No. 14-391

In the Supreme Court of the United States

STOP THIS INSANITY, INC. EMPLOYEE LEADERSHIP 

FUND, ET AL., PETITIONERS

v.

FEDERAL ELECTION COMMISSION

ON PETITION FOR A WRIT OF CERTIORARI 

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

LISA J. STEVENSON

Deputy General Counsel

KEVIN DEELEY

Acting Associate General 

Counsel

ERIN CHLOPAK

Acting Assistant General 

Counsel

STEVE N. HAJJAR

Attorney

Federal Election Commission

Washington, D.C. 20463

DONALD B. VERRILLI, JR. Solicitor General

Counsel of Record

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217
(I)

QUESTION PRESENTED

Whether the court of appeals correctly rejected petitioners’ challenge to provisions of the Federal Election Campaign Act of 1971, 52 U.S.C. 30116(a)(1)(C)

and 30118(b)(4) (formerly 2 U.S.C. 441a(a)(1)(C) and 

441b(b)(4)), that limit contributions, and solicitations 

for contributions, to the “separate segregated fund” of 

a corporation or labor union. 
(III)

TABLE OF CONTENTS

Page

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

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

Statement.........................................................................................1

Argument.......................................................................................10

Conclusion......................................................................................16

TABLE OF AUTHORITIES

Cases:

Alabama Democratic Conference v. Broussard, 

541 Fed. Appx. 931 (11th Cir. 2013)...................................15

Buckley v. Valeo, 424 U.S. 1 (1976).............................9, 12, 13

Catholic Leadership Coal. v. Reisman, 764 F.3d 409 

(5th Cir. 2014)............................................................13, 14, 15

Citizens United v. FEC, 558 U.S. 310 

(2010)..............................................................4, 8, 9, 10, 12, 13

EMILY’s List v. FEC, 581 F.3d 1 (D.C. Cir. 2009)...5, 11, 14

FEC v. Beaumont, 539 U.S. 146 (2003)..................................4

FEC v. National Right to Work Comm., 459 U.S. 197 

(1982)........................................................................................3

McConnell v. FEC, 540 U.S. 93 (2003) .................................12

McCutcheon v. FEC, 134 S. Ct. 1434 (2014) ................7, 9, 13

Republican Party v. King, 741 F.3d 1089 

(10th Cir. 2013)......................................................................14

SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir.),

cert. denied, 131 S. Ct. 553 (2010) ..................................5, 12

Vermont Right to Life Comm., Inc. v. Sorrell, 

758 F.3d 118 (2d Cir. 2014), petition for cert. 

pending, No. 14-380 (filed Sept. 29, 2014) .........................15

Constitution, statutes and regulations:

U.S. Const. Amend. I .....................................................passim
IV

Statutes and regulations—Continued: Page

Federal Election Campaign Act of 1971, 52 U.S.C. 

30101 (2 U.S.C. 431) et seq.....................................................1

2 U.S.C. 441b(b)(2)(c) (1982)..............................................3

52 U.S.C. 30101(4)(B) (2 U.S.C. 431(4)(B)).................2, 3

52 U.S.C. 30101(8)(A) (2 U.S.C. 431(8)(A))......................3

52 U.S.C. 30101(8)(B)(vi) (2 U.S.C. 431(8)(B)(vi)) .........4

52 U.S.C. 30101(9)(A) (2 U.S.C. 431(9)(A))......................3

52 U.S.C. 30101(9)(B)(v) (2 U.S.C. 431(9)(B)(v)) ...........4

52 U.S.C. 30104(a)-(b) (2 U.S.C. 434(a)-(b)) ....................3

52 U.S.C. 30104(b) (2 U.S.C. 434(b))................................4

52 U.S.C. 30106(b)(1) (2 U.S.C. 437c(b)(1)) .....................2

52 U.S.C. 30107(a)(8) (2 U.S.C. 437d(a)(8)) .....................2

52 U.S.C. 30108 (2 U.S.C. 437f).........................................2

52 U.S.C. 30109 (2 U.S.C. 437g)........................................2

52 U.S.C. 30109(d) (2 U.S.C. 437g(d)) ..............................2

52 U.S.C. 30111(a)(8) (2 U.S.C. 438(a)(8))........................2

52 U.S.C. 30111(d) (2 U.S.C. 438(d)).................................2

52 U.S.C. 30116(a)(1)(C) (2 U.S.C. 441a(a)(1)(C)) .........3

52 U.S.C. 30118(a) (2 U.S.C. 441b(a))...............................2

52 U.S.C. 30118(b)(2)(C)

(2 U.S.C. 441b(b)(2)(C))..................................2, 3, 4, 10

52 U.S.C. 30118(b)(3)(B)-(C) (2 U.S.C. 

441b(b)(3)(B)-(C))..........................................................4

52 U.S.C. 30118(b)(4)(A) (2 U.S.C. 441b(b)(4)(A))..........4

52 U.S.C. 30118(b)(4)(B) (2 U.S.C. 441b(b)(4)(B))..........4

11 C.F.R.: 

Section 106.6(a)....................................................................3

Section 114.5(b) ...................................................................4

Section 114.5(e)(1)...............................................................4

Section 114.5(e)(3)...............................................................3
V

Regulations—Continued: Page

Section 114.5(g)(1)...............................................................4

Section 114.6 ........................................................................4

Miscellaneous:

FEC Advisory Op. 2010-09, 2010 WL 3184267 

(July 22, 2010) ...................................................................6, 12

FEC Advisory Op. 2010-11, 2010 WL 3184269 

(July 22, 2010) ...................................................................5, 12

Independent Expenditures and Electioneering 

Communications by Corporations and Labor 

Organizations, 79 Fed. Reg. 62,817 (Oct. 21, 2014).....5, 12

U.S. H.R., Office of Law Revision Counsel, United 

States Code Editorial Reclassification Table, 

http://uscode.house.gov/editorialreclassification/

t52/Reclassifications_Title_52.html (last visited 

Dec. 1, 2014).............................................................................2
(1)

In the Supreme Court of the United States

No. 14-391

STOP THIS INSANITY, INC. EMPLOYEE LEADERSHIP 

FUND, ET AL., PETITIONERS

v.

FEDERAL ELECTION COMMISSION

ON PETITION FOR A WRIT OF CERTIORARI 

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a14a) is reported at 761 F.3d 10. The opinion of the 

district court (Pet. App. 15a-70a) is reported at 902 F. 

Supp. 2d 23.

JURISDICTION

The judgment of the court of appeals was entered 

on August 5, 2014. The petition for a writ of certiorari 

was filed on September 29, 2014. The jurisdiction of 

this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. a. The Federal Election Commission (FEC or 

Commission) is vested with statutory authority over 

the administration, interpretation, and civil enforcement of the Federal Election Campaign Act of 1971 
2

(FECA), 52 U.S.C. 30101 (2 U.S.C. 431) et seq.,1 and 

other federal campaign-finance statutes. The Commission is empowered to “formulate policy” with respect to FECA, 52 U.S.C. 30106(b)(1) (2 U.S.C. 

437c(b)(1)); “to make, amend, and repeal such rules 

* * * as are necessary to carry out the provisions 

of [FECA],” 52 U.S.C. 30107(a)(8) (2 U.S.C.

437d(a)(8)); see 52 U.S.C. 30111(a)(8) and (d) (2 U.S.C. 

438(a)(8) and (d)); to issue written advisory opinions 

concerning the application of FECA and Commission 

regulations to any specific proposed transaction or 

activity, 52 U.S.C. 30108 (2 U.S.C. 437f); and to civilly 

enforce FECA, 52 U.S.C. 30109 (2 U.S.C. 437g). The 

Department of Justice prosecutes criminal violations 

of FECA. See 52 U.S.C. 30109(d) (2 U.S.C. 437g(d)).

b. This case concerns provisions of FECA that 

govern “separate segregated fund[s]” established by 

corporations and labor organizations. 52 U.S.C. 

30101(4)(B), 30118(b)(2)(C) (2 U.S.C. 431(4)(B), 

441b(b)(2)(C)). FECA prohibits corporations and 

labor organizations from directly using their treasury 

funds to make “contribution[s]” (e.g., donations to 

candidates, parties, or political committees) or “expenditure[s]” (e.g., other outlays of money intended to 

influence an election) in connection with federal elections. 52 U.S.C. 30118(a) (2 U.S.C. 441b(a)); see 

 1 After the court of appeals issued its decision in this case, the 

provisions of FECA that were codified in Title 2 of the United 

States Code were recodified in a newly-created Title 52. See 

U.S. H.R., Office of Law Revision Counsel, United States 

Code Editorial Reclassification Table, http://uscode.house.gov/

editorialreclassification/t52/Reclassifications_ Title_52.html (last 

visited Dec. 1, 2014). No text of any provision was changed. To 

avoid confusion, this brief will include parenthetical citations to the 

former Title 2 provisions.
3

52 U.S.C. 30101(8)(A) and (9)(A) (2 U.S.C. 431(8)(A) 

and (9)(A)) (definitions of “contribution” and “expenditure”). FECA “permits some participation of 

unions and corporations in the federal electoral process,” however, “by allowing them to establish and pay 

the administrative expenses of ‘separate segregated 

fund[s],’ which may be ‘utilized for political purposes.’” FEC v. National Right to Work Comm., 459 U.S. 

197, 201 (1982) (NRWC) (brackets in original) (quoting 

2 U.S.C. 441b(b)(2)(C) (1982)); see 52 U.S.C. 

30118(b)(2)(C) (2 U.S.C. 441b(b)(2)(c)).

FECA classifies separate segregated funds as a 

type of “political committee.” 52 U.S.C. 30101(4)(B)

(2 U.S.C. 431(4)(B)). As such, they are governed by

FECA’s general regulation of such entities, including 

a prohibition on any person contributing more than 

$5000 per calendar year, 52 U.S.C. 30116(a)(1)(C) 

(2 U.S.C. 441a(a)(1)(C)), as well as a requirement to

register with the FEC and provide periodic reports on 

funds received and spent, 52 U.S.C. 30104(a)-(b) 

(2 U.S.C. 434(a)-(b)); 11 C.F.R. 114.5(e)(3). Unlike socalled “nonconnected” political committees (which are 

not directly tied to a particular corporation or labor 

organization), 11 C.F.R. 106.6(a), however, separate 

segregated funds “may be completely controlled by 

the sponsoring corporation or union, whose officers 

may decide which political candidates contributions to 

the fund will be spent to assist,” NRWC, 459 U.S. at 

200 n.4. “The fund must be separate from the sponsoring union or corporation only in the sense that 

there must be a strict segregation of its monies from 

the corporation’s [or union’s] other assets.” Ibid.

(internal quotation marks, citation, and brackets omitted).
4

In two significant ways, separate segregated funds

are regulated differently under FECA than are nonconnected political committees. First, FECA permits 

the sponsoring corporation or labor organization to 

pay the entire costs of the “establishment, administration, and solicitation of contributions” of the separate 

segregated fund. 52 U.S.C. 30118(b)(2)(C) (2 U.S.C. 

441b(b)(2)(C)); 11 C.F.R. 114.5(b). Such payments 

may be unlimited in amount and need not be reported 

to the FEC (as all payments to nonconnected political 

committees above certain threshold amounts must be). 

See 52 U.S.C. 30101(8)(B)(vi) and (9)(B)(v), 30104(b) 

(2 U.S.C. 431(8)(B)(vi) and (9)(B)(v), 434(b)); 

11 C.F.R. 114.5(e)(1). Second, FECA permits a separate segregated fund to solicit contributions only from 

certain persons affiliated with the corporation or labor 

organization that established the fund (and imposes 

some restrictions on the frequency and form of certain 

such solicitations). 52 U.S.C. 30118(b)(4)(A) (2 U.S.C. 

441b(b)(4)(A)); 11 C.F.R. 114.5(g)(1); see 52 U.S.C. 

30118(b)(3)(B)-(C) and (4)(B) (2 U.S.C. 441b(b)(3)(B)-

(C) and (4)(B)); 11 C.F.R. 114.6.

c. Although this Court has upheld the constitutionality of FECA’s ban on direct corporate political 

contributions, see FEC v. Beaumont, 539 U.S. 146, 149 

(2003), it has concluded that FECA’s ban on independent expenditures by corporations and labor organizations violates the First Amendment, see Citizens United v. FEC, 558 U.S. 310, 318-319 (2010). As 

a result, while separate segregated funds “have 

the advantage of being able to directly contribute to 

candidates—something parent corporations still cannot do—they are no longer necessary for independent 

expenditures.” Pet. App. 6a. The D.C. Circuit has 
5

thus described separate segregated funds as “functionally obsolete” and “a vintage—yet still operable—

relic” of a period in which Congress believed it had 

authority to ban all direct corporate financial participation in federal election campaigns. Id. at 4a, 6a.

Under current law, as interpreted and applied by 

the FEC and the courts, corporations and labor organizations may not only make unlimited expenditures 

on their own, but may also fund any amount of independent expenditures by nonconnected political committees. In EMILY’s List v. FEC, 581 F.3d 1 (2009),

the D.C. Circuit held that a nonconnected political 

committee may solicit and receive unlimited contributions for independent expenditures, so long as it separates any such independent-expenditure-only funds 

from funds that may be used for contributions to political candidates and political parties. Id. at 12; see id.

at 8 n.7 (explaining that holding did not apply to separate segregated funds). And in SpeechNow.org v.

FEC, 599 F.3d 686 (en banc), cert. denied, 131 S. Ct. 

553 (2010), the D.C. Circuit held that the $5000 limit 

on contributions by individuals to political committees 

cannot constitutionally be applied in the context of a 

nonconnected political committee that makes only 

independent expenditures. Id. at 696. The FEC has 

accordingly recognized that corporations and labor 

organizations may contribute unlimited amounts to 

nonconnected political committees, so long as those 

funds are used only for independent expenditures. 

Independent Expenditures and Electioneering Communications by Corporations and Labor Organizations, 79 Fed. Reg. 62,817 (Oct. 21, 2014); FEC Advisory Op. 2010-11, 2010 WL 3184269 (July 22, 2010). 

The FEC has also recognized that a corporation or 
6

labor organization may establish and administer an 

independent-expenditure-only political committee, 

which may solicit the general public for funding, so 

long as any contribution from the sponsoring corporation or labor organization to the political committee is

reported in the same manner as other funding. FEC 

Advisory Op. 2010-09, 2010 WL 3184267 (July 22, 

2010).

2. Petitioner Stop This Insanity, Inc. (STI) is a 

corporation that has established a separate segregated fund, petitioner Stop This Insanity Inc. Employee 

Leadership Fund (STI Fund). Pet. App. 4a. Petitioners would like STI Fund to be able to operate in some 

ways like a nonconnected political committee and in 

some ways like a separate segregated fund. Id. at 4a5a, 19a-20a. Under their preferred approach, STI 

Fund would operate like a nonconnected political 

committee by having separate bank accounts for its 

direct contributions and independent expenditures, 

with the ability to solicit and accept unlimited funds 

from any donor (not just donors affiliated with STI) to 

finance its independent expenditures. Id. at 19a-20a. 

At the same time, STI Fund would operate like a 

separate segregated fund by having the ability to 

receive unlimited operational funding from STI that 

need not be publicly disclosed. Id. at 20a. Petitioners

sought an advisory opinion from the FEC as to 

whether such an arrangement would be permissible, 

but the Commission was unable to approve an advisory opinion by the necessary number of votes. Id. at 

4a, 20a-21a.

STI and STI Fund—along with petitioner Glengary 

Inc., which wishes to donate in excess of the $5000 

statutory limit to support STI Fund’s independent 
7

expenditures—filed suit in district court against the 

FEC, seeking declaratory relief and an injunction 

permitting their proposed arrangement. Pet. App. 5a, 

15a-17a, 48a; see id. at 5a n.1 (discussing two individual plaintiffs who are not petitioners here). They 

alleged that the limits on donations to, and solicitations by, separate segregated funds violate the First 

Amendment, as applied to a distinct independentexpenditure-only account within a separate segregated fund. Id. at 15a-17a. The district court granted the 

FEC’s motion to dismiss. Id. at 5a; see id. at 15a-70a.

The court of appeals affirmed. Pet. App. 1a-14a. 

The court observed that STI itself can use its own 

treasury funds for “unlimited” independent expenditures, id. at 2a, 5a, and is “capable of sweeping solicitation,” including solicitation from the public at large 

for donations, id. at 13a. “And yet,” the court continued, “it wants a vehicle capable of soliciting without 

transparency.” Id. at 13a-14a. “Simply put,” the 

court explained, “Stop This Insanity would like to use 

its segregated fund to solicit the entire public while 

concealing its expenses for such solicitation,” by taking advantage of the special disclosure exemption that 

separate segregated funds enjoy with respect to operating expenses provided by their parent organization. 

Id. at 5a. Recognizing that this Court “has endorsed 

disclosure as ‘a particularly effective means of arming 

the voting public with information,’” the court of appeals concluded that the First Amendment “does not 

compel” the result advocated by petitioners. Id. at 

14a (quoting McCutcheon v. FEC, 134 S. Ct. 1434, 

1460 (2014) (plurality opinion)).

The court of appeals rejected petitioners’ argument 

that their position followed directly from this Court’s 
8

decision in Citizens United. Pet. App. 7a-10a. The 

court of appeals noted that Citizens United had 

acknowledged the existence of separate segregated 

funds without questioning the constitutionality of the 

statutory provisions by which those funds are regulated. Id. at 7a (citing Citizens United, 558 U.S. at 337-

339). The court also observed that, unlike the plaintiff 

in Citizens United, which had challenged FECA’s 

“outright ban” on political speech by corporations, 

ibid. (quoting Citizens United, 558 U.S. at 337), STI

was challenging “a snare it ha[d] fashioned for itself” 

by seeking to make independent expenditures through 

a separate segregated fund rather than directly. Id.

at 8a; see id. at 9a (“By clothing itself in the letter of 

Citizens United, [STI] claims there is a constitutional 

right to do things the hard way. We cannot sanction 

such an illogical conclusion.”). The court also disagreed with petitioners’ contention that Citizens United “eliminated distinctions between various organizational forms” so as to require that separate segregated funds have the same ability to solicit and accept 

contributions as nonconnected political committees. 

Id. at 9a (internal quotation marks omitted). Noting 

that nonconnected political committees are subject to

the “disclosure requirements” that petitioners “are 

endeavoring to avoid,” the court reasoned that “no 

political action committee has” the mix of advantages 

that petitioners “are looking for,” and that it would 

thus “be disingenuous to say [STI] is simply seeking 

equalization across different types of organizations.” 

Id. at 9a-10a.

The court of appeals also held that FECA’s treatment of separate segregated funds does not violate 

any separate First Amendment rights that STI Fund 
9

may possess. Pet. App. 10a-14a. The court initially 

questioned whether its “analysis should be so formalistic” as to “treat the Fund as if it existed in isolation.” 

Id. at 11a. Even assuming arguendo that complete 

analytical separation of the two entities was proper, 

however, the court held that the challenged restrictions were constitutional because the government 

had “demonstrated ‘a sufficiently important interest’ 

and ‘employ[ed] means closely drawn to avoid unnecessary abridgement of associational freedoms.’” Ibid.

(brackets in original) (quoting Buckley v. Valeo, 424 

U.S. 1, 25 (1976) (per curiam)). 

The court of appeals perceived it to be undisputed

that if disclosure of funding sources in this context is

an important governmental interest, Congress can

validly require entities to choose between classification as a nonconnected political committee (which has 

fewer solicitation and contribution restrictions, but 

more disclosure requirements) and classification as a 

separate segregated fund (which has more solicitation 

and contribution restrictions, but fewer disclosure 

requirements). Pet. App. 10a-14a. The court disagreed with petitioners’ assertion that the government 

can never have a substantial interest in requiring 

disclosure in this context. Id. at 11a. The court of 

appeals observed that, under this Court’s decisions,

nondisclosure can at least sometimes be “appropriately included within the anticorruption rationale” that

generally justifies campaign-finance regulation. Id. at 

12a-13a (citing, inter alia, McCutcheon, 134 S. Ct. at 

1459 (plurality opinion), and Citizens United, 558 U.S. 

at 367). 

Judge Sentelle concurred in the judgment without 

a separate opinion. Pet. App. 2a.
10

ARGUMENT

The court of appeals correctly rejected petitioners’ 

contention that the First Amendment entitles STI 

Fund to simultaneously enjoy both the advantages of 

a nonconnected political committee (which may solicit 

and accept funds from the general public for independent expenditures) and the advantages of a separate segregated fund (which may receive unlimited 

operational funding from its parent without disclosing 

that funding). 2 The decision below does not conflict 

with any decision of this Court or of any other court of 

appeals. Further review is not warranted.

1. Petitioners do not meaningfully challenge the 

court of appeals’ conclusion that STI’s own First 

Amendment rights are not violated by FECA’s restrictions on separate segregated funds’ solicitation 

and acceptance of donations. See Pet. App. 6a-10a. 

Under this Court’s decision in Citizens United v. 

FEC, 558 U.S. 310 (2010), STI itself may solicit unlimited donations for independent expenditures and fund 

unlimited independent expenditures from its general 

treasury funds, regardless of any limitations imposed 

on separate segregated funds. Id. at 318-319; see Pet. 

 2 The petition expresses (Pet. 24 & n.15) uncertainty as to 

whether, if petitioners’ position were accepted, STI’s payments for 

STI Fund’s solicitation costs would in fact be exempt from disclosure under FECA. The court of appeals, however, understood 

petitioners to be seeking such an exemption. See, e.g., Pet. App. 

13a-14a (explaining that petitioners “want[] a vehicle capable of 

soliciting without transparency”). And such an exemption would 

be the unavoidable consequence of petitioners’ position, because 

FECA explicitly excludes from the definition of contribution “the 

establishment, administration, and solicitation of contributions to 

a separate segregated fund.” 52 U.S.C. 30118(b)(2)(C) (2 U.S.C. 

441b((b)(2)(C)) (emphasis added).
11

App. 2a, 5a, 8a, 13a-14a. Petitioners identify no authority for the proposition that establishment of a 

separate segregated fund is necessary to effectuate 

STI’s own First Amendment right to make independent expenditures. Nor do they argue that limitations 

on solicitations and expenditures by a separate segregated fund—a type of entity created by Congress to 

provide an alternative to then-banned direct corporate expenditures, id. at 6a—function as limitations on 

the sponsoring organization’s own political speech. 

Petitioners also do not argue that any limitations on 

solicitations and contributions by separate segregated 

funds infringe the First Amendment rights of Glengary, which can make unlimited independent expenditures from its own treasury.

Petitioners instead contend that such limitations 

violate the First Amendment rights of STI Fund. 

They frame the primary question presented in this 

case as whether a “political committee * * * has a 

First Amendment right to engage in unrestricted 

[independent-expenditure] activities” if it avoids intermingling independent-expenditure funds with 

funds it may use for direct political contributions. 

Pet. i. Neither the court below nor the FEC, however, 

prohibits political committees from engaging in such 

activities in that circumstance. So long as a political 

committee operates as a nonconnected political committee—as STI Fund is free to do—it may solicit and 

accept donations into an independent-expenditureonly account without limitation.3

 See EMILY’s List v. 

 3

 Petitioners are therefore incorrect in asserting (Pet. 3) that 

“[e]ven if” STI Fund “was to eschew the narrow disclosure exemption it receives, and announce every penny its connected organiza-
12

FEC, 581 F.3d 1, 9 (D.C. Cir. 2009); 79 Fed. Reg. at 

62,817; FEC Advisory Op. 2010-11; FEC Advisory Op. 

2010-09; pp. 5-6, supra; see also SpeechNow.org v.

FEC, 599 F.3d 686, 696 (D.C. Cir.) (en banc), cert. 

denied, 131 S. Ct. 553 (2010) (concluding that individuals may make unlimited donations to political committees for independent expenditures).

Petitioners correctly note (Pet. 20-25) that if STI 

Fund registered as a nonconnected political committee, it would be required to publicly disclose any operational funding it receives from STI, because it would 

no longer be eligible for the disclosure exemption that 

FECA grants in the context of a parent organization’s 

subsidization of a separate segregated fund. But 

petitioners fail to establish that STI Fund has a First 

Amendment right to that disclosure exemption. The 

court of appeals understood petitioners’ sole argument 

on that issue to be that the government has no valid 

interest in requiring disclosures when the only political activities at issue are independent expenditures. 

Pet. App. 10a-14a. The court correctly rejected that 

contention. Ibid. 

This Court has recognized that a disclosure requirement “‘impose[s] no ceiling on campaign-related 

activities,’” “‘do[es] not prevent anyone from speaking,’” and is constitutional so long as there is a “‘substantial relation’ between the disclosure requirement 

and a ‘sufficiently important’ governmental interest.” 

Citizens United, 558 U.S. at 366-367 (quoting Buckley

v. Valeo, 424 U.S. 1, 64, 66 (1976) (per curiam), and 

McConnell v. FEC, 540 U.S. 93, 201 (2003)). The 

Court has also explained that a disclosure require-

 

tion, [STI], gives it,” it “still could not form [a] separate account” 

for independent expenditures. 
13

ment can “be justified based on a governmental interest in ‘providing the electorate with information’ about 

the sources of election-related spending.” Id. at 367

(quoting Buckley, 424 U.S. at 66) (brackets omitted); 

see McCutcheon v. FEC, 134 S. Ct. 1434, 1459 (2014) 

(plurality opinion) (same). And in Citizens United,

the Court upheld the application of FECA’s disclosure 

requirements in a context involving independent expenditures. 558 U.S. at 367-371 (rejecting First 

Amendment challenge to disclosure requirements as 

applied in the context of a political movie).

2. Petitioners assert (Pet. 13-20) that the ruling

below conflicts with decisions of the Fifth and Tenth

Circuits. No such conflict exists. Neither of those 

decisions addressed the constitutionality of FECA’s 

regulation of separate segregated funds, and neither 

suggests that another circuit would have decided this 

case differently.4 

In Catholic Leadership Coalition v. Reisman, 764 

F.3d 409 (2014), the Fifth Circuit addressed a Texas 

statute that regulated “general-purpose political 

committees,” a type of nonconnected political committee recognized under state law. Id. at 413-414. The 

court found that the State’s regulatory scheme was 

unconstitutional insofar as it prohibited a committee 

from making more than $500 in contributions or expenditures until (1) 60 days had passed following the 

appointment of a treasurer and (2) the committee had 

received donations from at least ten different contrib-

 4

 The same is true of other circuit-court decisions cited by petitioners’ amicus, which the amicus recognizes to be in accord with 

the D.C. Circuit’s own precedents concerning independent expenditures by nonconnected political committees. See Coolidge-Reagan 

Found. Amicus Br. 8-10 & n.5. 
14

utors. Id. at 416-417, 426-437. Both the type of committee and the campaign-finance restrictions involved 

in Catholic Leadership Coalition were different from 

those at issue here. Indeed, the Fifth Circuit distinguished the D.C. Circuit’s decision in this case by

explaining that “there are fundamental differences 

between federal law’s regulation of separate segregated funds and Texas’s regulation of general-purpose 

committees.” Id. at 431 n.28. 

In Republican Party v. King, 741 F.3d 1089 (2013)

(RPNM), the Tenth Circuit affirmed a preliminary 

injunction against the enforcement of a New Mexico 

law that prohibited political committees (as defined 

under state law) from soliciting and accepting unlimited donations for the purpose of making independent 

expenditures. Id. at 1090-1103. The Tenth Circuit 

found the D.C. Circuit’s decision in EMILY’s List—

which had similarly held that a political committee 

under federal law could solicit and accept unlimited 

donations for independent expenditures so long as it

maintained a separate independent-expenditure-only 

account, 581 F.3d at 12—to be “instructive.” RPNM, 

741 F.3d at 1097; see ibid. (noting that the committees 

at issue in RPNM were “similarly situated” to the 

ones at issue in EMILY’s List). The Tenth Circuit did 

express some disagreement with the district court’s

reasoning in this case. Id. at 1100-1101. That disagreement was premised, however, on the erroneous 

belief that the district court’s decision in this case was 

applicable to all political committees (and thus was 

inconsistent with the D.C. Circuit’s own decision in 

EMILY’s List), rather than just separate segregated 

funds. Ibid. The Tenth Circuit had no occasion to 

consider the D.C. Circuit’s own later decision in this 
15

case, which reaffirmed EMILY’s List and clarified

that the issue in this case is specific to separate segregated funds. See Pet. App. 9a-10a.5

3. Contrary to petitioners’ contention (Pet. 32-34), 

this case does not present a question of exceptional 

importance that would warrant this Court’s review. 

With respect to independent expenditures, separate 

segregated funds are “a vintage—yet still operable—

relic” of the pre-Citizens United legal regime. Pet. 

App. 6a; see Catholic Leadership Coal., 764 F.3d at 

431 n.28 (describing separate segregated funds as “a 

vestigial surplusage no longer necessary and/or needed for corporations to engage in independent expenditures”). Although a number of separate segregated 

funds still exist, limitations on their activities do not 

pose any practical impediments to independent ex-

 5

 The other two circuit-court decisions cited by petitioners (one 

of which is unpublished) likewise do not conflict with the court of 

appeals’ decision here. Those decisions did not address separate 

segregated funds under FECA; the cases involved constitutional 

challenges to state laws rather than to any FECA provision; and 

the courts declined to find the challenged laws unconstitutional as 

applied. See Vermont Right to Life Comm., Inc. v. Sorrell, 758 

F.3d 118, 122, 141, 143-144 & n.23 (2d Cir. 2014) (recognizing that 

the existence of a separate bank account for independent expenditures “may be relevant” to the constitutionality of limits on donations to a political committee, but upholding the application of such 

limits where a “‘fluidity of funds’” between two assertedly separate accounts showed that they “were not kept sufficiently separate”), petition for cert. pending, No. 14-380 (filed Sept. 29, 2014); 

Alabama Democratic Conference v. Broussard, 541 Fed. Appx. 

931, 932, 936-937 (11th Cir. 2013) (per curiam) (finding that the 

existence of material disputes of fact precluded judgment as a 

matter of law for the plaintiffs in an as-applied First Amendment 

challenge to a state law barring transfers from one political committee to another). 
16

penditures. Any person (or entity) that wishes to 

make independent expenditures is free to do so in his 

(or its) own name. Any person (or entity) is also free 

to establish a nonconnected political committee that 

may solicit and accept unlimited amounts, from any 

donor, for independent expenditures. And any existing separate segregated fund may convert itself to a 

nonconnected political committee, which will effectively remove the limitations on soliciting and accepting 

donations for independent-expenditure activities. 

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted. 

LISA J. STEVENSON

Deputy General Counsel

KEVIN DEELEY

Acting Associate General 

Counsel

ERIN CHLOPAK

Acting Assistant General 

Counsel

STEVE N. HAJJAR

Attorney

Federal Election Commission

DONALD B. VERRILLI, JR. Solicitor General

DECEMBER 2014