8

fined . . . as communications ‘susceptible of no reason-
able interpretation other than as an appeal to vote for
or against a specific candidate.” Opp’n 12-13 (emphasis
added) (citations omitted). But the “functional equiva-
lent of express advocacy” was an electioneering commu-
nication, not a communication, that contained such an
appeal to vote.* And the Government’s assertion that
WRTL-II “expressly rejected the contention that this
test was ‘impermissibly vague,” Opp’n 13, fails to an-
swer the controlling fact that “the test is impermissibly
vague absent that definition.” Pet.19 (citing 551 U.S.
at 474 n.7). At the cited WRTL-II footnote, Chief Jus-
tice Roberts (joined by Alito, J.) responded to Justice
Scalia’s position (joined by Kennedy & Thomas, JJ.)
that the test was unconstitutional for vagueness by
“agree[ing] . . . on the imperative for clarity” and say-
ing the bright-line requirement was met because, inter
alia, “this test is only triggered if the speech meets the
brightline requirements of [the electioneering-commu-
nication definition] in the first place.” Thus, five mem-
bers of this Court declared the test either unconstitu-
tionally vague or only saved by being cabined within
the electioneering-communication definition that Mc-
Connell found not vague. See 540 U.S. at 192. It is not
a free-floating test that may be plucked from its saving
context and inserted where that context is lacking.®

“Thus, the Government is simply wrong that “the func-
tional equivalent’ of express advocacy’ [is] constitutionally
indistinguishable from... ‘expressly advocating.” Opp’n 14.
The functional equivalent of express advocacy cannot be
express advocacy.

° The Government argues that “100.22(b) is narrower
than [the appeal-to-vote test], as the regulation requires an
‘unambiguous’ electoral portion... , while... [WRTL-IT]


Table of Authorities

Cases
Arizona Free Enterprise Club’s Freedom Club PAC

v. Bennett, 181 S. Ct. 2806 (2011)............. 3
Buckley v. Valeo, 424 U.S. 1 (1976). ........... 5-7
Citizens United v. FEC, 130 S. Ct. 876 (2010)

Ll cecueeeeueueeueueuereeucueaeaes 2-4, 6, 9

FEC v. Christian Action Network, 894 F. Supp.

946 (W.D. Va. 1995).... 0.20... . cee eee eee 10
FEC v. Christian Action Network, 92 F.3d 1178

(4th Cir. 1996). 2.0... eee eee 10
FEC v. Massachusetts Citizens for Life, 479 U.S.

238 (1986)... eee eee eee ee 12
FEC v. Wisconsin Right to Life, 551 U.S. 449 (2007)

See ee eee ee eee eee eee eens 1,7
Maine Right to Life Committee v. FEC, 914 F.

Supp. 2d 8 (D. Me. 1996)................00. 10
Maine Right to Life Committee v. FEC, 98 F.3d 1

(Ist Cir. 1996). ... 0... eee ee eee eee 10
McConnell v. FEC, 540 U.S. 93 (2008)....... 5-8, 10

New Mexico Youth Organized v. Herrera, 611 F.3d
669 (10th Cir. 2010)... 6... eee ee 5

(iii)


122

phasis on it and its important analytical summation.
Instead, the Government argues, inter alia, that this
Court’s discussion of the major-purpose test in FEC v.
Massachusetts Citizens for Life, 479 U.S. 238 (1986),
does not guide how major purpose should be deter-
mined by focusing on the amount of regulable speech
in relation to MCFL’s total activities. Opp’n 21. What
is missing in the Government’s argument is what is
missing from the policy, i.e., constitutionally defensible
standards as to what is considered in determining ma-
jor purpose and the necessary bright-line protection for
free speech and association.

Instead, the Government tries to say that the intru-
sive investigation required under FEC’s vague totality-
of-the-circumstances approach to resolving a complaint
that a group’s major purpose should make it a PAC
will be “mitigated by . . . reliance on public documents
....” Opp’n 22. The Government cites “App.27a,”
which says nothing of the sort. And FEC’s own PAC-
Status 2 document (see Pet.24), setting out its PAC-
status policy, states that the “major purpose doctrine
requires the Commission to conduct investigations into
the conduct of specific organizations that may reach
well beyond publicly available advertisements.” 72 Fed.
Reg. 5601 (emphasis added).”

There should be bright-line standards here to pro-
tect First Amendment rights from such a vague,
overbroad, and intrusive enforcement policy. Certiorari
is required to fix this problem.

‘ That courts claim there is no major-purpose test raises
no new issue but shows this case’s national importance.
Compare Pet.30 with Opp’n 22.


4

The present case is not about the sort of mere “dis-
closure” to which Citizens United applied exacting
scrutiny. It involves burdens requiring strict scrutiny.
FEC’s renewed enforcement of 11 C.F.R. 100.22(b) was
central to imposing PAC-status on groups that had not
considered themselves to be PACs (and so paid large
fines for not having registered and operated as PACs).
See Pet.24 (and cited materials). FEC’s PAC-status
policy imposes PAC-burdens. So strict scrutiny applies
to both 100.22(b) and FEC’s PAC-status policy.*

“But under any standard, FEC’s regulation and pol-
icy are vague, overbroad, and inconsistent with this
Court’s holdings as to the nature of the express-advo-
cacy and major purpose tests,” Pet.15-16, as discussed

* The Government argues that if RTAA were found, post
facto, to have been a PAC, it would not have been subject to
the requirement of using federal funds for its solicitations
because of cases holding that independent-expenditure-only
committees (“IE-PACs”) may receive unlimited contribu-
tions, including from corporations and unions. Opp’n 10-11.
The government thus tries to justify reduced scrutiny. The
error is that IE-PACs are still PACs, subject to the organi-
zational and reporting requirements that Citizens United
listed and pronounced “onerous” and subject to “strict scru-
tiny” without even mentioning source-and-amount limits on
contributions. See 130 S.Ct. at 897-98. And the funds that
RTAA would have been required to use for fundraising—
even if it had met the requirements for becoming an IE-
PAG, which it had not—still would have been subject to the
remaining “federal fund” requirements, e.g., no foreign-na-
tional contributions and contributions must have been re-
ceived, processed, and reported as PAC funds. The govern-
ment fails to disprove the post-facto trap of being declared
a PAC when a group did not operate as one due to the chal-
lenged vague regulation and policy.


Reasons to Grant the Petition

Introduction

As set out in RTAA’s Petition, the FEC Commission-
ers are split 3-3 over the issues herein. Three oppose
the “inconsistent[]” and “overbroad|[]” application of 11
C.F.R. 100.22(b) and the erroneous “conflation” of the
express-advocacy test with the appeal-to-vote test of
WRTL-II,’ which result in “reporting problems” and
(coupled with problems with “the major-purpose test”
enforcement policy) cause “confusion as to whether a
group is required to register and report as a political
committee.” Pet.23 (citation omitted). These three
would not enforce 100.22(b) because of questions about
its constitutionality and statutory authority. Pet.16
n.5. They cite serious compliance problems caused by
intercircuit nonacquiesence coupled with broadcasts
reaching multiple jurisdictions resulting in the same
ad being deemed an independent expenditure in one
and an electioneering communication in another.
Pet.23-24. And these three would restrict what the
FEC may consider in determining a group’s major pur-
pose. Pet.32.

Yet Respondents (“Government”) ignore this split,
not showing why it alone does not qualify this case for
certiorari review. The closest their Opposition (“Opp’n”)
comes is noting “disagreement among the FEC’s six
Commissioners regarding . .. communications,” but it
claims that disagreement does not demonstrate the
inherent vagueness of 100.22(b) because of “close
cases.” Opp’n 15-16. That is erroneous, see infra, but

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


North Carolina Right to Life v. Leake, 525 F.3d
274 (4th Cir. 2008). 2.2.0... eee eee 11

Right to Life of Duchess County v. FEC, 6 F.
Supp. 2d 248 (S.D.N.Y. 1998). .............. 10

Virginia v. American Booksellers Ass’n, Inc., 484 U.S.
383 (1988). 0... eee eee eens 11

Constitutions, Statutes, Regulations & Rules

11 C.F.R. 100.22(b). 0.2... eee passim
2 U.S.C. 434(£)(8)(A)Gi). 0 eee eee 10
U.S. Const. amend. I...................0. passim
Other Authorities
FEC, Matter Under Review (“MUR”) 5024R

(Council for Responsible Government)........ 10

FEC, “Political Committee Status,” 72 Fed. Reg.
5595 (Feb. 7, 2007)... 0.0... cece eee ee 12

(iv)


13

Conclusion

For the reasons stated, this Court should grant this

petition.

Michael Boos

Law OFFICE OF MICHAEL
Boos

Suite 313

4101 Chain Bridge Road

Fairfax, VA 22030

703/691-7717

703-691-7543 (facsimile)

Respectfully submitted,

James Bopp, Jr.
Counsel of Record
Richard E. Coleson
THE Bopp Law Firm, PC
1 South 6th Street
Terre Haute, IN 47807
812/232-2434
812/235-3685 (facsimile)
jboppjr@aol.com


3

United rejected is like its obfuscation of this Court’s
express-advocacy and major-purpose tests at issue
here, and though the regulation and policy at issue
here also trigger PAC-burdens, the appellate court em-
ployed exacting scrutiny and returned the same hold-
ing that this Court vacated and ordered reconsidered
in light of Citizens United. Pet.15.

The Government does not mention, let alone dis-
pute, the necessity of bright-line tests to protect core
political speech—conceding that requirement (as it
must) though its defense of the challenged definition
and policy violates that requirement.

The Government argues that Citizens United re-
quires exacting scrutiny here. Opp’n 10. This fails be-
cause this Court applied strict scrutiny to both the
electioneering-communication ban and the PAC-option,
130 S.Ct. at 897-98, and only applied exacting scrutiny
to non-PAC disclosure, id. at 913-14. Thus, Citizens
United drew the strict-scrutiny line not at the exis-
tence of a ban, see Opp’n 11, but at when government
burdens free speech and association beyond the simple,
one-time, event-driven disclosure imposed on election-
eering communications—and especially when (as here)
PAC-burdens are imposed.” The problem of courts in-
voking “mere disclosure” as a talisman to uphold any
regulation short of a ban under complaisant exacting
scrutiny is widespread, see, e.g., App.11a, and this
problem is, in itself, a reason for this Court to grant
certiorari in order to correct this flawed analysis.

° Cf. Arizona Free Enterprise Club’s Freedom Club PAC
v. Bennett, 131 S.Ct. 2806, 2824 (2011) (strict scrutiny for
“substantial burden,” not a ban).


No. 12-311

In The
Supreme Court of the United States

The Real Truth About Abortion, Inc., Petitioner

Federal Election Commission and
United States Department of Justice

On Petition for a Writ of Certicrari to the United
States Court of Appeals for the Fourth Circuit

Reply to Brief in Opposition

Michael Boos

Law OFFICE OF MICHAEL
Boos

Suite 313

4101 Chain Bridge Road

Fairfax, VA 22030

703/691-7717

703-691-7543 (facsimile)

November 26, 2012

James Bopp, Jr.
Counsel of Record
Richard E. Coleson
THE Borp Law Firm, PC
1 South 6th Street
Terre Haute, IN 47807
812/232-2434
812/235-3685 (facsimile)
jboppjr@aol.com

Counsel for Petitioner
a



6

on the analysis, and it attempts to show that these
decisions do not consider the express-advocacy test a
magic-words test. But, for example, Anderson v. Spear,
356 F.3d 651 (6th Cir. 2004), expressly said that “ex-
press advocacy” was a magic-words test:

To understand . . . express advocacy ..., we
must look to... Buckley... . [T]o avoid
overbreadth, the Court utilized a bright-line
rule... that... referred only to expenditures
using terms of express advocacy, which it de-
fined as words such as vote for, elect, support,
cast your ballot for, Smith for Congress, vote
against, defeat, and reject.

Id. at 663-64 (citing 424 U.S. at 44 & n.52).

Third, the Government attempts prestidigitation:
“[C]ourts of appeals . . . since Citizens United have
unanimously held that the First Amendment does not
impose an express-advocacy limitation—much less a
magic-words limitation—on disclosure requirements.”
Opp’n 17 (emphasis added). But the issue here is
whether the express-advocacy test is a magic-words
test, not whether the Government can also require dis-
closure of electioneering communications.

B. The Holding Conflicts with this Court’s Deci-
sions.

This Court and members of this Court have repeat-
edly held and said that the express-advocacy test is a
magic-words test. Pet.18-19. The Government fails to
respond to, let alone rebut, this fact, which controls.

McConnell equated “express advocacy” with “magic
words,” Pet.18 (collecting cites), and used its discussion
of Buckley to add electioneering-communication disclo-
sure to the previous magic-words, express-advocacy


5

in Parts II and III. For example, even applying “exact-
ing scrutiny,” the Tenth Circuit held that a proper
major-purpose test is required before PAC-burdens
may be imposed. New Mexico Youth Organized v.
Herrera, 611 F.3d 669, 676 (10th Cir. 2010) ““NMYO”).
This is because Buckley’s analysis in establishing the
express-advocacy test (including in the disclosure con-
text, 424 U.S. at 79-80) and the major-purpose test
turned on whether the communications and groups at
issue were “unambiguously campaign related.” NMYO,
611 F.3d at 676-77 (quoting Buckley v. Valeo, 424 U.S.
1,79-81 (1976), an analysis that is independent of the
level of scrutiny. And if, as here, the challenged provi-
sion and policy are unconstitutionally vague and over-
broad and beyond statutory authority, there is no need
to consider whether they are appropriately tailored to
a sufficiently weighty interest.

II.
Express Advocacy Requires Magic Words.

A. The Holding Conflicts with Other Circuit De-
cisions.

The holding below conflicts with other circuits.
Pet.16-17. The Government unsuccessfully attempts to
evade these conflicts in three ways.

First, it tries to discount pre-McConnell decisions
based on the notion that McConnell v. FEC, 540 U.S.
93 (2003), eliminated the express-advocacy test as a
magic-words test. Opp’n 16. That argument was rebut-
ted already, Pet.18-19, and will be addressed in Part
ILB.

Second, it argues that post-McConnell decisions
“address state statutes,” Opp’n 17, which has no effect


2

the disagreement over specific ads is tangential to the
failure of the Opposition to address an internal FEC
split on the issues herein and show why that split does
not warrant certiorari review.

Given this internal split, the FEC Opposition ar-
gues the view of only three Commissioners—at the ex-
pense of the three who challenge 100.22(b) and the
PAC-status policy—though the Government refuses to
acknowledge what it does.

I.

Protecting Core Political Speech and Association
by Maintaining Established Bright Lines Is a
Matter of Great National Importance.

Another reason to grant certiorari is the great na-
tional importance of maintaining this Court’s bright-
line express-advocacy and major-purpose tests to pro-
tect core political speech and association. Pet.13-16.
This Court’s remand of this case for reconsideration in
light of Citizens United v. FEC, 130 S.Ct. 876 (2010),
was for reconsideration in light of an opinion that fol-
lowed this Court’s bright-line protection by

* repudiating FEC’s conversion of WRTL-IIs elec-
tioneering-communication, appeal-to-vote test into
a “a two-part, 11-factor balancing test,” id. at 895,

* rejecting “FEC[’s] . . . creat[ion of] a regime that
allows it to select what political speech is safe for
public consumption by applying ambiguous tests,”
id. at 896, and

* reviewing a provision triggering “onerous” PAC-
burdens under strict scrutiny, id.

Pet.15-16. Though FEC’s vague and overbroad expan-
sion of this Court’s appeal-to-vote test that Citizens


Table of Contents

Corporate Disclosure.............0000.000 eee q@

Table of Authorities. ..................2.00. (iv)

Reasons to Grant the Petition. ................. 1
I. Protecting Core Political Speech and Asso-

II.

II.

ciation by Maintaining Established Bright
Lines Is a Matter of Great National Impor-

Express Advocacy Requires Magic Words.. . . 5

A. The Holding Conflicts with Other Cir-
cuit Decisions.............. 0.000 ee eee 5

B. The Holding Conflicts with this Court’s
Decisions............. 00... c eee ee eee 6

C. The Lower Court’s Justification Is
Flawed.. 2... cee eee 7

D. FEC Splits Demonstrate 100.22(b)’s
Unconstitutional Vagueness........... 10

PAC-Status May Only Be Imposed on
Groups with the Major Purpose of
Regulable, Campaign-Related Activity.. ... 11

Conclusion. ......... 00... e cece cece 13

(ii)


9

Congress created, and this Court approved, a sys-
tem in which three kinds of communications trigger
disclosure obligations: (1) magic-words express advo-
cacy; (2) electioneering communications; and (3) any
communication made by a group whose major purpose
is nominating or electing candidates (a “political com-
mittee”). FEC’s attempt to broaden “express advocacy”
with a test created to narrow “electioneering communi-
cation” creates confusion for those who must report—
by definition “electioneering communication” excludes
“express advocacy.” Pet.20 n.9, 22.

The confusion and unconstitutional vagueness is
evident in disagreement among FEC’s Commissioners
and between the court below and FEC over specific
ads. Pet.20-24. The Government’s “close cases” answer,
Opp’n 16, dismisses a serious problem. The FEC Com-
missioners who insist an ad is express advocacy have
not deferred to their “reasonable” colleagues who say
it is not, as a reasonable-person requirement man-
dates. Instead, they would impose and enforce their
opinion of the ad if they had the votes. Thus, the Gov-
ernment’s recitation of the “no reasonable interpreta-
tion” standard rings hollow, as does its insistence that
“100.22(b) . . . resolves cases of potential disagreement
in favor of non-regulation.” Opp’n 16. The constitu-
tional solution to close cases is a speech-protective,
bright-line test so that there will be no such ambiguity,
not a vague test with an unenforced tie-breaker.

refers to the ‘mention’ of an election and similar ‘indicia of
express advocacy’... .” Opp’n 13. But “electoral portion” is
inherently vague and Citizens United rejected FEC’s effort
to convert WRTL-ITs appeal-to-vote test into “a two-part,
11-factor balancing test,” 130 S.Ct. at 895, by erroneously
incorporating such “indicia” into this Court’s test.


11

Il.

PAC-Status May Only Be Imposed on Groups
with the Major Purpose of Regulable,
Campaign-Related Activity.

The Government continues to argue that its PAC-
status enforcement policy “is not subject to judicial re-
view.” Opp’n 18. Two district-court and appellate-court
opinions herein have rejected this argument—as has
this Court in granting certiorari, vacating, and re-
manding this case for reconsideration. If plaintiffs may
challenge the policy, they may do so pre-enforcement.
See, e.g., Virginia v. American Booksellers Ass'n, Inc.,
484 U.S. 383, 393 (1988). So the Government’s argu-
ment that RTAA must await enforcement, Opp’n 19
(without cited authority), is erroneous.

As noted in the Introduction, supra, and the Peti-
tion, Pet.32, three FEC Commissioners cite problems
with the FEC’s PAC-status enforcement policy, which
(coupled with 100.22(b)) creates “confusion as to
whether a group is required to register and report as a
political committee.” Pet.23 (citation omitted). The Gov-
ernment’s failure to respond to this leaves the identi-
fied problem unrebutted, and it is an important reason
to grant review.

The Government’s arguments about what should be
considered in determining “major purpose” reveal pre-
cisely why this Court should grant certiorari. As RTAA
urges, Pet.26, and the Fourth Circuit held, major pur-
pose “is best understood as an empirical judgment as
to whether an organization primarily engages in
regulable, election-related speech,” North Carolina
Right to Life v. Leake, 525 F.3d 274, 287 (4th Cir. 2008)
(emphasis added). Remarkably, the Government to-
tally ignores Leake in this context, despite RTAA’s em-


Corporate Disclosure

The Real Truth About Abortion, Inc. (““RTAA”),
f.k.a. The Real Truth About Obama, Inc. (“RTAO”), has
no parent corporation and is a nonstock corporation, so

no publicly held company owns ten percent or more of
its stock.

(i)




7

disclosure, not to eliminate magic-words express advo-
cacy as a category of regulable speech. Pet.18. So the
Government’s linchpin argument—that McConnell
changed everything—fails. The Government essen-
tially concedes this by citing a dissent to support its
point. Opp’n 16.

The Government argues that McConnell said that
Buckley's express-advocacy test was a product of statu-
tory construction, not a constitutional requirement.
Opp’n 12. But Buckley’s magic-words interpretation
was a saving construction necessary to avoid vague-
ness and overbreadth by limiting regulable speech (in-
cluding in the disclosure context) to that which the
government has constitutional authority to regulate,
j.e., that which is “unambiguously related to the cam-
paign of a particular federal candidate.” Buckley, 424
U.S. at 80. So underlying both the express-advocacy
and major-purpose tests lies this constitutional man-
date. See id. at 79-81. And because Buckley gave “ex-
penditure” a saving construction, the current definition
of “independent expenditure” must follow that construc-
tion or be beyond statutory authority. See infra.

C. The Lower Court’s Justification Is Flawed.

RTAA showed that the district court’s reliance on
similarities between 100.22(b) and WRTL-Is appeal-
to-vote test, 551 U.S. at 469-70, is flawed because the
appeal-to-vote test was created as an electioneering-
communication limitation and is unconstitutionally
vague beyond the limits of the electioneering-communi-
cation definition. Pet.19 (citing WRTL-IJ, 551 U.S. at
474 n.7).

The Government argues that WRTL-II held that
government may regulate “the functional equivalent of
express advocacy,” which the Government says is “de-


10

FEC’s attempted expansion of “express advocacy” is
also beyond statutory authority, though the district
court ignored this argument. Pet.21. The Government
suggests that this Court cannot consider this argument
because the district court ignored it, Opp’n 14, which is
erroneous. Then it argues that “Congress... expressly
approved . .. 100.22(b),” Opp’n 14-15, for which it cites
BCRA’s backup electioneering-communication defini-
tion. That definition is similar to 100.22(b) but adds
that “[nJothing in this subparagraph shall be construed
to affect the interpretation or application of .. .
100.22(b).” 2 U.S.C. 434(£)(3)(A)Gi). That is not “ex-
press[] approv(al]”—it merely leaves 100.22(b) as it
was, which was a state of non-enforcement in some
jurisdictions precisely because it was held to be beyond
statutory authority.® The statutory argument is suffi-
cient alone to resolve the challenge to 100.22(b), and
certiorari should be granted to allow full briefing of
this argument.

D. FEC Splits Demonstrate 100.22(b)’s Unconsti-
tutional Vagueness.

The Government fails to address the FEC split on
the issues herein, see Introduction, which split is rea-
son alone to grant certiorari. Pet.21-24.

° Section 100.22(b) was held to be beyond statutory au-
thority in Maine Right to Life Committee v. FEC, 914
F.Supp.2d 8, 13 (D.Me. 1996), aff'd per curiam, 98 F.3d 1
(Ist Cir. 1996), FEC v. Christian Action Network, 894
F.Supp. 946, 958 (W.D.Va. 1995), aff'd, 92 F.3d 1178 (4th
Cir. 1996), and Right to Life of Duchess County v. FEC, 6
F.Supp.2d 248, 253-54 (S.D.N.Y. 1998). In MUR 5024R
(Council for Responsible Government), FEC decided after
McConnell that 100.22(b) was enforceable nationwide.