ORAL ARGUMENT REQUESTED 

No. 12-8078 

_______________________________________________ 

UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_______________________________________________ 

FREE SPEECH,

Appellant, 

v. 

FEDERAL ELECTION COMMISSION, 

Appellee. 

_______________________________________________ 

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF WYOMING 

(JUDGE SCOTT W. SKAVDAHL) 

_______________________________________________ 

BRIEF FOR APPELLEE FEDERAL ELECTION COMMISSION 

_______________________________________________ 

ANTHONY HERMAN 

General Counsel 

 

LISA J. STEVENSON 

Deputy General Counsel – Law 

DAVID KOLKER 

Associate General Counsel 

 ADAV NOTI 

 Acting Assistant General Counsel 

 ERIN CHLOPAK 

Attorney 

Federal Election Commission 

999 E Street, N.W. 

 Washington, D.C. 20463 

February 4, 2013 (202) 694-1650 

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TABLE OF CONTENTS 

Page 

STATEMENT OF RELATED CASES .............................................................. xi 

GLOSSARY ........................................................................................................ xi 

COUNTERSTATEMENT OF JURISDICTION ................................................ 1 

COUNTERSTATEMENT OF THE ISSUES ...................................................... 1 

COUNTERSTATEMENT OF THE CASE ......................................................... 1 

COUNTERSTATEMENT OF FACTS ............................................................... 2 

I. STATUTORY AND REGULATORY BACKGROUND ........................ 2 

 

A. Express Advocacy and Electioneering Communications ............... 2 

B. Political Committee Status .............................................................. 6 

1. Organizational and Reporting Requirements; 

 Contribution Limits ............................................................... 7 

2. The Major-Purpose Test ....................................................... 9 

C. Solicitation of Contributions ......................................................... 10 

II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY .......... 12 

COUNTERSTATEMENT OF STANDARD OF REVIEW ............................. 15 

SUMMARY OF ARGUMENT ......................................................................... 16 

 

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ARGUMENT ..................................................................................................... 18 

I. LEGAL STANDARDS ........................................................................... 18 

A. A Preliminary Injunction that Alters the Status Quo Is an 

Extraordinary and Disfavored Remedy that Requires Free Speech 

 to Meet a Heavy Burden ................................................................ 18 

B. Constitutional Standards ............................................................... 21 

1. Disclaimer and Disclosure Requirements Are Subject to 

Intermediate Scrutiny.. ........................................................ 21 

2. Free Speech’s Burden for Its Facial Challenges ................. 24 

II. FREE SPEECH CANNOT SHOW THAT IT IS LIKELY TO 

 PREVAIL ON THE MERITS OF ITS CLAIMS .................................... 25 

A. Section 100.22(b) Is Constitutional ............................................... 25 

1. Section 100.22(b) Is Not Unconstitutionally Vague ........... 26 

 

a. The Regulation Is Consistent with WRTL’s 

Definition of the Functional Equivalent of 

Express Advocacy .................................................... 26 

b. Disagreements About the Application of Section 

100.22(b) Do Not Demonstrate Unconstitutional 

Vagueness ................................................................. 29 

2. Section 100.22(b) Is Not Overbroad ................................... 31 

3. Free Speech’s Mischaracterizations of the Commission’s 

Enforcement Matters Fail to Demonstrate Any Flaw in 

 Section 100.22(b) ............................................................... 37 

4. Section 100.22(b) Is Within the Commission’s Authority 

 and Consistent with Congressional Intent ......................... 39 

B. PAC Status Entails Constitutional Disclosure Requirements, Not 

Spending Limits, and the Commission’s Method of Determining 

Such Status Is Constitutional ......................................................... 40 

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1. FECA’s Reporting Requirements for PACs Are 

Constitutional ...................................................................... 40 

2. The Commission’s Method of Determining a Group’s 

Major Purpose Is Constitutional ........................................ 45 

C. The Commission’s Solicitation Standard Is Constitutional .......... 52 

D. No Provision or Policy at Issue in his Case Imposes a “Prior 

Restraint” on Speech ..................................................................... 55 

III. FREE SPEECH FAILS TO DEMONSTRATE IRREPARABLE 

HARM ..................................................................................................... 56 

IV. THE BALANCE OF HARMS FAVORS THE COMMISSION, AND 

AN INJUNCTION WOULD BE ADVERSE TO THE PUBLIC 

INTEREST .............................................................................................. 58 

CONCLUSION .................................................................................................. 60 

 

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TABLE OF AUTHORITIES 

Page 

Cases 

Ad Hoc Metals Coalition v. Whitman, 227 F. Supp. 2d 134 (D.D.C. 2002) .... 38 

Am. Constitutional Law Found. v. Meyer, 120 F.3d 1092 

 (10th Cir. 1997) (“ACLF”), aff’d sub nom., Buckley v. Am. Constitutional 

 Law Found., 525 U.S. 182 (1999) ......................................................... 50, 51 

Anderson v. Spear, 356 F.3d 651 (6th Cir. 2004) ............................................. 37 

Ashcroft v. ACLU, 542 U.S. 656 (2004) ........................................................... 20

Awad v. Ziriax, 670 F.3d 1111 (10th Cir. 2012) ................................................ 20 

Beltronics USA, Inc. v. Midwest Inventory Distrib., LLC, 

 562 F.3d 1067 (10th Cir. 2009) .................................................................... 18 

Brown v. Socialist Workers ’74 Campaign Comm., 459 U.S 87 (1982) .......... 57 

Buckley v. Valeo, 424 U.S. 1 (1976) ...................................................... 27, 41, 57 

Ctr. for Individual Freedom v. Carmouche, 449 F.3d 655 (5th Cir. 2006) ...... 37 

Ctr. for Individ. Freedom v. Madigan, 697 F.3d 464 (7th Cir. 2012) .. 35, 41, 42 

Ctr. for Individual Freedom, Inc. v. Tennant, No. 11-1952, --- F.3d ---, 

 2013 WL 208912 (4th Cir. Jan. 18, 2013) ........................................ 27, 34-35 

Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 

 467 U.S. 837 (1984) ............................................................................... 39, 40 

Citizens United v. FEC, 130 S. Ct. 876 (2010) .......................................... passim 

Colo. Right to Life Comm., Inc. v. Coffman, 

 498 F.3d 1137 (10th Cir. 2007) ............................................................. 24, 49 

Doe v. Reed, 130 S. Ct. 2811 (2010) .................................................... 23, 34, 51 

 

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Deukmejian v. Nuclear Regulatory Comm’n, 751 F.2d 1287 (D.C. Cir. 1984), 

 aff’d in relevant part sub nom., San Luis Obispo Mothers for Peace v. 

 U.S. Nuclear Regulatory Comm’n, 789 F.2d 26 (D.C Cir. 1986) 

 (en banc) ....................................................................................................... 38 

Elrod v. Burns, 427 U.S. 347 (1976) ................................................................ 56 

EMILY’s List v. FEC, 581 F.3d 1 (D.C. Cir. 2009) ..................................... 53, 54 

FEC v. GOPAC, Inc., 917 F. Supp. 851 (D.D.C. 1996) .................................... 48 

FEC v. Malenick, 310 F. Supp. 2d 230 (D.D.C. 2004) ...................................... 48 

FEC v. Mass. Citizens for Life, Inc., 479 U.S. 238 (1986) (“MCFL”) .......... 9, 43 

FEC v. Survival Educ. Fund, Inc., 65 F.3d 285 (2d Cir. 1995) (“SEF”) ..... 11, 52 

FEC v. Wis. Right to Life, Inc., 551 U.S. 449 (2007) (“WRTL”) ................ passim 

First Nat’l Bank of Bos. v. Bellotti, 436 U.S. 765 (1978) ........................... 34, 51 

Florida v. Jimeno, 500 U.S. 248 (1991) ........................................................... 27 

Fundamentalist Church of Jesus Christ of Latter-Day Saints v. Horne, 

 698 F.3d 1295 (10th Cir. 2012) ................................................................... 15 

Grayned v. City of Rockford, 408 U.S. 104 (1972) ........................................... 25 

Human Life of Wash. Inc. v. Brumsickle, 624 F.3d 990 (9th Cir. 2010), 

cert. denied, 131 S. Ct. 1477 (2011) ..................................... 22, 35, 41, 42, 59

Iowa Right to Life Comm., Inc. v. Smithson, 750 F. Supp. 2d 1020 

(S.D. Iowa 2010) ..................................................................................... 19, 59 

Iowa Right to Life Comm., Inc. v. Tooker, 795 F. Supp. 2d 852 

 (S.D. Iowa 2011) ..................................................................................... 24, 57 

Koerber v. FEC, 583 F. Supp. 2d 740 (E.D.N.C. 2008) .................................... 48 

McConnell v. FEC, 540 U.S. 93 (2003) ......................................... 3, 5, 32, 57, 58

Minnesota Citizens Concerned for Life v. Swanson, 692 F.3d 864 

 (8th Cir. 2012) (en banc) ............................................................................. 42 

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Nat’l Ass’n of Mfrs. v. Taylor, 549 F. Supp. 2d 68 (D.D.C. 2008) ............. 57-58

Nat’l Org. for Marriage v. McKee, 649 F.3d 34 (1st Cir. 2011), 

cert. denied, 132 S. Ct. 1635 (2012) ...................................................... passim 

Nat’l Org. for Marriage v. Sec’y, State of Fla., 

 477 F. App’x 584 (11th Cir. 2012) ......................................................... 22, 35 

N.M. Youth Organized v. Herrera, 611 F.3d 669 

 (10th Cir. 2010) ..................................................................... 22, 36, 41, 42, 49 

North Carolina Right to Life v. Leake, 525 F.3d 274 (4th Cir. 2008) .............. 47 

Northern Natural Gas Co. v. L.D. Drilling, Inc., 

 697 F.3d 1259 (10th Cir. 2012) ................................................. 15, 18, 19, 59 

O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 

 389 F.3d 973 (10th Cir. 2004) ..................................................................... 21 

Purcell v. Gonzalez, 549 U.S. 1 (2006) ....................................................... 19, 59 

Real Truth About Abortion, Inc. f/k/a Real Truth About Obama, Inc. v. FEC, 

681 F.3d 544 (4th Cir. 2012), cert. denied, No. 12-311, --- S. Ct. ---, 

 2013 WL 57574 (Jan. 7, 2013) (“RTAA”) ............................................. passim 

Real Truth About Obama, Inc. v. FEC, 796 F. Supp. 2d 736, 749-50 

(E.D.Va. 2011) (“RTAO”), aff’d, Real Truth About Abortion, Inc., 

 681 F.3d 544 (4th Cir. 2012) ........................................................................ 31 

Sampson v. Buescher, 625 F.3d 1247 (10th Cir. 2010) .................................... 50 

Schrier v. Univ. of Colo., 427 F.3d 1253 (10th Cir. 2005) ............................... 57 

Serono Laboratories, Inc. v. Shalala, 158 F.3d 1313 (D.C. Cir. 1998) ............ 38 

Shays v. FEC, 511 F. Supp. 2d 19 (D.D.C. 2007) ................................. 10, 45, 46 

SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir. 2010) (en banc), 

cert. denied, 131 S. Ct. 553 (2010) ......................................... 8, 22, 41, 42, 44 

Turner Broad. Sys., Inc. v. FCC, 507 U.S. 1301 (1993) 

 (Rehnquist, C.J., in chambers) ...................................................................... 19 

United States v. Friday, 525 F.3d 938 (10th Cir. 2008) ................................... 23 

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United States v. Harriss, 347 U.S. 612 (1954) ................................................. 34 

United States v. Stevens, 130 S. Ct. 1577 (2010) ............................................. 23 

United States v. Williams, 553 U.S. 285 (2008) .......................................... 24, 29 

United States v. Wurzbach, 280 U.S. 396 (1930) .............................................. 29 

Unity08 v. FEC, 596 F.3d 861 (D.C. Cir. 2010) ............................................... 47 

Univ. of Tex. v. Camenisch, 451 U.S. 390 (1981) ............................................. 18 

Walters v. Nat’l Ass’n of Radiation Survivors, 468 U.S. 1323 (1984) 

 (Rehnquist, J., in chambers).................................................................... 20, 58 

Winter v. Natural Res. Def. Council, Inc., 129 S. Ct. 365 (2008) ............... 18, 20 

Wyatt v. Cole, 504 U.S. 158 (1992) ................................................................... 27 

Yamada v. Weaver, 872 F. Supp. 2d 1023 (D. Haw. 2012) .............................. 42 

Statutes and Regulations 

Administrative Procedure Act, 5 U.S.C. §§ 701-06 .......................................... 10 

Bipartisan Campaign Reform Act, Pub. L. No. 107-155, § 212(a), 

 116 Stat. 81 (2002) (“BCRA”) ....................................................................... 4 

BCRA § 201(a), 116 Stat. 89 ............................................................................. 40 

Federal Election Campaign Act of 1971, 2 U.S.C. §§ 431-57 (“FECA”) .......... 2 

FECA Amendments of 1976, Pub. L. No. 94-283, § 102(g)(3), 

 90 Stat. 475, 479 (1976) .............................................................................. 2, 3 

FECA Amendments of 1979, Pub. L. No. 96-187, § 111, 

 93 Stat. 1339 (1980) ..................................................................................... 11 

2 U.S.C. § 431(4)(A) ............................................................................... 6, 41, 46 

2 U.S.C. § 431(8)(A)(i) ...................................................................................... 11 

2 U.S.C. § 431(9)(A)(i) ........................................................................................ 2 

2 U.S.C. § 431(17) .................................................................................... 1, 3, 39 

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2 U.S.C. § 432(a)-(d) .......................................................................................... 7 

2 U.S.C. § 433 .................................................................................................... 7 

2 U.S.C. § 434 ............................................................................................... 7, 41 

2 U.S.C. § 434(b)(4)(H)(iii) ................................................................................. 7 

2 U.S.C. § 434(b)(6)(B)(iii) ................................................................................. 7 

2 U.S.C. § 434(c) ................................................................................................ 4 

2 U.S.C. § 434(f) ............................................................................................... 32 

2 U.S.C. § 434(f)(1)-(2) ....................................................................................... 5 

2 U.S.C. § 434(f)(3)(A)(i) ................................................................................... 4 

2 U.S.C. 434(f)(3)(A)(ii) ................................................................................... 40 

2 U.S.C. § 437c .................................................................................................. 12 

2 U.S.C. § 437c(c) ............................................................................................. 14 

2 U.S.C. § 437d(a)(7) ......................................................................................... 14 

2 U.S.C. § 437d(a)(8) ........................................................................................... 3 

2 U.S.C. § 438(a)(8) ........................................................................................... 40 

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

2 U.S.C. § 441b .................................................................................................. 25 

2 U.S.C. § 441b(a) .......................................................................................... 2, 8 

2 U.S.C. § 441b(b)(2) .......................................................................................... 4 

2 U.S.C. § 441d(a) ................................................................................... 1, 11, 52 

2 U.S.C. § 441d(a)(3) ......................................................................................... 11 

26 U.S.C. § 527 .................................................................................................... 9 

28 U.S.C. § 1331 .................................................................................................. 1 

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28 U.S.C. § 1292(a)(1) ......................................................................................... 1 

11 C.F.R. § 109.10(e) .......................................................................................... 4 

11 C.F.R. § 100.22 ........................................................................................ 3, 25 

11 C.F.R. § 100.22(a) .......................................................................................... 3 

11 C.F.R. § 100.22(b) ............................................................................... 1, 3, 26 

11 C.F.R. § 100.52(a) ........................................................................................ 11 

11 C.F.R. § 110.11(a)(1) .................................................................................... 8 

11 C.F.R. § 110.11(a)(3) .................................................................................... 11 

Miscellaneous 

Committee Report Summary, 

http://www.fec.gov/data/CampaignAndCommitteeSummary.do?format=html&e

lection_yr=2012 (last visited Feb. 4, 2013) ............................................ 44-45 

Detailed Files About Candidates, Parties and Other Committees; 2011-2012 

Committee Master File, http://www.fec.gov/finance/disclosure/ftpdet.shtml 

(last visited Feb. 4, 2013) ............................................................................. 44 

FEC, Express Advocacy; Independent Expenditures; Corporate and Labor 

Organization Expenditures, 60 Fed. Reg. 35,292 (July 6, 1995) ........... 27, 38 

FEC, Political Committee Status, 69 Fed. Reg. 11,736 (Mar. 11, 2004) .......... 9 

FEC, Supplemental Explanation and Justification for the Regulations on 

Political Committee Status, 72 Fed. Reg. 5,595 (Feb. 7, 2007) ....... 9, 10, 45, 46 

In the Matter of American Leadership Project, MUR 5977, Certification 

(Feb. 25, 2009), available at 

http://eqs.nictusa.com/eqsdocsMUR/29044231595.pdf  

 (last visited Feb. 4, 2013)............................................................................. 46 

In the Matter of Free Speech, Advisory Opinion 2012-11, Certification 

(May 8, 2012), available at http://saos.nictusa.com/aodocs/1209338.pdf 

(last visited Feb. 4, 2013).............................................................................. 13 

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New Statements of Organization, 

http://www.fec.gov/press/press2011/new_form1dt.shtml (last visited Feb. 4, 

2013) ............................................................................................................ 44 

Press Release, FEC Statement on the D.C. Circuit Court of Appeals Decision 

 in EMILY’s List v. FEC, http://www.fec.gov/press/press2010/20100112 

EmilyList.shtml (Jan. 12, 2010) .................................................................. 54 

 

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STATEMENT OF RELATED CASES 

There are no prior or related appeals to this case. 

GLOSSARY 

BCRA Bipartisan Campaign Reform Act 

Commission Federal Election Commission 

FECA Federal Election Campaign Act 

MUR Matter Under Review 

PAC Political Committee 

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COUNTERSTATEMENT OF JURISDICTION 

The district court had jurisdiction over this action pursuant to 28 U.S.C. 

§ 1331. This Court has jurisdiction pursuant to 28 U.S.C. § 1292(a)(1) over the 

interlocutory appeal of the district court’s denial of appellant Free Speech’s motion 

for a preliminary injunction. The district court denied that motion in its October 3, 

2012 Oral Ruling on Plaintiff’s Motion for Preliminary Injunction. (App. 468-92.) 

Free Speech filed a notice of appeal on October 19, 2012. (App. 501-03.) 

COUNTERSTATEMENT OF THE ISSUES 

Whether the district court abused its discretion in declining to preliminarily 

enjoin the Federal Election Commission from enforcing: (1) a Commission 

regulation, 11 C.F.R. § 100.22(b), that defines the statutory term “expressly 

advocating,” 2 U.S.C. § 431(17); (2) the Commission’s method of determining 

whether an entity is a “political committee,” including the Commission’s method 

of determining an entity’s “major purpose”; and (3) the Commission’s method of 

determining whether a request for donations is a regulable “solicitation” for 

“contributions” under 2 U.S.C. § 441d(a). 

COUNTERSTATEMENT OF THE CASE 

This case presents constitutional challenges to a regulation and two 

Commission policies that govern federal election campaign activity and facilitate 

campaign-related public disclosures. At the peak of the 2012 election season, Free 

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Speech sought a preliminary injunction to prevent the Commission from enforcing 

the challenged regulation and policies on their face and as applied to Free Speech. 

The district court denied Free Speech’s preliminary-injunction motion on October 

3, 2012, holding that Free Speech was unlikely to prevail on the merits of its 

challenges. Free Speech appealed and filed motions for injunctions pending appeal 

in the district court and this Court, both of which were denied. 

COUNTERSTATEMENT OF FACTS 

I. STATUTORY AND REGULATORY BACKGROUND 

A. Express Advocacy and Electioneering Communications 

Before the Supreme Court’s decision in Citizens United v. FEC, 130 S. Ct. 

876 (2010), the Federal Election Campaign Act (“FECA”) prohibited corporations 

and labor unions from making “expenditures.” 2 U.S.C. §§ 431(9)(A)(i), 441b(a). 

To preserve the original statutory definition of an independent “expenditure” from 

“invalidation on vagueness grounds,” the Supreme Court in Buckley v. Valeo,

construed the definition “to apply only to expenditures for communications that in 

express terms advocate the election or defeat of a clearly identified candidate for 

federal office.” 424 U.S. 1, 44 (1976). Congress then amended FECA to reflect 

Buckley’s construction by defining an “independent expenditure” as a 

communication “expressly advocating the election or defeat of a clearly identified 

candidate” and not made by or in coordination with a candidate or political party. 

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See FECA Amendments of 1976, Pub. L. No. 94-283, § 102(g)(3), 90 Stat. 475, 

479 (1976) (codified at 2 U.S.C. § 431(17)). 

Exercising its authority “to make . . . such rules . . . as are necessary to carry 

out the provisions of [the] Act,” 2 U.S.C. § 437d(a)(8), the Commission in 1995 

promulgated 11 C.F.R. § 100.22, which defines the statutory term “expressly 

advocating.” Part (a) of the regulation includes communications that use phrases 

— such as “vote for” or “reject” — “which in context can have no other reasonable 

meaning than to urge the election or defeat” of a candidate. 11 C.F.R. § 100.22(a). 

This is sometimes referred to as “magic words” express advocacy. See McConnell 

v. FEC, 540 U.S. 93, 126 (2003) (citing Buckley, 424 U.S. at 44 n.52), overruled in 

part, Citizens United, 130 S. Ct. at 913. Part (b) defines express advocacy as a 

communication that has an unambiguous “electoral portion” as to which 

“[r]easonable minds could not differ [that] it encourages actions to elect or defeat 

one or more clearly identified candidate(s).” 11 C.F.R. § 100.22(b).1

 A person or 

                                                           

1

 Section 100.22(b) defines as express advocacy as a communication that: 

When taken as a whole and with limited reference to external 

events, such as the proximity to the election, could only be 

interpreted by a reasonable person as containing advocacy of 

the election or defeat of one or more clearly identified 

candidate(s) because— 

(1) The electoral portion of the communication is 

unmistakable, unambiguous, and suggestive of only one 

meaning; and 

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entity that finances independent expenditures aggregating more than $250 must file 

with the Commission a disclosure report that identifies, inter alia, the date and 

amount of each expenditure and anyone who contributed over $200 to further it. 

See 2 U.S.C. § 434(c); 11 C.F.R. § 109.10(e). 

In 2002, Congress passed the Bipartisan Campaign Reform Act (“BCRA”), 

which introduced new financing and disclosure requirements for “electioneering 

communications.” Pub. L. No. 107-155, § 212(a), 116 Stat. 81 (2002). BCRA 

prohibited corporations and unions from making any “direct or indirect payment 

. . . for any applicable electioneering communication,” 2 U.S.C. § 441b(b)(2), 

which is defined in the context of a presidential election as a “broadcast, cable, or 

satellite communication” that (a) refers to a clearly identified presidential 

candidate, and (b) is made within 60 days before the general election or 30 days 

before a primary election or convention. 2 U.S.C. § 434(f)(3)(A)(i). BCRA also 

mandated disclosure for electioneering communications, including a requirement 

that every person who makes disbursements to produce or broadcast electioneering 

communications aggregating in excess of $10,000 during a calendar year must file 

within 24 hours of meeting that threshold a statement that identifies the maker, 

amount, and recipient of each such disbursement over $200, as well as information 

                                                                                                                                                                                               

(2) Reasonable minds could not differ as to whether it 

encourages actions to elect or defeat one or more clearly 

identified candidiate(s) or encourages some other kind of 

action.

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about donors who contributed to the person making the disbursements. 2 U.S.C. 

§ 434(f)(1)-(2). 

The Supreme Court initially upheld the constitutionality of the financing 

restriction for electioneering communications “to the extent that the issue ads . . . 

are the functional equivalent of express advocacy.” McConnell, 540 U.S. at 189-

94, 203-08 (quotation at 206). Later, in FEC v. Wisconsin Right to Life, Inc.

(“WRTL”), the Chief Justice’s controlling opinion defined “the functional 

equivalent of express advocacy” as a communication that is “susceptible of no 

reasonable interpretation other than as an appeal to vote for or against a specific 

candidate.” 551 U.S. 449, 469-70 (2007). 

Ultimately, in Citizens United, the Court held unconstitutional both BCRA’s 

ban on corporate financing of electioneering communications and FECA’s ban on 

corporate financing of independent expenditures. 130 S. Ct. at 913. But eight 

Justices upheld BCRA’s disclosure requirements for electioneering 

communications, even for communications that are not the functional equivalent of 

express advocacy. 130 S. Ct. at 914-15. The Court recognized that “[d]isclaimer 

and disclosure requirements may burden the ability to speak, but they ‘impose no 

ceiling on campaign-related activities.’” Id. at 914 (quoting Buckley, 424 U.S. at 

64). The Court thus declined to review such disclosure requirements through the 

lens of strict scrutiny and instead “subjected these requirements to ‘exacting 

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scrutiny,’ which requires ‘a substantial relation’ between the disclosure 

requirement and a ‘sufficiently important’ governmental interest.” Id. (quoting 

Buckley, 424 U.S. at 64, 66). The Court also explained that disclosure is “less 

restrictive” than a limit on spending, and that the public has an interest in knowing 

who is responsible for pre-election communications that speak about candidates, 

even if the ads do not advocate for or against them. Id. at 915-16. 

Because Citizens United struck down the ban on corporate independent 

expenditures in 2 U.S.C. § 441b as unconstitutional, the Commission’s regulatory 

definition of express advocacy in 11 C.F.R. § 100.22, which had helped to 

implement that ban, no longer operates to restrict such corporate speech. It does, 

however, continue to trigger FECA’s disclosure obligations for express candidate 

advocacy. 

B. Political Committee Status 

The statutory definition of a “political committee” — commonly known as a 

“PAC” — includes any “association[ ] or other group of persons which receives 

contributions aggregating in excess of $1,000 during a calendar year or which 

makes expenditures aggregating in excess of $1,000 during a calendar year.” 

2 U.S.C. § 431(4)(A). In Buckley, however, the Supreme Court narrowed this 

statutory definition because defining PAC status “only in terms of amount of 

annual ‘contributions’ and ‘expenditures’” might result in overbroad application by 

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reaching “groups engaged purely in issue discussion.” 424 U.S. at 79. The Court 

therefore concluded that the definition “need only encompass organizations that 

are under the control of a candidate or the major purpose of which is the 

nomination or election of a candidate.” Id. (emphasis added). Under the statute as 

thus construed, an organization that is not controlled by a candidate must register 

as a PAC only if the entity (1) crosses the $1,000 threshold of contributions or 

expenditures and (2) has as its “major purpose” the nomination or election of 

federal candidates. 

1. Organizational and Reporting Requirements; 

Contribution Limits 

PACs must comply with certain organizational and reporting requirements. 

They must register with the Commission and file periodic reports for disclosure to 

the public of their total operating expenses and cash-on-hand, as well as their 

receipts and disbursements, with limited exceptions for most transactions below a 

$200 threshold. See 2 U.S.C. §§ 433, 434. Each PAC must have a treasurer who 

maintains and preserves its records. 2 U.S.C. § 432(a)-(d). PACs also must 

disclose in their regular reports additional information about their independent 

expenditures, including the date, amount, and candidates supported or opposed for 

each independent expenditure over $200. 2 U.S.C. § 434(b)(4)(H)(iii), (6)(B)(iii). 

In addition, PACs must identify themselves through “disclaimers” on their public 

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8

political advertising, on their websites, and in mass emails. 11 C.F.R. 

§ 110.11(a)(1). 

As enacted, FECA permitted PACs to accept contributions only from 

individuals in amounts up to $5,000 per individual per year. See 2 U.S.C. 

§§ 441a(a)(1)(C), 441b(a). In SpeechNow.org v. FEC, however, the D.C. Circuit 

invalidated this restriction as applied to PACs whose campaign-related activity 

consists only of independent expenditures. 599 F.3d 686, 692-97 (D.C. Cir.) (en 

banc), cert. denied, 131 S. Ct. 553 (2010). But SpeechNow upheld the application 

of FECA’s reporting and organizational requirements to these independentexpenditure-only PACs, id. at 696-98, which have come to be known as “super 

PACs.” The court reasoned that “the public has an interest in knowing who is 

speaking about a candidate and who is funding that speech, no matter whether the 

contributions were made towards administrative expenses or independent 

expenditures.” Id. at 698. And the court found that the reporting required of 

political committees does not “impose much of an additional burden” compared 

with the reporting requirements for persons making independent expenditures. Id.

at 697.2

 

                                                           

2

 The Commission has since concluded, in several advisory opinions, that 

super PACs may also generally accept unlimited contributions from corporations, 

labor organizations, and other political committees. (See App. 418-19 n.4.) 

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2. The Major-Purpose Test 

In 2004, the Commission issued a notice of proposed rulemaking that asked 

whether the agency should promulgate a regulatory definition of “political 

committee” to establish categorical rules regarding the application of Buckley’s 

“major purpose” requirement to certain tax-exempt organizations. See FEC, 

Political Committee Status, 69 Fed. Reg. 11,736, 11,743-49 (Mar. 11, 2004). In 

2007, after receiving public comments, the Commission explained its decision not 

to promulgate such a regulation, which would have classified groups like Free 

Speech as political committees per se based on their registration as “political 

organizations” under section 527 of the Internal Revenue Code. FEC, 

Supplemental Explanation & Justification for the Regulations on Political 

Committee Status, 72 Fed Reg. 5595 (Feb. 7, 2007); see 26 U.S.C. § 527. This 

notice stated that instead of creating categorical regulations that might have led to 

overbroad or underinclusive PAC-status determinations, 72 Fed. Reg. at 5,598-

5,601, the Commission would continue its longstanding practice of determining an 

organization’s major purpose on a case-by-case basis. See id. at 5596-97. 

The notice explained that while the major-purpose requirement can be 

satisfied “through sufficiently extensive spending on Federal campaign activity,” 

id. at 5601 (citing FEC v. Mass. Citizens for Life, Inc., 479 U.S. 238, 262 (1986) 

(“MCFL”)), a fact-intensive analysis of each organization’s conduct, including 

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10

public statements, fundraising appeals, and spending on other activity, can help 

evaluate the organization’s campaign activities compared to its other activities. Id. 

The notice also discussed several matters in which the Commission or a court had 

analyzed a group’s major purpose, explaining that those matters cumulatively 

“provid[ed] considerable guidance to all organizations” regarding application of 

the major-purpose doctrine. See id. at 5595, 5605-06. 

The Commission’s case-by-case approach was challenged under the 

Administrative Procedure Act, 5 U.S.C. §§ 701-06, and upheld in Shays v. FEC, 

511 F. Supp. 2d 19, 29-31 (D.D.C. 2007). More recently, the Fourth Circuit 

upheld the constitutionality of the Commission’s approach to determining a 

group’s major purpose, finding that Buckley “did not mandate a particular 

methodology for determining an organization’s major purpose,” so the 

Commission is free to make that determination “either through categorical rules or 

through individualized adjudications.” Real Truth About Abortion, Inc. f/k/a Real 

Truth About Obama, Inc. v. FEC, 681 F.3d. 544, 556 (4th Cir. 2012) (“RTAA”) 

(citing SEC v. Chenery Corp., 332 U.S. 194, 203 (1947)), cert. denied, No. 12-311, 

--- S. Ct. ---, 2013 WL 57574 (Jan. 7, 2013). 

C. Solicitation of Contributions 

FECA defines “contribution” to include “any gift . . . or deposit of money or 

anything of value made by any person for the purpose of influencing any election 

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11

for Federal office.” 2 U.S.C. § 431(8)(A)(i); see 11 C.F.R. § 100.52(a). In 1979, 

Congress extended certain disclaimer requirements — which had previously 

applied only to express-advocacy communications — to solicitations for 

contributions. 2 U.S.C. § 441d(a); FECA Amendments of 1979, Pub. L. No. 96-

187, § 111, 93 Stat. 1339, 1365-66 (1980); see FEC v. Survival Educ. Fund, Inc., 

65 F.3d 285, 293 (2d Cir. 1995) (“SEF”) (rejecting construction of § 441d(a) as 

applying only to express-advocacy communications in light of Congress’s 

“specific[] exten[sion]” of that provision to solicitations). Requests for funds that 

“clearly indicat[e] that the contributions will be targeted to the election or defeat of 

a clearly identified candidate for federal office” are solicitations for contributions 

under FECA. SEF, 65 F.3d at 295. 

 As amended, FECA requires “any person” who “solicits any contribution 

through any broadcasting station, newspaper, magazine, outdoor advertising 

facility, mailing, or any other type of general public political advertising” to 

include a specified disclaimer in the solicitation. 2 U.S.C. § 441d(a); see 11 C.F.R. 

§ 110.11(a)(3). If the solicitation was not paid for or authorized by a candidate, the 

disclaimer must clearly state “who paid for the communication and . . . that the 

communication is not authorized by any candidate or candidate’s committee.” 

2 U.S.C. § 441d(a)(3). 

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II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY 

The Commission is the independent agency of the United States government 

with exclusive jurisdiction to administer, interpret, and civilly enforce FECA. See 

generally 2 U.S.C. §§ 437c, 437d. 

Free Speech is an unincorporated nonprofit association that was formed on 

February 21, 2012. (App. 66-67.) It does not intend to make contributions but 

seeks to distribute certain political advertisements anonymously, without 

registering as a PAC or complying with FECA’s disclosure requirements. (App. 

70-71, 78-79.) Free Speech also wishes to solicit donations to finance additional 

advertisements. (App. 67-68.) 

On February 29, 2012, Free Speech requested from the Commission an 

advisory opinion as to whether (a) any of eleven proposed advertisements would 

be deemed express advocacy; (b) any of four proposed donation requests would be 

deemed “solicitations”; and (c) its proposed activities would require it to register 

with the Commission as a political committee. (App. 102-07.) 

The only one of the eleven advertisements Free Speech mentions in its 

appellate brief (Appellant’s Br. 30-31), titled “Environmental Policy,” reads: 

President Obama opposes the Government Litigation Savings 

Act. This is a tragedy for Wyoming ranchers and a boon to 

Obama’s environmentalist cronies. Obama cannot be counted 

on to represent Wyoming values and voices as President. This 

November, call your neighbors. Call your friends. Talk about 

ranching. 

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(App. 68 (emphasis in original).) Free Speech represented in its advisory opinion 

request that it intended to broadcast this advertisement approximately 60 times 

through November 3, 2012. (Id.) The two donation requests Free Speech 

mentions in its appellate brief (Appellant’s Br. 37) are “War Chest,” which states: 

Friends of freedom celebrated when the Supreme Court decided 

Citizens United. Now, more than ever, we can make the most 

effective use of your donations this coming fall. Donations 

given to Free Speech are funds spent on beating back the 

Obama agenda. Beating back Obama in the newspapers, on the 

airwaves, and against his $1 billion war chest. 

(App. 104); and “Make Them Listen,” which reads: 

In 2010, the Tea Party movement ushered in an historic number 

of liberty-friendly legislators. But President Obama and his 

pals in Congress didn’t get the message. Stop the bailouts. No 

socialized healthcare. End oppressive taxes. But we won’t be 

silenced. Let’s win big this fall. Donate to Free Speech today. 

(App. 105.) 

On April 26, 2012, the Commission approved a response to Free Speech’s 

request, unanimously concluding that two of Free Speech’s eleven proposed 

advertisements are express advocacy, four of the ads are not express advocacy, and 

two of Free Speech’s four proposed donation requests are not solicitations under 

FECA. App. 282; see In the Matter of Free Speech, Advisory Opinion 2012-11, 

Certification (May 8, 2012), available at 

http://saos.nictusa.com/aodocs/1209338.pdf (last visited Feb. 4, 2013). The 

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advisory opinion explained that the Commission was unable to approve a response 

by the statutorily required four affirmative votes, 2 U.S.C. §§ 437c(c), 437d(a)(7), 

as to Free Speech’s remaining five proposed advertisements (including 

“Environmental Policy”), its two other proposed donation requests (“War Chest” 

and “Make Them Listen”), and the question of whether Free Speech must register 

as a political committee. (App. 282.) 

Free Speech filed its civil complaint and motion for a preliminary injunction 

on June 14, 2012, and an amended complaint on July 26. The amended complaint 

challenges the constitutionality of the Commission’s regulatory definition of 

express advocacy in section 100.22(b); the Commission’s method of determining 

PAC status, including the Commission’s approach to determining a group’s major 

purpose; and the Commission’s method of determining whether a request for 

donations is a solicitation for contributions. (App. 85-97.) The amended 

complaint describes some of the communications that were at issue in Free 

Speech’s advisory opinion request and alleges that the challenged regulation and 

policies are unconstitutional on their face and as applied to Free Speech. (App. 68-

69, 80-81.) 

The district court heard oral argument on the preliminary-injunction motion 

on September 12 and denied the motion orally in a transcribed teleconference on 

October 3. On October 19, Free Speech noticed this appeal and filed a motion in 

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15

the district court seeking an injunction pending appeal. On October 24, Free 

Speech moved for an emergency injunction pending appeal in this Court. The 

district court and this Court denied Free Speech’s motions on October 25 and 

October 29, respectively.

COUNTERSTATEMENT OF STANDARD OF REVIEW 

This Court “‘review[s] the grant [or denial] of a preliminary injunction for 

an abuse of discretion,’” recognizing that “‘a preliminary injunction is an 

extraordinary remedy, [and] the movant’s right to relief must be clear and 

unequivocal.’” Fundamentalist Church of Jesus Christ of Latter-Day Saints v. 

Horne, 698 F.3d 1295, 1301 (10th Cir. 2012). “An abuse of discretion occurs only 

when the trial court bases its decision on an erroneous conclusion of law or where 

there is no rational basis in the evidence for the ruling.” Northern Natural Gas Co. 

v. L.D. Drilling, Inc., 697 F.3d 1259, 1266 (10th Cir. 2012) (internal quotation 

marks omitted). The district court’s legal conclusions are reviewed de novo. 

Horne, 698 F.3d at 1301. 

Disclosure requirements for political speech are subject to intermediate or 

“exacting” scrutiny, “which requires ‘a substantial relation’ between the disclosure 

requirement and a ‘sufficiently important’ governmental interest.” Citizens United,

130 S. Ct. at 914 (quoting Buckley, 424 U.S. at 64, 66); see infra pp. 21-23. 

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SUMMARY OF ARGUMENT 

Free Speech has failed to meet its heavy burden to obtain a preliminary 

injunction, and the district court did not abuse its discretion in denying that relief. 

The district court correctly recognized that the question presented in this case “is 

not whether plaintiff can make expenditures for the speech it proposes nor raise 

money without limitation but simply whether it must provide disclosure of its 

electoral advocacy.” (App. 485.) Specifically, the regulation and policies at issue 

here impose disclosure requirements on unambiguous campaign advocacy, on 

groups whose “major purpose” is to nominate or elect federal candidates, and on 

solicitations of contributions targeted to elect or defeat federal candidates. Such 

disclosure requirements for candidate-related speech are constitutional because 

they help prevent political corruption and “‘insure that the voters are fully 

informed’ about the person or group who is speaking.” Citizens United, 130 S. Ct. 

at 915 (quoting Buckley, 424 U.S. at 76). Disclosure 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, 540 U.S. at 

201). 

The Commission’s regulatory definition of express advocacy is strikingly 

similar to the definition of the “functional equivalent of express advocacy” that the 

Supreme Court adopted in WRTL. As the Fourth Circuit recently noted in 

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17

affirming the constitutionality of the same regulation, the Supreme Court’s 

standard is by definition constitutional, and so the similarity between that standard 

and the Commission’s regulation necessarily forecloses any argument the 

regulation is vague, overbroad, or otherwise unconstitutional. 

The Commission’s case-by-case methodology for determining PAC status is 

an eminently reasonable application of Buckley’s major-purpose requirement. The 

major-purpose determination is inherently comparative, requiring the Commission 

to examine how much of an organization’s purpose is dedicated to nominating or 

electing federal candidates versus other activities. Thus, there is no constitutional 

flaw in the Commission’s decades-old practice of determining a group’s major 

purpose based on the specific characteristics and actions of that group. And the 

Commission’s practice of publicly releasing the results of such determinations 

provides extensive guidance to all interested parties regarding precisely how the 

Commission analyzes PAC status. 

Free Speech’s request to halt enforcement — at the peak of a presidential 

election season — of a longstanding campaign-finance regulation and policies that 

facilitate campaign-related disclosures would have deprived the public of essential 

information about the sources of electoral advocacy. Any logistical inconvenience 

Free Speech might have experienced in disclosing that information does not 

constitute irreparable harm. Free Speech is and has always been free to finance 

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18

and distribute each of its proposed advertisements, and to solicit and accept 

unlimited contributions to pay for them. But it has no constitutional right to avoid 

FECA’s disclosure requirements for federal campaign activity. The district court’s 

order denying Free Speech’s motion for a preliminary injunction should be 

affirmed. 

ARGUMENT 

I. LEGAL STANDARDS 

A. A Preliminary Injunction that Alters the Status Quo Is an 

Extraordinary and Disfavored Remedy that Requires Free Speech 

to Meet a Heavy Burden 

The district court correctly concluded that Free Speech was not entitled to a 

preliminary injunction, and the court applied the proper standard in reaching that 

conclusion. (App. 484-485.) A movant seeking a preliminary injunction must 

demonstrate that: (1) it is substantially likely to succeed on the merits; (2) it would 

suffer irreparable injury absent the requested injunction; (3) its threatened injury 

outweighs the injury to the opposing party; and (4) the requested injunction would 

not harm the public interest. Northern Natural Gas, 697 F.3d at 1266; Beltronics 

USA, Inc. v. Midwest Inventory Distrib., LLC, 562 F.3d 1067, 1070 (10th Cir. 

2009; see Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). 

The purpose of a preliminary injunction is “to preserve the relative positions 

of the parties until a trial on the merits can be held.” Univ. of Tex. v. Camenisch, 

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451 U.S. 390, 395 (1981); see also Turner Broad. Sys., Inc. v. FCC, 507 U.S. 1301 

(1993) (Rehnquist, C.J., in chambers) (refusing to enjoin enforcement statute 

despite First Amendment claim and noting that “applicants request that I issue an 

order altering the legal status quo”) (emphasis in original). Thus, in this Circuit, a 

movant seeking a “disfavored” injunction that “alters the status quo” is subject to 

an even “more stringent standard” under which it must “make a ‘strong showing’ 

of both the likelihood of success on the merits of its . . . claim and that the balance 

of the harms favored issuing the requested injunction.” Northern Natural Gas, 697 

F.3d at 1266. Such an injunction is especially inappropriate in the pre-election 

context, where “considerations specific to election cases” weigh heavily against the 

issuance of injunctions. Purcell v. Gonzalez, 549 U.S. 1, 4-5 (2006) (per curiam) 

(“Court orders affecting elections . . . can themselves result in voter confusion . . . . 

As an election draws closer, that risk will increase.”); Iowa Right to Life Comm., 

Inc. v. Smithson, 750 F. Supp. 2d 1020, 1049 (S.D. Iowa 2010) (declining to issue 

preliminary injunction that would “radically change . . . campaign finance rules 

mid-stream during an election”). 

Free Speech attempts to redefine these well-settled preliminary-injunction 

standards beyond recognition. First, Free Speech erroneously claims that the mere 

act of moving for a preliminary injunction in the First Amendment context 

establishes a presumption that the movant is likely to succeed on the merits. 

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(Appellant’s Br. 9, 17.) That argument is fundamentally inconsistent with the 

“presumption of constitutionality” accorded to federal statutes, Walters v. Nat’l 

Ass’n of Radiation Survivors, 468 U.S. 1323, 1324 (1984) (Rehnquist, J., in 

chambers), and with the “close[] scrutin[y]” this Court requires for the 

“disfavored” relief Free Speech seeks. Awad v. Ziriax, 670 F.3d 111, 1125 (10th 

Cir. 2012) (holding that injunctions that would alter status quo “must be more 

closely scrutinized to assure that the exigencies of the case support granting of a 

remedy that is extraordinary even in the normal course”). The only authority upon 

which Free Speech relies for its proposition is Ashcroft v. ACLU, which noted the 

established principle that the government “bears the burden of proof on the 

ultimate question of [a statute’s] constitutionality” under strict scrutiny. 542 U.S. 

656, 666 (2004). But strict scrutiny does not apply here, see infra pp. 22-23, and 

nothing in Ashcroft purported to hold that merely by alleging a First Amendment 

violation a plaintiff becomes presumptively entitled to halt all governmental 

enforcement of the challenged provisions while the case is pending. To the 

contrary, “[a] preliminary injunction is an extraordinary remedy never awarded as 

of right.” Winter, 555 U.S. at 24 (emphasis added).3

                                                           

3

 Free Speech cites WRTL but admits that case was not decided in “the context 

of preliminary injunctions.” (Appellant’s Br. 17 (citing WRTL, 551 U.S. 449).) 

More importantly, WRTL simply does not say what Free Speech claims, i.e., that 

“all doubts must be resolved in favor of the speaker” whenever “speech 

implicating political issues is under judicial review.” (Id.) Instead, the controlling 

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Free Speech also speciously asserts that the requested injunction against the 

Commission’s enforcement of a longstanding federal regulation and policies would 

not alter the status quo, but instead would “restore the proper status quo ante,” i.e.

“freedom.” (Appellant’s Br. 18-19 (citing O Centro Espirita Beneficiente Uniao 

Do Vegetal v. Ashcroft, 389 F.3d 973, 1013 (10th Cir. 2004) (McConnell, J., 

concurring), aff’d 546 U.S. 418 (2006)).) But Free Speech’s own purported 

authority for this assertion refutes it: “When a statute has long been on the books 

and enforced, . . . it is exceedingly unusual for a litigant who challenges its 

constitutionality to obtain (or even to seek) a preliminary injunction against its 

continued enforcement.” O Centro, 389 F.3d at 1018 (McConnell, J., concurring) 

(emphasis added). Moreover, Free Speech’s argument proves far too much: If the 

relevant “status quo ante” were a nation without laws, then every statute or 

regulation would be presumptively subject to an injunction whenever challenged 

— a result that cannot be reconciled with the binding precedent discussed above. 

B. Constitutional Standards 

1. Disclaimer and Disclosure Requirements Are Subject to 

Intermediate Scrutiny 

As the Supreme Court explicitly confirmed in Citizens United, “[d]isclaimer 

and disclosure requirements” are subject to “‘exacting scrutiny,’ which requires a 

                                                                                                                                                                                               

opinion in WRTL noted that in the context of laws that ban speech, “the tie goes to 

the speaker, not the censor.” WRTL, 551 U.S. at 474. That statement is plainly 

inapplicable here, where no speech is being censored. 

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‘substantial relation’ between the disclosure requirement and a ‘sufficiently 

important’ governmental interest.” 130 S. Ct. at 914. This Court has recognized 

the same, N.M. Youth Organized v. Herrera, 611 F.3d 669, 676 (10th Cir. 2010), as 

have its sister circuits, see RTAA, 681 F.3d at 555, 558 (upholding section 

100.22(b) and Commission’s method of determining PAC status under exacting 

scrutiny); Nat’l Org. for Marriage v. McKee, 649 F.3d 34, 56-70 (1st Cir. 2011)

(upholding state-law definitions of and disclosure requirements for independent 

expenditures and PACs under exacting scrutiny), cert. denied, 132 S. Ct. 1635 

(2012); Human Life of Wash. Inc. v. Brumsickle, 624 F.3d 990, 1003-19 (9th Cir. 

2010) (same), cert. denied, 131 S. Ct. 1477 (2011); SpeechNow, 599 F.3d at 698 

(upholding federal PAC requirements under exacting scrutiny); see also Nat’l Org. 

for Marriage Inc. v. Sec’y, State of Fla., 477 F. App’x 584, 585 (11th Cir. 2012) 

(citing McKee). The district court thus correctly found that “[c]ontrolling 

precedent does not support [Free Speech’s] argument that strict scrutiny is 

applicable” here. (App. 485.) 

Free Speech appears to concede that the district court appropriately rejected 

its argument for strict scrutiny, as it now acknowledges that exacting scrutiny 

applies to “each area of substantive election law” that it challenges. (Appellant’s 

Br. 8.) But despite embracing “exacting scrutiny” in name, Free Speech 

misrepresents the content of that constitutional standard, inaccurately claiming that 

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exacting scrutiny is “closely related” to the more rigorous strict-scrutiny standard 

(Appellant’s Br. 8), and improperly applying the elements of strict scrutiny to the 

challenged disclosure rules. Contrary to Free Speech’s assertions, disclosure 

requirements need not be “narrowly tailored” (id. at 10, 20, 42), nor must they be 

the “le[ast] restrictive alternative[] [that] would effectively carry out the FEC’s 

legitimate interest in disclosure” (id. at 9, 17). Such requirements apply in the 

context of strict scrutiny, see United States v. Stevens, 130 S. Ct. 1577, 1584 

(2010); United States v. Friday, 525 F.3d 938, 949 (10th Cir. 2008), not to the 

“substantial relation” test of exacting scrutiny. See, e.g., Doe v. Reed, 130 S. Ct. 

2811, 2818 (2010) (citing “series of precedents considering First Amendment 

challenges to disclosure requirements in the electoral context” that establish 

“‘exacting scrutiny’” as applicable constitutional standard); RTAA, 681 F.3d at 

548-49 (distinguishing between strict scrutiny and “less stringent ‘exacting 

scrutiny’ standard” and declining to apply strict scrutiny to section 100.22(b) or 

Commission’s method of determining PAC status); McKee, 649 F.3d at 55 

(“[D]isclosure requirements have not been subjected to strict scrutiny, but rather to 

“‘exacting scrutiny . . . .’”). 

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2. Free Speech’s Burden for Its Facial Challenges 

Free Speech’s facial challenges include claims of both overbreadth and 

vagueness.

4

 This Court has held that a plaintiff bringing a facial challenge “must 

establish that the law, in every application, ‘creates an impermissible risk of 

suppression of ideas, such as an ordinance that delegates overly broad discretion to 

the decisionmaker, and in cases where the ordinance sweeps too broadly, 

penalizing a substantial amount of speech that is constitutionally protected.’” 

Colo. Right to Life Comm., Inc. v. Coffman, 498 F.3d 1137, 1155 (10th Cir. 2007) 

(quoting Forsyth Cnty. v. Nationalist Movement, 505 U.S. 123, 129-30 (1992)). 

Thus, Free Speech carries the “heavy burden of proving” that the alleged 

“overbreadth [is] substantial, not only in an absolute sense, but also relative to [the 

challenged provisions’] plainly legitimate sweep.” United States v. Williams, 553 

U.S. 285, 292 (2008). 

                                                           

4

 Free Speech does little to support its purported as-applied claims, barely 

mentioning Free Speech’s proposed communications, let alone explaining how the 

challenged provisions cannot constitutionally be applied to them. (See Appellant’s 

Br. 28-29 (acknowledging distinction between facial and as-applied challenges but 

stating that “they will be considered in tandem in this brief”).) A plaintiff’s 

characterization of its own challenge as “as-applied” is not controlling, Citizens 

United, 130 S. Ct. at 893, and because Free Speech fails to identify any unusual 

feature of its own circumstances that would render the challenged provisions 

invalid as applied, the Court can “reject those claims summarily.” McKee, 649 

F.3d at 41; see also Iowa Right to Life Comm., Inc. v. Tooker, 795 F. Supp. 2d 852, 

862 n.16 (S.D. Iowa 2011) (noting requirement that plaintiff “distinguish between 

its facial and as-applied arguments”). 

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Free Speech also argues that the challenged regulation and policies are 

unconstitutionally vague. To prevail on this theory, Free Speech must show that 

they fail to give “the person of ordinary intelligence a reasonable opportunity to 

know what is prohibited, so that he may act accordingly” and that they permit 

“arbitrary and discriminatory enforcement.” Grayned v. City of Rockford, 408 

U.S. 104, 108 (1972). 

II. FREE SPEECH CANNOT SHOW THAT IT IS LIKELY TO 

PREVAIL ON THE MERITS OF ITS CLAIMS

A. Section 100.22(b) Is Constitutional 

Section 100.22 defines “expressly advocating” and thus provides guidance 

on whether a communication is an “independent expenditure” under FECA. The 

regulation originally functioned in part to implement FECA’s ban on corporate and 

union independent expenditures, 2 U.S.C. § 441b, which the Supreme Court struck 

down in Citizens United. Because such prohibitions no longer exist, section 

100.22(b) no longer implements spending restrictions. See RTAA, 681 F.3d at 548. 

Thus, contrary to Free Speech’s hyperbolic assertions, section 100.22(b) does not 

“penalize” or “suppress[] . . . speech by average Americans.” (Appellant’s Br. 14, 

33.)5

 It simply triggers disclosure requirements for communications that 

                                                           

5

 Indeed, as Free Speech ultimately admits, “[i]n this case, Free Speech

silenced itself” (Appellant’s Br. 57 (emphasis added)), and its reliance on cases 

addressing government-imposed speech restrictions (id. at 25) is therefore entirely 

misplaced. See infra pp. 55-56. 

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26

unambiguously advocate the election or defeat of a federal candidate and helps 

determine whether an organization must register and report as a PAC. Moreover, 

as the district court correctly noted in agreement with the Fourth Circuit, the 

regulation is narrow, objective, and consistent with Supreme Court precedent. 

App. 17-18; RTAA, 681 F.3d at 552. 

1. Section 100.22(b) Is Not Unconstitutionally Vague 

a. The Regulation Is Consistent with WRTL’s Definition 

of the Functional Equivalent of Express Advocacy

A communication is “express advocacy” under section 100.22(b) only if it 

contains an “electoral portion” that is “unmistakable, unambiguous, and suggestive 

of only one meaning,” as to which “[r]easonable minds could not differ [that] it 

encourages actions to elect or defeat one or more clearly identified candidate(s).” 

As the district court explained (App. 486-87), that definition comports with the 

definition of the “functional equivalent of express advocacy” that the Supreme 

Court articulated in WRTL, 551 U.S. at 469-70, and applied in Citizens United, 130 

S. Ct. at 890. Section 100.22(b) — like the WRTL test — excludes from regulation 

any communication that can reasonably be interpreted as non-candidate advocacy. 

Compare 11 C.F.R. § 100.22(b) (“[r]easonable minds could not differ”), with 

WRTL, 551 U.S. at 469-70 (“susceptible of no [other] reasonable interpretation”). 

And contrary to Free Speech’s characterization of the regulation as a “freewheeling 

examination[] into speakers’ subjective intents and listeners’ subjective biases” 

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(Appellant’s Br. 27), both definitions are objective, precluding consideration of the 

speaker’s “subjective intent.” Compare WRTL, 551 U.S. at 472, with FEC, 

Express Advocacy; Independent Expenditures; Corporate and Labor Organization 

Expenditures, 60 Fed. Reg. 35,292, 35,295 (July 6, 1995) (“[T]he subjective intent 

of the speaker is not a relevant consideration [under § 100.22(b)] . . . .”); see also 

Citizens United, 130 S. Ct. at 895, 889-90 (describing WRTL test as “objective”).6

Relying on the striking similarity between the standard in section 100.22(b) 

and the WRTL test, the Fourth Circuit flatly rejected a constitutional challenge to 

section 100.22(b) indistinguishable from the challenge put forward in the instant 

case. In RTAA, the court held that “§ 100.22(b) is constitutional . . . and . . . 

consistent with the test developed in Wisconsin Right to Life and is not unduly 

vague” or overbroad. 681 F.3d at 551-52, 555.7

 Free Speech’s appellate brief fails 

even to mention the Fourth Circuit’s holding, even though the court below cited 

RTAA extensively. (See App. 480, 485-87, 490-91.) Like the Fourth Circuit, the 

                                                           

6

 The regulation’s “reasonable person” test is like other objective 

constitutional tests. See, e.g., Wyatt v. Cole, 504 U.S. 158, 166 (1992) (qualified 

immunity depends upon a “wholly objective standard” based on whether a 

“reasonable person” would have known of clearly established rights); Florida v. 

Jimeno, 500 U.S. 248, 251 (1991) (“[C]onsent under the Fourth Amendment is that 

of ‘objective’ reasonableness — what would the typical reasonable person have 

understood by the exchange between the officer and the suspect?”). 

7

 Less than one month ago, the Fourth Circuit reaffirmed the holding of RTAA 

and concluded that a state-law definition of “expressly advocating” that tracks the 

WRTL test “is not unconstitutionally vague.” Ctr. for Individual Freedom, Inc. v. 

Tennant, No. 11-1952, --- F.3d ---, 2013 WL 208912, at *7 (4th Cir. Jan. 18, 

2013). 

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district court observed that although the regulation “does not exactly mirror the 

functional equivalent definition in Wisconsin Right to Life, the difference between 

the two tests [is] not meaningful”; if anything, “the test under § 100.22(b) is likely 

narrower than the one articulated in Wisconsin Right to Life, since it requires a 

communication to have an ‘electoral portion’ that is ‘unmistakable’ and 

‘unambiguous.’” (App. 487 (quoting RTAA, 681 F.3d at 552).) 

Despite the similarities between the Commission’s and the Supreme Court’s 

definitions of express advocacy and its functional equivalent, Free Speech asserts 

that section 100.22(b) is “hopelessly vague.” (Appellant’s Br. 28.) In WRTL,

however, the Chief Justice’s controlling opinion specifically rejected Justice 

Scalia’s argument in a separate opinion that the “no reasonable interpretation” test 

was “impermissibly vague.” 551 U.S. at 474 n.7. And the Court’s subsequent 

application of the WRTL test in Citizens United puts to rest any credible claim that 

the standard is constitutionally infirm. See Citizens United, 130 S. Ct. at 889-90 

(applying “the standard stated in McConnell and further elaborated in WRTL” to 

conclude that film criticizing presidential candidate Hillary Clinton “qualifie[d] as 

the functional equivalent of express advocacy”). The district court was therefore 

correct — and certainly did not abuse its discretion — when it reached the same 

conclusion as the Fourth Circuit and held that section 100.22(b) cannot be 

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unconstitutionally vague in light of the Supreme Court’s adoption and application 

of a highly similar standard. (App. 486-87.) 

b. Disagreements About the Application of Section 

100.22(b) Do Not Demonstrate Unconstitutional 

Vagueness

The district court correctly rejected Free Speech’s contention that the lack of 

unanimity among the FEC’s six Commissioners in analyzing some of Free 

Speech’s proposed communications demonstrates that section 100.22(b) is 

unconstitutionally vague.8

 (App. 487.) As the Supreme Court has noted, “[c]lose 

cases can be imagined under virtually any statute. The problem that poses is [not] 

addressed . . . by the doctrine of vagueness.” Williams, 553 U.S. at 306; see also

United States v. Wurzbach, 280 U.S. 396, 399 (1930) (holding that Federal Corrupt 

Practices Act was not facially vague because “[w]herever the law draws a line 

there will be cases very near each other on opposite sides”). The Fourth Circuit 

relied on these holdings in rejecting the argument that section 100.22(b) is vague 

simply because different people can reach different results regarding a given 

communication. RTAA, 681 F.3d at 554 (citing Williams and Wurzbach and 

holding that disagreement between district court and Commission regarding 

                                                           

8

 Free Speech erroneously states that the Commissioners reached 

“diametrically opposed conclusions regarding most of Free Speech’s ads.” 

(Appellant’s Br. 11.) To the contrary, the Commissioners agreed unanimously

regarding the application of section 100.22(b) to six of Free Speech’s eleven 

proposed ads. (See App. 282; supra p. 13.) 

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whether one communication met § 100.22(b) test did not demonstrate vagueness in 

regulation). As the district court in this case correctly observed, such disagreement 

“proves little because cases that fall close to the line will inevitably arise when 

applying Section 100.22(b). This kind of difficulty is simply inherent in any kind 

of standards-based test.” (App. 487 (citing RTAA, 681 F.3d at 554).) 

Moreover, Free Speech’s limited discussion of the Commissioners’ analyses 

of its ads is misleading. Free Speech describes the “Environmental Policy” 

advertisement — the only ad it mentions here — as simply requesting that people 

“talk about ranching,” and Free Speech asserts that the three Commissioners who 

voted to find this ad express advocacy “felt empowered to divine [its] supposed 

true meaning.” (Appellant’s Br. 31.) Free Speech fails to note that 

“Environmental Policy” explicitly links criticism of a presidential candidate with a 

call to action for the month of the upcoming election: “Obama cannot be counted 

on to represent Wyoming values and voices as President. This November, call your 

neighbors.” (App. 68.) As the Supreme Court has held, a communication with 

such elements meets the WRTL test. See Citizens United, 130 S. Ct. at 890 

(concluding that film providing “extended criticism of Senator Clinton’s character 

and her fitness for the office of the Presidency” was “equivalent to express 

advocacy”); WRTL, 551 U.S. at 470 (identifying certain “indicia of express 

advocacy” such as whether a communication “mention[s] an election [or] 

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candidacy” or “take[s] a position on a candidate’s character, qualifications, or 

fitness for office”);9 see also Real Truth About Obama, Inc. v. FEC, 796 F. Supp. 

2d 736, 749-50 (E.D. Va. 2011) (concluding that ad “focus[ing] entirely on thenSenator Obama’s position on abortion, . . . call[ing] Senator Obama’s votes on 

state abortion legislation ‘horrendous,’ . . . claim[ing] he ‘tried to cover-up’ those 

votes and lied about them,” and “call[ing] Senator Obama ‘callous’” was express 

advocacy under section 100.22(b)), aff’d, RTAA, 681 F.3d 544, cert. denied, No. 

12-311, --- S. Ct. ---, 2013 WL 57574 (Jan. 7, 2013).10

2. Section 100.22(b) Is Not Overbroad 

Supreme Court decisions culminating in Citizens United and Doe v. Reed 

have held that disclosure requirements may constitutionally reach even beyond

express advocacy or its functional equivalent. After clarifying that Buckley’s

                                                           

9

 In light of WRTL’s clear description of “indicia of express advocacy,” there 

is no merit to Free Speech’s criticism of the Commission’s statement that 

communications discussing “‘a candidate’s character, qualifications or 

accomplishments’” may be express advocacy under section 100.22(b) “‘if, in 

context, they have no reasonable meaning other than to encourage actions to elect 

or defeat the candidate in question.’” (Appellant’s Br. 28 (quoting 60 Fed. Reg. at 

35,295).) 

10 Although “Environmental Policy” also mentions President Obama’s 

opposition to “the Government Litigation Savings Act,” it neither explains what 

that bill concerns nor identifies any means by which one could find out. The ad is 

thus not what the controlling opinion in WRTL identified as “a genuine issue ad.” 

See WRTL, 551 U.S. at 469-70 & n.6 (distinguishing “genuine issue ad,” which 

“conveys information and educates,” from ads that “condemn [a candidate’s] 

record on a particular issue”) (citation omitted). 

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“express advocacy limitation, in both the expenditure and the disclosure contexts, 

was the product of statutory interpretation rather than a constitutional command,” 

McConnell upheld BCRA’s disclosure requirements for electioneering 

communications.11 540 U.S. at 191-92, 194-99. The Court reiterated the 

“important state interests” served by disclosure requirements — interests that 

include “providing the electorate with information” and “deterring actual 

corruption and avoiding any appearance thereof.” Id. at 196. And the Court noted 

that the only constitutional challenges it had ever sustained to such disclosure 

provisions involved situations in which disclosure led to “threats, harassment, or 

reprisals” against individuals engaged in First Amendment activity. See id. at 197-

98. The Court held that absent evidence showing a “reasonable probability” of 

such incidents occurring, id. at 198-99, a constitutional challenge to disclosure of 

electioneering communications is “foreclose[d].” Id. at 197. 

In Citizens United, the Court upheld BCRA’s disclosure requirements as 

applied to a movie that was the functional equivalent of express advocacy. 130 

S. Ct. at 889-90. But the Court also upheld these disclosure requirements even as 

                                                           

11 Free Speech claims that it “might have to file . . . electioneering 

communications reports” (Appellant’s Br. 24 n.2, 29-30), but the relatively low 

cost of its proposed broadcast advertisements falls below the statutory threshold of 

FECA’s reporting requirements for electioneering communications. Compare

App. 360-61 (noting $1,500 cost of broadcast advertisements), with 2 U.S.C. 

§ 434(f) (establishing $10,000 reporting threshold and excluding non-broadcast 

advertising). 

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applied to electioneering communications that merely advertised the movie — 

communications that the Commission had conceded were not the functional 

equivalent of express advocacy. Id. at 914-16. Eight Justices held that disclosure 

requirements are a constitutionally permissible method of furthering the public’s 

important interest in knowing who is responsible for pre-election communications 

that speak about candidates. See id. at 915-16. As the Court explained, “[t]he First 

Amendment protects political speech; and disclosure permits citizens and 

shareholders to react to the speech . . . in a proper way. This transparency enables 

the electorate to make informed decisions and give proper weight to different 

speakers and messages.” Id. at 916. Thus, when asked to confine the “disclosure 

requirements . . . to speech that is the functional equivalent of express advocacy,” 

the Court flatly “reject[ed] this contention.” Id. at 915. Mandatory disclosure is 

constitutional even if the communications contain no direct candidate advocacy but 

“only pertain to a commercial transaction.” Id. (citing Buckley, 424 U.S. at 75-76; 

McConnell, 540 U.S. at 321). 

That holding is of a piece with the Supreme Court’s long history of applying 

intermediate scrutiny and upholding disclosure requirements for issue advocacy. 

Decades before Citizens United, the Court had upheld the constitutionality of 

lobbying disclosure laws that “merely provided for a modicum of information from 

those who for hire attempt to influence legislation or who collect or spend funds 

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for that purpose.” United States v. Harriss, 347 U.S. 612, 625 (1954). Later, in 

First National Bank of Boston v. Bellotti, the Court struck down spending 

restrictions on ballot measures but noted that “[i]dentification of the source of 

advertising may be required as a means of disclosure, so that the people will be 

able to evaluate the arguments to which they are being subjected.” 435 U.S. 765, 

792 n.32 (1978). And shortly after deciding Citizens United, the Court held that a 

state’s interest in preserving the integrity of the electoral process is sufficient to 

justify a requirement that individuals who sign petitions to place referenda on state 

ballots disclose their names and addresses. Reed, 130 S. Ct. at 2819-22. 

In light of these decisions and Citizens United’s endorsement of “[a] 

campaign finance system that pairs corporate independent expenditures with

effective disclosure,” 130 S. Ct. at 916 (emphasis added), Free Speech’s qualified 

concession (Appellant’s Br. 10) that Citizens United upheld only “simple 

disclosure” and only for “a very narrowly defined form of speech” is woefully 

deficient. As the Fourth Circuit and the district court concluded, “‘[i]f mandatory 

disclosure requirements are permissible when applied to ads that merely mention a 

federal candidate, then applying the same burden to ads that go further and are the 

functional equivalent of express advocacy cannot automatically be 

impermissible.’” App. 486 (quoting RTAA, 681 F.3d at 551-52); see Tennant, 

2013 WL 208912, at *7 (citing Citizens United’s holding that disclosure 

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requirements need not be limited to “‘speech that is the functional equivalent of 

express advocacy’” and concluding that state-law provision that mirrors WRTL test 

“cannot be overbroad”). In addition to the Fourth Circuit, at least four other Courts 

of Appeals have reached similar conclusions. See Ctr. for Individual Freedom v. 

Madigan, 697 F.3d 464, 484 (7th Cir. 2012) (“Whatever the status of the express 

advocacy/issue discussion distinction may be in other areas of campaign finance 

law, Citizens United left no doubt that disclosure requirements need not hew to it 

to survive First Amendment scrutiny.”); Nat’l Org. for Marriage, 477 F. App’x at 

585 (11th Cir.) (adopting rationale of First Circuit in McKee); McKee, 649 F.3d at 

54-55 (1st Cir.) (“[I]t [is] reasonably clear, in light of Citizens United, that the 

distinction between issue discussion and express advocacy has no place in First 

Amendment review of these sorts of disclosure-oriented laws.”); Brumsickle, 624 

F.3d at 1016 (9th Cir.) (“Given the Court’s analysis in Citizens United, and its 

holding that the government may impose disclosure requirements on speech, the 

position that disclosure requirements cannot constitutionally reach issue advocacy 

is unsupportable.”). 

Free Speech ignores this unanimous body of authority that interprets 

Citizens United as permitting disclosure requirements for a broad range of speech 

that includes, but is not limited to, express advocacy and its functional equivalent. 

Instead, Free Speech asserts that even after Citizens United, “the Tenth Circuit, and 

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36

many of its sister circuits, still require some . . . express advocacy test . . . to limit 

the overbroad or vague application of regulations . . . to political speech.” 

(Appellant’s Br. 27.) But none of the decisions Free Speech cites casts any doubt 

on the constitutionality of requiring disclosure for communications that meet the 

definition of section 100.22(b). 

In Herrera, this Court held that “speech that expressly advocates or is the 

functional equivalent of express advocacy . . . is unambiguously related to the 

campaign of a candidate and thus properly subject to regulation regardless of its 

origination.” 611 F.3d at 678 (citing WRTL, 551 U.S. at 476; emphases added). 

The ads at issue in Herrera were not express advocacy or its functional equivalent 

because, unlike Free Speech’s proposed ads, they “highlighted the legislators’ 

voting records, . . . warned that corporate interests were likely to try to influence 

legislators’ positions on . . . legislation and urged recipients to contact their 

legislators so that their voices could be heard.” Id. at 674. In other words, the ads 

in Herrera could reasonably be interpreted as what the controlling opinion in 

WRTL identified as “a genuine issue ad.” See WRTL, 551 U.S. at 469-70 & n.6. 

As explained supra pp. 26-29, a communication that has no reasonable 

interpretation other than as encouraging the election or defeat of a candidate — 

i.e., a communicate-on meeting the WRTL and section 100.22(b) tests — is by 

definition not a “genuine issue ad” for constitutional purposes. And Free Speech 

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fails to identify any, let alone “many,” decisions from other circuits identifying 

what alternative “formulation of an express advocacy test” is required after 

Citizens United. (Appellant’s Br. 27.) The only two circuit decisions it cites are 

Center for Individual Freedom v. Carmouche, 449 F.3d 655 (5th Cir. 2006), and 

Anderson v. Spear, 356 F.3d 651 (6th Cir. 2004), both of which were decided years 

before Citizens United. 

In sum, after WRTL and Citizens United, requiring disclosure of 

communications that meet section 100.22(b)’s definition of “expressly advocating” 

is plainly constitutional. 

3. Free Speech’s Mischaracterizations of the Commission’s 

Enforcement Matters Fail to Demonstrate Any Flaw in 

Section 100.22(b) 

Free Speech’s attacks on the Commission’s history of enforcing section 

100.22(b) are completely off-base. Free Speech’s description of that history 

consists exclusively of statements by a non-majority of Commissioners (or “the 

Commission’s lawyers”) in matters in which the Commission did not vote to find a 

violation premised on section 100.22(b). (Appellant’s Br. 32 & n.3 (citing, inter 

alia, statement of three Commissioners, statement of two Commissioners, and 

recommendations from Commission’s General Counsel).) Such statements that 

have not been adopted by a majority of the Commission do not constitute official 

Commission interpretations. See Serono Labs., Inc. v. Shalala, 158 F.3d 1313, 

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1321 (D.C. Cir. 1998) (“Chevron deference is owed to the decisionmaker 

authorized to speak on behalf of the agency, not to each individual agency 

employee . . . .”); Deukmejian v. Nuclear Regulatory Comm’n, 751 F.2d 1287, 

1327 (D.C. Cir. 1984) (observing that NRC majority is not “required to accept the 

advice of some members of their legal and technical staff”), aff’d in relevant part 

sub nom., San Luis Obispo Mothers for Peace v. U.S. Nuclear Regulatory 

Comm’n, 789 F.2d 26 (D.C Cir. 1986) (en banc); cf. Ad Hoc Metals Coalition v. 

Whitman, 227 F. Supp. 2d 134, 143 (D.D.C. 2002) (explaining that judicial review 

is not based on predecisional process). To the extent these enforcement matters are 

relevant here, they demonstrate the narrowness with which the Commission applies 

section 100.22(b). Indeed, far from representing a “freewheeling, undefined” 

approach “with which to penalize speech and speakers” (Appellant’s Br. 32 n.3, 

33), the Commission’s enforcement history is so reserved that Free Speech does 

not identify a single enforcement matter in which it alleges the Commission 

applied the regulation improperly to find a violation of FECA. 

Free Speech also complains that the Commission’s enforcement decisions 

regarding section 100.22(b) — along with the 1995 Federal Register notice 

regarding its promulgation, 60 Fed. Reg. 35,292 — have provided too much

guidance on the Commission’s interpretation and application of that regulation. 

(See Appellant’s Br. 28 (criticizing “lengthy” Federal Register notice); id. at 31 

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(complaining that Commission “invites individuals to read thousands of pages of 

previous enforcement matters”).) Such assertions cannot be reconciled with Free 

Speech’s contradictory (and equally unsupported) allegations that the Commission 

applies section 100.22(b) in an “undefined” manner that precludes “[w]ould-be 

speakers” from being “let in on the Commission’s current assessment.” (Id. at 28; 

see id. at 37-38 (alleging “lack of clarity and guidance” for “interested persons 

who wish to tailor their conduct in compliance with the law”).) Because every 

enforcement matter provides guidance to potential advertisers regarding “the 

Commission’s current assessment,” Free Speech’s claims regarding the paucity or 

overabundance of information regarding the Commission’s application of section 

100.22(b) have no basis in law or fact. 

4. Section 100.22(b) Is Within the Commission’s Authority 

and Consistent with Congressional Intent 

Free Speech’s perfunctory argument that the Commission lacked statutory 

authority to promulgate section 100.22(b) (Appellant’s Br. 26) does not even 

mention — much less make any effort to satisfy — the required elements of such a 

claim. See generally Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 

U.S. 837 (1984). Congress codified the term “expressly advocating” without 

definition or limit, see 2 U.S.C. § 431(17), and the Commission’s regulatory 

construction of the statutory term is a lawful exercise of its administrative duty to 

“prescribe rules [and] regulations . . . to carry out the provisions of [FECA].” 

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2 U.S.C. § 438(a)(8); see Chevron, 467 U.S. at 842-45. Moreover, Congress later 

explicitly provided by statute that BCRA’s amendments to FECA would not affect 

section 100.22(b). See BCRA § 201(a), 116 Stat. 89 (codified at 2 U.S.C. 

434(f)(3)(A)(ii)) (“Nothing in [the statutory definition of ‘electioneering 

communication’] shall be construed to affect the interpretation or application of 

section 100.22(b) of title 11, Code of Federal Regulations.”). In light of this 

congressional enactment singling out the Commission’s express-advocacy 

regulation for protection, Free Speech’s statutory-authority argument is 

makeweight at best.12

B. PAC Status Entails Constitutional Disclosure Requirements, Not 

Spending Limits, and the Commission’s Method of Determining 

Such Status Is Constitutional 

1. FECA’s Reporting Requirements for PACs Are 

Constitutional 

As explained supra p. 6, a “political committee” includes any organization 

that receives more than $1,000 in contributions or more makes more than $1,000 in 

expenditures, 2 U.S.C. § 431(4)(A), and is “under the control of a candidate” or 

                                                           

12 The two decisions Free Speech cites to support this argument have been 

superseded. (App. 26 (citing Me. Right to Life Comm. v. FEC, 914 F. Supp. 8 (D. 

Me. 1995), aff’d per curiam, 98 F.3d 1 (1st Cir. 1996); Right to Life of Dutchess 

Cnty. Inc. v. FEC, 6 F. Supp. 2d 248 (S.D.N.Y. 1998)).) These decisions predated 

both Congress’s explicit protection of the regulation when it enacted BCRA and 

the Supreme Court’s subsequent recognition in WRTL and Citizens United that 

communications susceptible of no reasonable interpretation other than as appeals 

to elect or defeat a candidate are functionally equivalent to express advocacy. 

Citizens United, 130 S. Ct. at 890; WRTL, 551 U.S. at 470. 

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has as its “major purpose” “the nomination or election of a candidate,” Buckley, 

424 U.S. at 79. FECA imposes on PACs reporting obligations, 2 U.S.C. § 434, 

which, like all disclosure requirements, are subject to exacting scrutiny. Herrera, 

611 F.3d at 676; RTAA, 681 F.3d at 548-49; Madigan, 697 F.3d at 477; McKee, 

649 F.3d at 55-57; Brumsickle, 624 F.3d at 1003-05; SpeechNow, 599 F.3d at 696-

98.13 FECA imposes no limit on what PACs can spend on independent campaignrelated speech. 

FECA’s disclosure requirements for PACs are constitutional because they 

“directly serve substantial governmental interests,” Buckley, 424 U.S. at 68, by 

furthering the “public . . . interest in knowing who is speaking about a candidate 

and who is funding that speech,” and by “deter[ring] and help[ing] expose 

violations of other campaign finance restrictions, such as those barring 

contributions from foreign corporations or individuals.” SpeechNow, 599 F.3d at 

698. Indeed, “[t]he need for an effective and comprehensive disclosure system is 

especially valuable after Citizens United, since individuals and outside business 

entities may engage in unlimited political advertising so long as they do not 

coordinate tactics with a political campaign or political party.” Madigan, 697 F.3d 

                                                           

13 As discussed supra pp. 22-23, Free Speech’s assertions that the PAC 

disclosure requirements must be the “le[ast] restrictive alternative” (Appellant’s 

Br. 17) and “narrowly tailored” (id. at 42) erroneously import strict-scrutiny 

requirements into the exacting-scrutiny analysis. 

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at 490 (upholding PAC requirements even for groups “whose major purpose is not

electoral politics”).14

Free Speech repeatedly asserts that PAC status and PAC disclosure are “two 

very different regulatory regimes” (Appellant’s Br. 10, 20) because “PAC status is 

not a regime that ‘do[es] not prevent anyone from speaking’” (id. at 39 (alterations 

in original)). As this Court and numerous others have recognized, however, the 

obligations attendant upon PAC status “require disclosure, thus distinguishing 

them from regulations that limit the amount of speech a group may undertake.” 

Herrera, 611 F.3d at 676 (citing Buckley, 424 U.S. at 64); see RTAA, 681 F.3d at 

548-49; Madigan, 697 F.3d at 486-91; McKee, 649 F.3d at 55-57; Brumsickle, 624 

F.3d at 1003-05; SpeechNow, 599 F.3d at 698; Yamada v. Weaver, 872 F. Supp. 2d 

1023, 1048 (D. Haw. 2012) (“Many decisions since Citizens United have analyzed 

various definitions of a ‘political committee,’ which include the burdens associated 

with such classification, and considered them to be ‘disclosure requirements.’” 

(collecting cases)). 

                                                           

14 In Minnesota Citizens Concerned for Life v. Swanson, the Eighth Circuit 

struck down a state statute that imposed PAC reporting requirements on groups 

without any consideration of their major purpose. 692 F.3d 864, 877 (8th Cir. 

2012) (en banc). Contrary to Free Speech’s claim that the voided provision was 

“similar to federal PAC requirements” (Appellant’s Br. 22), the Eighth Circuit 

explicitly distinguished FECA’s constitutional reporting obligations from the 

challenged Minnesota provision. See Swanson, 692 F.3d at 875 nn.9-10 (citing 

SpeechNow). 

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Free Speech’s reliance on the discussion of PAC burdens in Citizens United 

and MCFL is misplaced. Those cases described speaking through a corporate PAC 

as a burdensome alternative to speaking directly with corporate treasury funds. See 

Citizens United, 130 S. Ct. at 897; MCFL, 479 U.S. at 253. That context is 

“significantly different” from the one facing political organizations like Free 

Speech — entities that, after Citizens United and SpeechNow, can directly finance 

advocacy for and against candidates and receive unlimited contributions to do so. 

RTAA, 681 F.3d at 549; see McKee, 649 F.3d at 56 (distinguishing Citizens United

and MCFL as involving statutes that “condition[ed] political speech on the creation 

of a separate organization or fund,” not disclosure requirements). As the Fourth 

Circuit explained in response to an argument similar to Free Speech’s: 

The regulation invalidated in Citizens United required 

corporations to set up a separate PAC with segregated funds 

before making any direct political speech. These corporate 

PACs were subject to several limitations on allowable 

contributions, including a prohibition on the acceptance of 

funds from the corporation itself. The Court accordingly held 

that the option to create a separate corporate PAC did not 

alleviate the burden imposed by § 441b on the corporation’s 

own speech. In contrast, the PAC disclosure requirements at 

issue here neither prevent Real Truth from speaking nor 

“impose [a] ceiling on campaign-related activities.” 

RTAA, 681 F.3d at 549 (citations omitted). The court below thus correctly rejected 

Free Speech’s attempt to “expand the discussion in Citizens United as to the 

formation of a PAC and the burdens imposed upon going through that process” 

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because “those same burdens are [not] analogous in this case and thus do not act as 

a prior restraint or the equivalent of the same.” (App. 488; see also infra pp. 55-

56.) 

Moreover, FECA’s organizational and reporting obligations for PACs do not 

“impose much of an additional burden” in comparison with the reporting 

requirements for independent expenditures and electioneering communications that 

the Supreme Court upheld in Citizens United. SpeechNow, 599 F.3d at 697-98. 

Indeed, relying on Citizens United, the en banc D.C. Circuit upheld the PAC 

reporting requirements as applied to independent-expenditure-only groups like 

Free Speech, noting that the additional reporting requirements that are triggered for 

such a group when it qualifies as a PAC “are minimal.” Id. at 697-98; see also

RTAA, 681 F.3d at 558. Empirical data support the court’s conclusion: Of the 

6,975 PACs that were registered with the Commission as of November 2012, more 

than 2,670 registered after Citizens United was decided in January 2010, and these 

PACs spent more than $687 million on independent expenditures to influence 

federal elections over the past three years.15 Free Speech’s generalized arguments 

                                                           

15 PAC-registration and independent-expenditure figures can be found in the 

FEC’s public databases. See Detailed Files About Candidates, Parties and Other 

Committees; 2011-2012 Committee Master File, 

http://www.fec.gov/finance/disclosure/ftpdet.shtml (last visited Feb. 4, 2013); New 

Statements of Organization, 

http://www.fec.gov/press/press2011/new_form1dt.shtml (last visited Feb. 4, 2013); 

Committee Report Summary, 

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45

about the burdens of PAC status are thus inconsistent with both the significant 

body of case law upholding PAC disclosure requirements in light of Citizens 

United, as well as the sheer quantity of PAC registrations and speech post-dating 

that decision. 

2. The Commission’s Method of Determining a Group’s 

Major Purpose Is Constitutional 

 As the court below correctly recognized, “[a]lthough Buckley . . . create[d] 

the ‘major purpose’ test, it did not mandate a particular methodology for 

determining an organization’s major purpose.” (App. 490-91.) Accordingly, the 

Commission has the administrative discretion to determine PAC status “either 

through categorical rules or through individualized adjudications.” Id. (quoting 

RTAA, 681 F.3d at 556); Shays, 511 F. Supp. 2d at 29-31. 

The Commission’s method of determining on a case-by-case basis whether 

an organization is a political committee — including whether its major purpose is 

the nomination or election of candidates — has been consistent for decades. See 

generally 72 Fed. Reg. 5,595. First, the Commission determines whether the group 

has met the statutory criteria for political-committee status either by making more 

than $1,000 in expenditures or receiving more than $1,000 in contributions. See id.

                                                                                                                                                                                               

http://www.fec.gov/data/CampaignAndCommitteeSummary.do?format=html&elec

tion_yr=2012 (last visited Feb. 4, 2013). At the time of this filing, these databases 

reflect PAC registrations and independent expenditures reported through 

November 2012. 

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at 5,603-04; 2 U.S.C. § 431(4)(A). Only if one of these financial criteria is 

satisfied does the Commission consider the group’s major purpose. In determining 

that major purpose, the Commission consults sources such as the group’s public 

statements, government filings (e.g., IRS notices), charters, and bylaws. See 72 

Fed. Reg. at 5,601, 5,605 (describing sources). Because no two organizations are 

exactly alike, the Commission’s analysis has frequently turned on a group’s 

specific activities, such as its spending on a particular election or issue-advocacy 

campaign.16 See id. at 5,601-02, 5,605. 

All three courts to have considered this methodology (including the district 

court below) have upheld it. Indeed, the Commission’s decision to make PACstatus determinations on a case-by-case basis was specifically challenged and 

upheld in Shays, 511 F. Supp. 2d at 29-31. And the Fourth Circuit in RTAA 

concluded that the Commission’s case-by-case approach to determining an 

organization’s major purpose is “sensible, . . . consistent with Supreme Court 

precedent,” and, most importantly, “constitutional.” RTAA, 681 F.3d at 558. 

                                                           

16 Once again, see supra pp. 37-38, Free Speech erroneously relies on 

enforcement documents that were never adopted by a majority of the Commission. 

Compare Appellant’s Br. 50-51 (citing FEC General Counsel’s report in Matter 

Under Review 5977), with In the Matter of American Leadership Project, MUR 

5977, Certification (Feb. 25, 2009), available at 

http://eqs.nictusa.com/eqsdocsMUR/29044231595.pdf (noting that only two 

Commissioners voted to approve General Counsel’s report) (last visited Feb. 4, 

2013). 

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Free Speech completely ignores RTAA’s instructive analysis, which the 

district court adopted. (App. 491.) Instead, Free Speech attempts to caricature the 

Commission’s approach as permitting “arbitrary and discriminatory . . . 

appl[ication of] the requirements of PAC status to almost any organization [the 

FEC] chooses.” (Appellant’s Br. 38; see also id. at 47-51 (criticizing fact-intensive 

nature of Commission’s inquiry).) But Free Speech conceded below that it is 

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

inquiries are often appropriate.” (App. 47, 49.) And as the Fourth Circuit 

recognized, the “determination of whether the election or defeat of federal 

candidates for office is the major purpose of an organization, and not simply a 

major purpose, is inherently a comparative task, and in most instances it will 

require weighing the importance of some of a group’s activities against others.” 

RTAA, 681 F.3d at 556.17 Indeed, “[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.” Id. at 557; see 

                                                           

17 Free Speech cites North Carolina Right to Life v. Leake, 525 F.3d 274 (4th 

Cir. 2008), but, as Free Speech acknowledges, that case concerned a state law that 

imposed PAC status on groups with “‘a major purpose’ rather than ‘the major 

purpose’ of supporting or opposing a candidate” (Appellant’s Br. 46 (emphases 

added)), and it is therefore inapposite. See RTAA, 681 F.3d at 557 (holding that 

plaintiff’s reliance on Leake in challenge to Commission’s major-purpose 

determination was “misplaced”). Equally irrelevant is Unity08 v. FEC, 596 F.3d 

861 (D.C. Cir. 2010) (cited at Appellant’s Br. 46), which concerned application of 

the major-purpose test to a group that, unlike Free Speech, had not yet identified 

any federal candidates it planned to support or oppose. 

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Koerber v. FEC, 583 F. Supp. 2d 740, 748 (E.D.N.C. 2008) (denying preliminary 

injunction in challenge to Commission’s approach to determining PAC status and 

noting that “an organization’s ‘major purpose’ is inherently comparative and 

necessarily requires an understanding of an organization’s overall activities, as 

opposed to its stated purpose”); FEC v. Malenick, 310 F. Supp. 2d 230, 234-37 

(D.D.C. 2004) (considering organization’s statements in brochures and “fax alerts” 

sent to potential and actual contributors, as well as its spending influencing federal 

elections); FEC v. GOPAC, Inc., 917 F. Supp. 851, 859 (D.D.C. 1996) (“The 

organization’s purpose may be evidenced by its public statements of its purpose or 

by other means, such as its expenditures in cash or in kind to or for the benefit of a 

particular candidate or candidates.”); id. at 864, 866 (describing organization’s 

meetings and “Political Strategy Campaign Plan and Budget”).18 These decisions 

therefore belie Free Speech’s attack on the Commission’s case-by-case 

methodology, as well as Free Speech’s unsupported assertion (Appellant’s Br. 52) 

that the major-purpose inquiry must be limited to “the founding documents of an 

organization and to public statements.” 

                                                           

18 GOPAC (which Free Speech repeatedly and incorrectly labels as a D.C. 

Circuit decision (Appellant’s Br. 44, 46, 49)), did not “strike down” any attempt to 

“expand the capture of the [major-purpose] test” (id. at 46). Rather, the district 

court in that case itself undertook a highly fact-intensive inquiry to determine 

GOPAC’s major purpose, see 917 F. Supp. at 853-58, ultimately concluding that 

the organization did not have as its major purpose the election of federal 

candidates, id. at 862-66. 

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 The Commission’s approach is also entirely consistent with the law of this 

Court. Free Speech cites (Appellant’s Br. 41-44) Coffman and Herrera, which 

struck down state statutes that, unlike the federal policy challenged here, defined 

groups as PACs based solely on their meeting an expenditure threshold, without 

any consideration of their major purpose. Coffman, 498 F.3d at 1153; Herrera, 

611 F.3d at 673. In describing the major-purpose requirement missing from these 

state provisions, Coffman and Herrera noted the Supreme Court’s endorsement of 

“two methods to determine an organization’s ‘major purpose’: (1) examination of 

the organization’s central organizational purpose; or (2) comparison of the 

organization’s independent [express advocacy] spending with overall spending.” 

Coffman, 498 F.3d at 1152 (citing MCFL, 479 U.S. at 252 n.6); Herrera, 611 F.3d 

at 677-78 (citing Coffman). Because the Commission determines a group’s major 

purpose by analyzing each “organization’s central organizational purpose,” the 

Commission’s approach conforms not only to Buckley, but also to this Court’s 

relevant precedent. Although Free Speech characterizes (Appellant’s Br. 48) the 

“central organizational purpose” approach to determining a group’s major purpose 

as “confusi[ng]” and “indeed, bewilder[ing]” — especially in comparison to the 

“simple math” of adding up a group’s spending — that standard is the law of this 

Court. 

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Free Speech’s discussion (Appellant’s Br. 41-43) of Sampson v. Buescher, 

625 F.3d 1247 (10th Cir. 2010), and American Constitutional Law Foundation v. 

Meyer, 120 F.3d 1092 (10th Cir. 1997) (“ACLF”), aff’d sub nom., Buckley v. Am. 

Constitutional Law Found., 525 U.S. 182 (1999), is completely off-point. Both of 

those decisions addressed disclosure laws for persons or groups involved in ballot 

initiatives, which this Court in both cases emphatically distinguished from 

candidate elections: 

The great bulk of th[e] [judicial] decisions [about disclosure 

requirements] . . . concern committees that are working for or 

against candidates for public office. Reporting requirements 

are justified as necessary . . . to give the electorate useful 

information concerning . . . those to whom the candidate is 

likely to be beholden. 

At issue on this appeal is a different type of campaign 

committee, . . . one seeking to prevail on a ballot initiative. 

Sampson, 625 F.3d at 1248-49 (emphases added); see also id. at 1255-57 

(distinguishing government’s “legitimate reasons for regulating candidate 

campaigns” from ballot initiatives); ACLF, 120 F.3d at 1104-05 (holding that 

reporting and disclosure provisions upheld in Buckley were “dissimilar” from 

disclosure requirements for ballot circulators because the former “regulate 

candidate elections but [the law challenged in ACLF] does not”). 

Because the disclosure interests that the Supreme Court found sufficient in 

Buckley are different from those relevant to groups advocating for or against ballot 

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initiatives — specifically, because “‘[t]he risk of corruption perceived in cases 

involving candidate elections . . . simply is not present in a popular vote on a 

public issue,’” ACLF, 120 F.3d at 1105 (quoting Bellotti, 435 U.S. at 790) — 

Sampson and ACLF by their own terms have no application here. Free Speech 

nonetheless claims that Citizens United’s validation of disclosure for all 

electioneering communications somehow undermines this Court’s (and thus the 

Supreme Court’s) distinction between candidate and ballot advocacy. (See

Appellant’s Br. 43.) That assertion makes no sense, given that Citizens United had 

nothing to do with ballot initiatives. See 130 S. Ct. at 922 (Roberts, C.J., 

concurring) (“Bellotti involved a referendum rather than a candidate election, and 

. . . Bellotti itself noted this factual distinction . . . .”). In any event, the Supreme 

Court has upheld most disclosure requirements even in the context of ballot 

initiatives, e.g., Reed, 130 S. Ct. 2811; Bellotti, 435 U.S. at 792 n.32, and, as 

discussed above, Citizens United expressly “reject[ed] th[e] contention” that 

disclosure requirements can only reach express advocacy or its functional 

equivalent, 130 S. Ct. at 915-16. Thus, nothing in the ballot-initiative cases Free 

Speech relies on or the more relevant precedent discussed above calls into question 

the Commission’s constitutional implementation of the Supreme Court’s majorpurpose requirement. 

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C. The Commission’s Solicitation Standard is Constitutional 

FECA requires disclaimers for communications that “solicit[] any 

contribution,” 2 U.S.C. § 441d(a), but it does not define when a request for 

donations constitutes such a solicitation. In SEF, the Second Circuit held that a 

communication may “fall within the reach of § 441d(a) if it contains solicitations 

clearly indicating that the contributions will be targeted to the election or defeat of 

a clearly identified candidate for federal office.” 65 F.3d at 295. The court 

analyzed a solicitation that was distributed shortly before the 1984 presidential 

election and that stated, “‘[Y]our special election-year contribution today will help 

us communicate your views to hundreds of thousands of members of the voting 

public, letting them know why Ronald Reagan and his anti-people policies must be 

stopped.’” Id. at 288-89, 295. The Second Circuit concluded that this solicitation 

left “no doubt that that the funds contributed would be used to advocate President 

Reagan’s defeat at the polls, [and] not simply to criticize his policies during the 

election year,” and it was thus properly subject to FECA’s disclaimer requirements 

for solicitations for contributions. Id. at 295. 

The Commission and Free Speech agree that the Second Circuit’s test for 

solicitations is the proper standard for determining whether section 441d applies to 

a particular request for donations. (Appellant’s Br. 35-36 (invoking SEF standard); 

App. 290 (Advisory Opinion applying SEF standard to Free Speech’s proposed 

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53

donation requests).) Despite the parties’ agreement, however, Free Speech 

baselessly accuses the Commission of “maint[aining] . . . hazy, ever-changing 

standards to trigger regulation of solicitations.” (Appellant’s Br. 37.) This 

assertion appears to rest purely on Free Speech’s disagreement with certain 

Commissioners’ analysis of Free Speech’s proposed “War Chest” and “Make 

Them Listen” donation requests. (See id.) But, under the SEF standard, it would 

have been reasonable for the Commission to conclude that these two donation 

requests are solicitations for contributions. (See App. 210-14 (describing analysis 

and conclusions of Commissioners who voted to find that communications were 

solicitations).) The language in both “War Chest” and “Make Them Listen” 

“make[s] plain that funds received in response to the request[s] will be used to 

advocate the electoral defeat of President Obama,” i.e. by “beating back the Obama 

agenda” and “his $1 billion war chest,” and “win[ning] big this fall.” (App. 211, 

213.) Whatever quarrel Free Speech may have with the particulars of this analysis, 

the Commissioners who adopted it reasonably applied SEF, and the Commission’s 

use of that standard constitutionally determines — both facially and as-applied — 

whether communications are solicitations. 

Free Speech also suggests that the three Commissioners who voted to find 

that its requests for donations were solicitations violated EMILY’s List v. FEC, 581 

F.3d 1 (D.C. Cir. 2009), by “resurrect[ing]” 11 C.F.R. § 100.57 — the 

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54

Commission’s former regulatory implementation of the SEF standard. 

(Appellant’s Br. 36-37.) That regulation provided that “all funds given in response 

to solicitations indicating that ‘any portion’ of the funds received will be used to 

support or oppose the election of a federal candidate” constituted regulable 

“contributions” under FECA, even if the solicitation explained that some of the 

money would be used for non-federal elections. EMILY’s List, 581 F.3d at 21. 

The D.C. Circuit struck down this regulation because it brought non-federal

donations within the reach of FECA’s “contribution” definition. See id. The 

Commission therefore announced that, pending formal removal of section 100.57, 

it “will not be enforced.” Press Release, FEC Statement on the D.C. Circuit Court 

of Appeals Decision in EMILY’s List v. FEC, 

http://www.fec.gov/press/press2010/20100112EmilyList.shtml (Jan. 12, 2010). 

But EMILY’s List did not undermine — or even address — SEF’s holding “that a 

solicitation that indicates that donated funds will be used to support or oppose the 

election of a clearly identified federal candidate results in ‘contributions.’” (App. 

210-11 n.6.) Thus, the fact that the Commission has ceased applying section 

100.57 because of its application to non-federal donations has no bearing on the 

continued application of the SEF standard for defining solicitations, either in 

general or as applied to Free Speech’s donation requests. 

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Finally, Free Speech suggests that the Commission’s solicitation standard 

hinders Free Speech’s ability “to request donations supportive of its mission.” 

(Appellant’s Br. 34.) Free Speech is free, however, to spend unlimited funds on its 

solicitations and to solicit unlimited funds for its express advocacy, so the cases it 

cites concerning fundraising restrictions are inapposite. More importantly, the 

disclaimers required for solicitations are substantially related to the governmental 

interest in providing information to the public. As Citizens United explained, “[a]t 

the very least, . . . disclaimers avoid confusion by making clear that 

[communications] are not funded by a candidate or political party.” 130 S. Ct. at 

915. The Second Circuit in SEF similarly recognized that the disclaimer 

requirements for solicitations “serve[] important First Amendment values. 

Potential contributors are entitled to know that they are supporting independent 

critics of a candidate and not a group that may be in league with that candidate’s 

opponent.” 65 F.3d at 296. Disclaimers for solicitations are “‘a reasonable and 

minimally restrictive method’ of ensuring open electoral competition that does not 

unduly trench upon [individuals’] First Amendment rights.” Id. (quoting Buckley, 

424 U.S. at 82). 

D. No Provision or Policy at Issue in this Case Imposes a “Prior 

Restraint” on Speech 

There is no basis for Free Speech’s assertion that the regulation or policies at 

issue here function as a “prior restraint” on its speech. (Appellant’s Br. 53-56.) 

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“At the core of [Free Speech’s] challenges . . . are rules and policies which 

implement only . . . disclosure requirements” (App. 485) — requirements that 

“‘impose no ceiling on campaign-related activities’ and ‘do not prevent anyone 

from speaking.’” Citizens United, 130 S. Ct. at 914-15 (quoting Buckley, 424 U.S. 

at 64; McConnell, 540 U.S. at 201). Although Citizens United described 

requirements that actually prohibited speech as “the equivalent of prior restraint,” 

id. at 896, the Court refused to “import” its analysis regarding restrictions on 

independent expenditures into the separate context of disclosure requirements, id. 

at 915. Thus, because FECA’s disclosure requirements indisputably leave Free 

Speech free to run all of its ads and distribute all of its donation requests, Free 

Speech’s entire discussion of prior restraints is misplaced. 

III. FREE SPEECH FAILS TO DEMONSTRATE IRREPARABLE HARM

Free Speech has failed to identify any irreparable harm that would result 

from compliance with FECA’s registration and disclosure requirements. As 

demonstrated above, the regulation and policies challenged here do not silence any 

speech. Because Free Speech has not suffered any “loss of First Amendment 

freedoms,” the presumption of irreparable harm from a law that “deprives” speech 

rights, Elrod v. Burns, 427 U.S. 347, 373 (1976), is inapplicable. While Free 

Speech complains about “having to expend time and money complying with” the 

disclosure requirements (App. 77), such “simple economic loss[es]” are not 

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irreparable. Schrier v. Univ. of Colo., 427 F.3d 1253, 1267 (10th Cir. 2005). And 

Free Speech has not produced any evidence — or even alleged specific facts — 

demonstrating that complying with the PAC registration and reporting 

requirements would be unduly burdensome to itself. See Tooker, 795 F. Supp. 2d 

at 862 n.16 (noting plaintiff’s failure to explain how challenged disclosure 

requirements “‘impinge[ ] upon its associational freedoms’” or why plaintiff “by 

its nature . . . is unable to comply with [state PAC] requirements’” (citing 

Brumsickle, 624 F.3d at 1021-22)). 

The Supreme Court has repeatedly held that a party claiming irreparable 

harm from disclosure must show a “reasonable probability” that there will be 

“threats, harassment, and reprisals” against the entities or people whose identities 

are disclosed. See Citizens United, 130 S. Ct. at 914; McConnell, 540 U.S. at 197-

99. Serious harm of this kind has been demonstrated only by organizations — 

such as the NAACP and the Socialist Workers Party — whose members faced 

actual, documented danger at the relevant time. See McConnell, 540 U.S. at 

198-99 (quoting Brown v. Socialist Workers ’74 Campaign Comm., 459 U.S 87 

(1982), in which Court found “‘reasonable probability’” of “‘threats, harassment, 

and reprisals’”); Buckley, 424 U.S. at 69 (noting that NAACP members faced 

“economic reprisal, loss of employment, threat of physical coercion, and other 

manifestations of public hostility”) (citation omitted); see also Nat’l Ass’n of Mfrs. 

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58

v. Taylor, 549 F. Supp. 2d 68, 75-76 (D.D.C. 2008) (trade association suffers no 

irreparable harm in disclosing membership list under lobbying-disclosure 

provisions). Because Free Speech has not even alleged such harm — much less 

demonstrated a “reasonable probability” thereof — its challenge to FECA’s 

disclosure requirements is “foreclose[d].” McConnell, 540 U.S. at 197-98. 

IV. THE BALANCE OF HARMS FAVORS THE COMMISSION, AND 

AN INJUNCTION WOULD BE ADVERSE TO THE PUBLIC 

INTEREST

In contrast to the relatively modest administrative burdens Free Speech 

seeks to avoid, enjoining the Commission from enforcing its regulation and 

policies would substantially harm the Commission and the public. A “presumption 

of constitutionality . . . attaches to every Act of Congress,” and that presumption is 

“an equity to be considered in favor of [the government] in balancing hardships.” 

Walters, 468 U.S. at 1324. 

The public harm that would have resulted from enjoining the Commission’s 

enforcement of the relevant disclosure requirements in the days leading up to a 

nationwide election far outweighs Free Speech’s interest in avoiding the 

administrative burdens of complying with those requirements. Indeed, for the 

same reasons that Free Speech wanted to distribute its ads at the peak of the 2012 

election season, the public had “a heightened interest in knowing who was trying 

to sway [its] views on the [candidates] and how much they were willing to spend to 

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59

achieve that goal.”19 Brumsickle, 624 F.3d at 1019. The requested injunction 

could have caused confusion among political actors and undermined the public’s 

confidence in the federal campaign finance system. See Purcell, 549 U.S. at 4-5 

(“Court orders affecting elections . . . can themselves result in voter confusion . . . . 

As an election draws closer, that risk will increase.”); Smithson, 750 F. Supp. 2d at 

1049 (declining to impose preliminary injunction that would “radically change . . . 

campaign finance rules mid-stream during an election”). 

Free Speech has failed to make any showing, much less a strong one, that 

the balance of harms tips in its favor. See Northern Natural Gas, 697 F.3d at 1266. 

For this reason — as well as all of the others discussed above — the district court’s 

denial of Free Speech’s motion for a preliminary injunction should be affirmed. 

CONCLUSION 

 Three decades of judicial opinions culminating in Citizens United

indisputably establish the importance of the government’s interest in ensuring 

public access to information regarding the financing of candidate advocacy and 

other campaign activity. The Commission’s regulatory definition of express 

                                                           

19 In asking this Court to issue an “emergency” injunction pending appeal, Free 

Speech tellingly described the then-imminent general election as its “last 

meaningful chance to speak.” (Appellant’s Motion for Emergency Injunction on 

Appeal, Local Rule 8.2 and 27.3(C) Certificates (Oct. 24, 2012); id. at 4.) Free 

Speech’s admission that the proposed advertisements would not be “meaningful” 

after the 2012 election appears to undermine the fundamental premise of Free 

Speech’s claims — i.e., that its communications are not candidate advocacy. 

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60

advocacy, its method of determining political-committee status, and its standard 

for whether a request for donations is a solicitation for contributions each 

implement Congress’s statutory directives in this area narrowly and transparently. 

Nothing in the Constitution prohibits these reasonable means of furthering the First 

Amendment goal of promoting an informed public. Free Speech’s desire to avoid 

the logistics of compliance does not nearly outweigh the public harm that would 

result from the requested injunction. 

The district court’s order denying Free Speech’s motion for a preliminary 

injunction should be affirmed. 

Respectfully submitted, 

ANTHONY HERMAN 

General Counsel 

 

LISA J. STEVENSON 

Deputy General Counsel – Law 

DAVID KOLKER 

Associate General Counsel 

 ADAV NOTI 

 Acting Assistant General Counsel 

 s/ Erin Chlopak

 ERIN CHLOPAK 

Attorney 

Federal Election Commission 

999 E Street, N.W. 

 Washington, D.C. 20463 

February 4, 2013 (202) 694-1650 

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STATEMENT REGARDING ORAL ARGUMENT 

Because this case challenges the constitutionality of a federal regulation and 

two federal agency policies, the Commission believes that oral argument is 

warranted. 

CERTIFICATE OF DIGITAL SUBMISSION 

I certify that no privacy redactions were required for this Brief and that the 

digital ECF version of the foregoing is an exact copy of the written document filed 

with the Clerk of the Court. I further certify that the digital submission has been 

scanned for viruses with the most recent version of McAfee VirusScan Enterprise 

Version 8.7i, a commercial virus scanning program, and according to the program, 

the digital submission is virus-free. 

s/ Erin Chlopak

Erin Chlopak 

 Attorney 

Federal Election Commission 

999 E Street, NW 

Washington, DC 20463 

Appellate Case: 12-8078 Document: 01018996042 Date Filed: 02/04/2013 Page: 73 
CERTIFICATE OF COMPLIANCE 

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

32(a)(7)(B) because the brief contains 13,873 words, excluding the parts of the 

brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii) and 10th Cir. Rule 23(b). 

The brief also complies with the typeface requirements of Fed. R. App. P. 

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

brief uses the proportionally spaced typeface Microsoft Word 14-point Times New 

Roman. 

s/ Erin Chlopak

Erin Chlopak 

 Attorney 

Federal Election Commission 

999 E Street, NW 

Washington, DC 20463 

Appellate Case: 12-8078 Document: 01018996042 Date Filed: 02/04/2013 Page: 74 
CERTIFICATE OF SERVICE 

I hereby certify that on this 4th day of February 2013, I caused appellee 

Federal Election Commission’s brief in Free Speech v. FEC, No. 12-8078, to be 

filed with the Clerk of the Court by the electronic CM/ECF System, thereby 

effectuating service on the following: 

Benjamin Barr 

10737 Hunting Ln. 

Rockville, MD 20850 

(202) 595-4671 

Benjamin.barr@gmail.com 

Stephen Klein 

Wyoming Liberty Group 

1902 Thomes Ave. 

Suite 201 

Cheyenne, WY 82001 

(307) 632-7020 

Stephen.klein@wyliberty.org 

Jack Speight 

4021 Snyder Ave. 

Cheyenne, WY 82001 

(307) 635-1239 

jbspeight@gmail.com 

I further certify that I caused 7 copies to be delivered to the Clerk of the Court by 

FedEx Overnight Delivery. 

s/ Erin Chlopak

Erin Chlopak 

 Attorney 

Federal Election Commission 

999 E Street, NW 

Washington, DC 20463 

Appellate Case: 12-8078 Document: 01018996042 Date Filed: 02/04/2013 Page: 75