

as the facial challenges. (FEC Inj. Br. at 16-17 & nn.13, 30.) 

In the alternative, should the Court decline to dismiss this case with prejudice under Rule 

12(b)(6), this action should be dismissed without prejudice under Rule 41(b). Plaintiff’s First 

Amended Verified Complaint (Docket No. 24), violates Federal Rule of Civil Procedure 8, 

which requires that a pleading contain “a short and plain statement of the claim showing that the 

pleader is entitled to relief” and that “[e]ach allegation must be simple, concise, and direct.” 

Fed. R. Civ. P. 8(a)(2), (d)(1) (emphases added). The Tenth Circuit “has long recognized that 

defendants are prejudiced by having to respond to pleadings [that are] wordy and unwieldy,” and 

the district courts are not obliged to assess the merits of “pleadings [that are] rambling.” Nasious 

v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1162-63 (10th Cir. 2007). The Tenth Circuit 

has explained that “[e]mploying Rule 41(b) to dismiss a case without prejudice for failure to 

Case 2:12-cv-00127-SWS Document 34 Filed 09/24/12 Page 5 of 8
5

comply with Rule 8 of course allows the plaintiff another go at trimming the verbiage,” and thus 

“a district court may, without abusing its discretion, enter such an order without attention to any 

particular procedures.” Id. at 1162 & n.3 (“In numerous unpublished decisions, we have 

affirmed district courts’ dismissals of actions without prejudice for failure to comply with Rule 8 

under our basic abuse of discretion standard.”) (collecting cases); Mann v. Boatright, 477 F.3d 

1140, 1148 (10th Cir. 2007) (explaining that “Rule 8 serves the important purpose of requiring 

plaintiffs to state their claims intelligibly” and affirming dismissal where plaintiff “made her 

complaint unintelligible ‘by scattering and concealing in a morass of irrelevancies the few 

allegations that matter’”) (quoting United States ex rel. Garst v. Lockheed-Martin Corp., 328 

F.3d 374, 378 (7th Cir. 2003)). 

Plaintiff’s complaint eschews the “simplicity, conciseness and clarity” required by Rule 

8, in favor of verbose characterizations of the Commission itself, the Commission’s alleged 

historical success rate in unrelated lawsuits, and various judicial decisions and legal provisions. 

E.g. First Amend. Compl. ¶¶ 1, 4, 12, 24-27, 39, 47, 49, 53-55, 68, 72, 75-76, & n.1; see Mann, 

477 F.3d at 1148 (“‘Something labeled a complaint but written more as a press release, prolix in 

evidentiary detail, yet without simplicity, conciseness and clarity as to whom plaintiffs are suing 

for what wrongs, fails to perform the essential functions of a complaint.’”) (quoting McHenry v. 

Renne, 84 F.3d 1172, 1180 (9th Cir. 1996)). The Commission would be prejudiced by having to 

respond to each of plaintiff’s irrelevant allegations and its “wordy and unwieldy” 

characterizations of facts and law. Nasious, 492 F.3d at 1162. Thus, even if the Court declines 

to dismiss this case with prejudice under Rule 12(b)(6), at a minimum it should be dismissed 

Case 2:12-cv-00127-SWS Document 34 Filed 09/24/12 Page 6 of 8
6

without prejudice for failure to comply with Rule 8, while “allow[ing] the plaintiff another go at 

trimming the verbiage” and providing the required “short and plain statement” of its claims. 

CONCLUSION 

For all the foregoing reasons, and those set forth in the Commission’s Opposition to 

Plaintiff’s Motion for Preliminary Injunction (Docket No. 26), the Commission requests that the 

case be dismissed with prejudice under Federal Rule of Civil Procedure 12(b)(6). In the 

alternative, should the Commission’s request for dismissal with prejudice be denied, the 

Commission requests that the case be dismissed without prejudice under Rule 41(b) for failure to 

comply with Rule 8’s pleading requirements. 

Respectfully submitted, 

Anthony Herman 

General Counsel 

David Kolker 

Associate General Counsel 

Lisa J. Stevenson 

Special Counsel to the General 

Counsel 

Adav Noti 

Acting Assistant General Counsel 

/s/ Erin Chlopak

Erin Chlopak 

Attorney 

Counsel for Defendant 

Federal Election Commission 

999 E Street, NW 

Washington, DC 20463 

Dated: September 24, 2012 

Christopher A. Crofts 

United States Attorney 

/s/ Nicholas Vassallo

Nicholas Vassallo 

Assistant United States Attorney 

Case 2:12-cv-00127-SWS Document 34 Filed 09/24/12 Page 7 of 8
CERTIFICATE OF SERVICE 

 I hereby certify that on September 24, 2012, the foregoing Federal Election 

Commission’s Memorandum in Support of Its Motion to Dismiss was filed electronically with 

the Clerk of Court through the Court’s ECF system, and served by electronic filing on the 

following recipients: 

John B. Speight 

4021 Snyder 

Cheyenne, WY 82001 

jbspeight@gmail.com

Stephen R. Klein 

Wyoming Liberty Group 

1902 Thomas Avenue, Suite 201 

Cheyenne, WY 82001 

Stephen.klein@wyliberty.org

Benjamin T. Barr 

10737 Hunting Lane 

Rockville, MD 20850 

benjamin.barr@gmail.com

/s/ Erin Chlopak

Erin Chlopak 

Case 2:12-cv-00127-SWS Document 34 Filed 09/24/12 Page 8 of 8