No. 08-2257 

 

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

 

HOLLY ANN KOERBER and COMMITTEE 

FOR TRUTH IN POLITICS, INC., 

Plaintiffs-Appellants,

v. 

FEDERAL ELECTION COMMISSION, 

Defendant-Appellee. 

 

On Appeal from the United States District Court for the Eastern District of 

North Carolina, Northern Division, Case No. 2:08-cv-00039 

 

BRIEF AMICI CURIAE FOR CAMPAIGN LEGAL CENTER AND 

DEMOCRACY 21 IN SUPPORT OF DEFENDANT-APPELLEE 

AND URGING AFFIRMANCE 

 

Donald J. Simon 

(D.C. Bar No. 256388) 

SONOSKY, CHAMBERS, SACHSE

ENDRESON & PERRY, LLP 

1425 K Street, N.W., Suite 600 

Washington, D.C. 20005 

(202) 682-0240 

Fred Wertheimer 

(D.C. Bar No. 154211) 

DEMOCRACY 21 

1875 I Street, N.W., Suite 500 

Washington, D.C. 20005 

(202) 429-2008 

Counsel for Amicus Curiae

 Democracy 21

J. Gerald Hebert 

(VA Bar No. 38432) 

Tara Malloy 

(NY Bar No. 4251005) 

Paul S. Ryan 

(D.C. Bar No. 502514) 

THE CAMPAIGN LEGAL CENTER

1640 Rhode Island Ave., N.W. 

Suite 650 

Washington, D.C. 20036 

(202) 736-2200 

Counsel for Amicus Curiae

 Campaign Legal Center 

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UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

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TABLE OF CONTENTS 

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

INTERESTS OF AMICI CURIAE......................................................................... 1 

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

ARGUMENT ........................................................................................................... 4 

I. CTP’s Attempt to Create an “Unambiguously Campaign Related” 

Test Lacks Any Legal Basis and Should Be Rejected. ......................... 4 

II. The Electioneering Communication Disclosure Requirements Are 

Constitutional........................................................................................... 8 

A. McConnell Upheld the Electioneering Communication 

Disclosure Requirements on Their Face. ........................................ 9 

1. Contrary to CTP’s Allegations, the Disclosure 

Requirements Are Subject to Intermediate Scrutiny, Not 

Strict Scrutiny...................................................................... 10 

2. McConnell Made Clear That the Electioneering 

Communication Disclosure Requirements Are Supported

by Important Governmental Interests ................................. 12 

B. WRTL II in No Way Undercuts the McConnell Decision 

Upholding the Electioneering Communication Disclosure 

Requirements as to the Entire Range of Electioneering 

Communications............................................................................ 14 

C. Compelled Disclosure of “Issue” Advocacy Is Constitutional. .... 18 

D. The Electioneering Communication Disclosure Requirements 

Are Constitutional as Applied to CTP’s Advertisements. ............ 22 

1. BCRA’s Disclosure Requirements Serve the 

Government’s Informational Interest.................................. 23 

2. BCRA’s Disclosure Requirements Serve the 

Government’s Enforcement Interest................................... 25 

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III. The FEC’s PAC-Status Enforcement Policy and Application of 

the “Major Purpose” Test Is Constitutional....................................... 26 

CONCLUSION...................................................................................................... 31 

CERTIFICATE OF COMPLIANCE

CERTIFICATE OF FILING AND PROOF OF SERVICE 

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 iii

TABLE OF AUTHORITIES 

Cases: 

Buckley v. Am. Constitutional Law Found., 

525 U.S. 182 (1999)..................................................................................... 20, 24 

Buckley v. Valeo, 

424 U.S. 1 (1976)........................................................................................ passim 

Citizens against Rent Control v. City of Berkeley, 

454 U.S. 290 (1981)........................................................................................... 21 

Citizens United v. FEC, 

530 F. Supp. 2d 274 (D.D.C. 2008)............................................................... 3, 17 

Commission on Independent Colleges and Universities v. New York 

Temporary State Commission, 534 F. Supp. 489 (N.D.N.Y. 1982) .................. 19 

FEC v. Beaumont, 

 539 U.S. 146 (2003)............................................................................................ 7 

FEC v. GOPAC, 

917 F. Supp. 851 (D.D.C. 1996) ........................................................................ 30 

FEC v. Malenick, 

310 F. Supp. 2d 230 (D.D.C. 2004)................................................................... 30

FEC v. Massachusetts Citizens for Life, 

479 U.S. 238 (1986)........................................................................................... 25 

FEC v. Wisconsin Right to Life, 

127 S. Ct. 2652 (2007) ................................................................................ passim 

First National Bank of Boston v. Bellotti, 

435 U.S. 765 (1978)..................................................................................... 20, 21 

Florida League of Prof'l Lobbyists, Inc. v. Meggs, 

87 F.3d 457 (11th Cir. 1996)........................................................................ 19, 20 

McConnell v. FEC, 

540 U.S. 93 (2003)...................................................................................... passim 

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McIntyre v. Ohio Elections Commission, 

514 U.S. 334 (1995)........................................................................................... 11 

Minn. State Ethical Practices Bd. v. NRA, 

761 F.2d 509 (8th Cir. 1985)........................................................................ 19, 20 

National Association of Manufacturers v. Taylor, 

549 F. Supp. 2d 33 (D.D.C. 2008) .................................................................... 14 

North Carolina Right to Life v. Leake, 

525 F.3d 274 (4th Cir. 2008).......................................................................... 7, 30 

Ohio Right to Life Society, Inc. v. Ohio Elections Commission, 

No. 2:08-cv-00492, 2008 WL 4186312 (S.D. Ohio Sept. 5, 2008)......... 3, 12, 18 

Shays v. FEC, 

511 F. Supp. 2d 19 (D.D.C. 2007) ............................................................... 29, 30 

The Real Truth Against Obama v. FEC, 

No. 3:08-CV-483, 2008 WL 4416282 (E.D. Va. Sept. 24, 2008) ........... 4, 26, 31 

U.S. v. Harriss, 

347 U.S. 612 (1954)......................................................................... 18, 19, 20, 24 

Statutes and Legislative Materials: 

Bipartisan Campaign Reform Act of 2002, 

 Pub. L. No. 107–155, 116 Stat. 81 (2002) ........................................................1-2

2 U.S.C. § 431(4) .................................................................................................... 27 

2 U.S.C. § 434(f)(3) .................................................................................................. 2 

2 U.S.C. § 441a(a)(7) .............................................................................................. 26 

2 U.S.C. § 441b ....................................................................................................... 26 

2 U.S.C. § 441d ......................................................................................................... 2 

Administrative Materials: 

11 C.F.R. § 109.21(c).............................................................................................. 26 

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FEC Notice 2007-3, “Political Committee Status,” 72 Fed. Reg. 5595 

(Feb. 7, 2007) ..................................................................................................... 28 

Miscellaneous Resources: 

Amended Verified Complaint, WRTL v. FEC, No. 04-1260, 2004 WL 

3753200 (D.D.C. Sept. 1, 2004) ........................................................................ 14 

Brief of Appellee, FEC v. WRTL, No. 04-1260, 2007 WL 868545 

(Mar. 22, 2007) .............................................................................................14-15 

GAO REPORT, INFORMATION ON STATES’ LOBBYING DISCLOSURE 

REQUIREMENTS (May 2, 1997)........................................................................... 20 

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1

INTERESTS OF AMICI CURIAE

Amici curiae Campaign Legal Center and Democracy 21 are nonpartisan 

organizations that work to strengthen the laws governing campaign finance. Amici

have participated in litigation to defend the specific laws at issue here, including 

representing intervening-defendants in McConnell v. FEC, 540 U.S. 93 (2003) and 

FEC v. Wisconsin Right to Life, 127 S. Ct. 2652 (2007) (“WRTL II”), and also 

participated in this case below. Amici thus have a demonstrated interest in the 

issues raised by this proceeding. 

SUMMARY OF ARGUMENT 

Appellants Holly Ann Koerber and the Committee For Truth In Politics, Inc. 

(collectively “CTP”) ran two political advertisements one month before the 2008 

federal elections attacking the positions of then-Democratic Presidential nominee, 

Barack Obama, on the hot-button topics of partial birth abortion and the 

punishment of sex offenders. Appellants Brief (“Br.”) at 5; Complaint at ¶¶ 31-43. 

CTP did so without fully disclosing its identity or the identity of its donors. 

Complaint at ¶¶ 36, 40. 

Running these attack ads anonymously meant CTP violated the disclosure 

requirements for “electioneering communications”1

 under the Bipartisan Campaign 

 

1

 “Electioneering communication” is defined as a “broadcast, cable, or 

satellite communication” that “refers to a clearly identified federal candidate,” is 

“targeted to the relevant electorate,” and airs within sixty days of general election 

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2

Reform Act of 2002 (BCRA), Pub. L. No. 107–155, 116 Stat. 81 (2002). These 

include both reporting requirements, see 2 U.S.C. § 434(f), and disclaimer 

requirements, see 2 U.S.C. § 441d. CTP accordingly challenged the 

constitutionality of the disclosure requirements as applied to its advertisements, 

although these requirements had been upheld by the Supreme Court in McConnell

just five years ago by an 8-1 vote. 540 U.S. at 196, 231, 321. 

The basis for CTP’s challenge is the Supreme Court’s 2007 decision in 

WRTL II, which held that BCRA’s restrictions on corporate and union expenditures 

for electioneering communications are unconstitutional as applied to any 

communications that are not express advocacy or its “functional equivalent.” 127 

S. Ct. at 2667. CTP argues that WRTL II implicitly immunized from any

regulation electioneering communications that do not meet the standard for express 

advocacy or its functional equivalent. According to CTP, such communications 

should therefore be exempt from BCRA’s reporting and disclaimer requirements, 

although this result would be directly contrary to the holding of McConnell. 

This argument is an overreach. The WRTL II Court made no mention of the 

disclosure of electioneering communications; it examined only the funding 

restrictions for such ads. The WRTL II decision therefore provides no basis to 

question the validity of the McConnell decision, which specifically reviewed the 

 

or thirty days of a primary election or nominating convention. See 2 U.S.C. § 

434(f)(3). 

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electioneering communication disclosure requirements and upheld them in their 

entirety. Furthermore, CTP’s argument that only “unambiguously campaign 

related” speech can be subject to regulation completely disregards the many laws 

requiring disclosure of issue speech that have been upheld by the Supreme Court 

and lower courts. 

On these grounds, the district court below correctly denied CTP’s motion for 

a preliminary injunction, finding that “the McConnell Court ... held that 

‘electioneering communication’ was neither vague nor overbroad for the purposes 

of [the disclosure requirements]” and CTP “presented no reason to warrant a 

departure from the reasoning and outcome of McConnell.” Order, No. 2:08-cv00039 (Oct. 29, 2009), slip op. at 9, 10. The same conclusion was reached by a 

three-judge district court in Washington, DC and by a district court in Ohio, both 

of which rejected almost identical challenges to the BCRA’s disclosure 

requirements. Citizens United v. FEC, 530 F. Supp. 2d 274 (D.D.C. 2008) (three 

judge court) (granting summary judgment for FEC), cert granted No. 08-205 (S. 

Ct. 2008); Ohio Right to Life Society, Inc. v. Ohio Elections Commission, No. 2:08-

cv-00492, 2008 WL 4186312 (S.D. Ohio Sept. 5, 2008) (“ORTL”) (granting in part 

and denying in part motion for preliminary injunction). 

Also without merit is CTP’s claim that the FEC’s methodology for 

determining “political committee” status is unconstitutional. The FEC’s “PAC 

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4

Enforcement Policy” and its application of the “major purpose” test is consistent 

with the Supreme Court’s constitutional analysis of “political committees” in 

Buckley v. Valeo, 424 U.S. 1, 78-79 (1976). The district court below therefore 

refused to enjoin the FEC’s policy. Slip op. at 11-16. CTP’s argument on this 

point has also been explicitly rejected by another district court in this Circuit, and 

also on a preliminary basis by this Court, in The Real Truth Against Obama v. 

FEC, No. 3-08-CV-483, 2008 WL 4416282 (E.D. Va. Sept. 24, 2008), motion for 

inj. pending appeal den. No. 08-1977 (4th Cir. Oct. 1, 2008) (“RTAO”). 

For all these reasons, amici respectfully submit that the district court below 

was correct in denying CTP’s motion for a preliminary injunction and its decision 

should be affirmed.

ARGUMENT 

I. CTP’s Attempt to Create an “Unambiguously Campaign Related” 

Test Lacks Any Legal Basis and Should Be Rejected.

CTP asserts that the threshold test in the review of any campaign finance 

regulation is whether the regulated speech is “unambiguously related to the 

campaign of a particular federal candidate.” See, e.g., Br. at 7, 20-23. In CTP’s 

view, only if speech meets this standard can it be subject to any type of regulation 

under the campaign finance laws. Id. at 20. According to CTP, BCRA’s 

disclosure requirements and the FEC’s “PAC-status enforcement policy,” both fail 

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the “unambiguously campaign related” test and therefore violate the First 

Amendment.2

The problem with CTP’s proposed test is that it has no legal basis. The 

“unambiguously campaign related” language appeared in Buckley not as some sort 

of foundational test for the constitutionality of all campaign finance laws, but 

rather as an aside in the Court’s discussion of the statutory term “expenditure.” 

424 U.S. at 79-80. To address “problems of vagueness,” the Buckley Court 

construed “expenditure” in certain contexts to encompass only “funds used for 

communications that expressly advocate the election or defeat of a clearly 

identified candidate.” Buckley, 424 U.S. at 76, 80 (emphasis added). The Court 

then stated, in passing, that “this reading is directed precisely to that spending that 

is unambiguously related to the campaign of a particular federal candidate.” Id. at 

80. Thus, the constitutional “test” created by the Buckley Court in this passage was 

the express advocacy standard; the “unambiguously campaign related” phrase was 

simply a description of how this standard operated in the context of Buckley. 

Unsurprisingly, the phrase “unambiguously campaign related,” which CTP 

 

2

 In addition to creating the “unambiguously campaign related” test, CTP also 

devotes twelve pages to an attempt to manufacture a new “WRTL II Standard” for 

preliminary injunctions in First Amendment cases. See Br. at 9-20. Despite its 

length, however, CTP’s argument does not cite a single legal authority that 

explicitly supports a “First Amendment” version of the standard for a preliminary 

injunction. Instead, CTP cobbles together a series of quotes from WRTL II and 

other campaign finance cases that do not address the standards for injunctive relief. 

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promotes as the overarching constitutional test established by Buckley, has not 

been so much as mentioned, much less applied, in any Supreme Court case since 

Buckley. 

Thus, there is no legal foundation for CTP’s proposed test. And in any 

event, the meaning and application of this test is entirely unclear. Indeed, CTP 

claims that the phrase entails a number of additional constitutional standards, 

including the subsequent test articulated in WRTL II for “the functional equivalent 

of express advocacy,” as well as the “major purpose” test for political committee 

status. Br. at 25, 28. At other points in its argument, CTP appears to employ the 

phrase as shorthand for “express advocacy.” Br. at 26, 32. Essentially, 

“unambiguously campaign related,” as used by CTP, means whatever CTP wants it 

to mean. This is not a valid judicial standard for review. 

At bottom, the “unambiguously campaign related” test is simply CTP’s 

attempt to replace the Supreme Court’s actual standard for reviewing speechrelated regulation with a test more to its liking. The Supreme Court, however, does 

not employ any single test to review of campaign finance laws, but rather applies 

varying standards of scrutiny depending on the nature of the regulation and the 

weight of the First Amendment burdens imposed by such regulation. 

For instance, expenditure limits, the most burdensome form of campaign 

finance regulation, are subject to strict scrutiny and reviewed for whether they are 

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“narrowly tailored” to “further[] a compelling interest.” WRTL II, 127 S. Ct. at 

2664; see also Buckley, 424 U.S. at 44-45. Contribution limits, by contrast, are 

deemed to impose a lesser burden on speech and are constitutionally “valid” if they 

satisfy “the lesser demand of being closely drawn to match a sufficiently important 

interest.” McConnell, 540 U.S. at 136, quoting FEC v. Beaumont, 539 U.S. 146, 

162 (2003) (internal quotations omitted). Disclosure, the “least restrictive” form of 

regulation, Buckley, 424 U.S at 68, is subject to only an intermediate standard of 

review, requiring no more than a “‘relevant correlation’ or ‘substantial relation’ 

between the governmental interest and the information required to be disclosed.” 

Id. at 64 (internal footnotes omitted). 

But in no case has the Supreme Court used a test of whether speech is 

“unambiguously campaign related” as the standard for assessing the 

constitutionality of a campaign finance law. CTP argues that this Court’s decision 

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

requires this standard to be applied to the disclosure provisions challenged here. 

See Br. at 20. While it is true that Leake interpreted Buckley to limit the 

application of state campaign finance law to “actions that are ‘unambiguously 

related to the campaign of a particular ... candidate,’” Leake, 525 U.S. at 281, the 

federal disclosure provisions challenged here differ significantly from those state 

laws examined in Leake. Moreover, the provisions challenged here have been 

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explicitly upheld by the Supreme Court in McConnell under a different test – the 

“substantial relation” test – applicable to disclosure laws. Furthermore, Leake

considered the state’s interest in preventing corruption as the only applicable 

justification for the particular state laws at issue in that case. The Supreme Court 

has made clear, however, that disclosure statutes serve different, broader 

government interests than the anti-corruption interest considered by this Court in 

Leake. Indeed, the Supreme Court has upheld political disclosure laws completely 

unrelated to candidate campaigns. 

For all these reasons, this Court should reject CTP’s proposed 

“unambiguously campaign related” test and adhere to the established Supreme 

Court standards for reviewing the constitutionality of political disclosure 

requirements. 

II. The Electioneering Communication Disclosure Requirements Are 

Constitutional.

Instead of CTP’s invented “unambiguously campaign related” standard, it is 

the analysis of the electioneering communications disclosure provisions in 

McConnell that controls here. There, applying intermediate scrutiny, the Supreme 

Court upheld the disclosure provisions against a facial constitutional challenge by a 

vote of 8-1. 

CTP argues that WRTL II – which limited the scope of electioneering 

communications that could be subject to BCRA’s funding prohibition – likewise 

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limited the scope of electioneering communications that could be subject to 

BCRA’s disclosure requirements. However, WRTL II did not even consider the 

electioneering communications disclosure requirements, much less overrule 

McConnell’s approval of these requirements. Further, CTP’s argument that WRTL 

II allows only “unambiguously campaign related” speech to be regulated in any 

fashion is belied by a series of Supreme Court cases that have upheld disclosure 

requirements for issue speech relating to lobbying and ballot measure advocacy. 

This was recognized by the district court below, which denied CTP’s request for a 

preliminary injunction on this claim, and also by the courts in both Citizens United 

and ORTL, which rejected identical claims. This Court should reject CTP’s 

challenge to the disclosure requirements as well. 

A. McConnell Upheld the Electioneering Communication Disclosure

Requirements on Their Face. 

In McConnell, eight Justices, applying intermediate scrutiny, upheld both the 

reporting and the disclaimer requirements on their face, finding both were 

substantially related to important state interests. See 540 U.S. at 196 (Stevens, J.) 

and 321 (Kennedy, J.) (upholding the electioneering communication reporting 

requirements); 540 U.S. at 231 (Rehnquist, C.J., joined by all Justices except 

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Thomas, J.) (upholding the electioneering communication disclaimer 

requirements).3

 This result and analysis controls here. 

1. Contrary to CTP’s Allegations, the Disclosure Requirements Are 

Subject to Intermediate Scrutiny, Not Strict Scrutiny.

The Court in McConnell relied upon Buckley to apply an intermediate level 

of scrutiny to the disclosure requirements. 

In Buckley, the Court reviewed the comprehensive reporting and recordkeeping requirements for political committees under the Federal Election 

Campaign Act (FECA), see 424 U.S. at 60-74, as well as its more limited reporting 

requirements for independent expenditures, see id. at 74-82. The standard of 

review established by the Court was whether there was a “‘relevant correlation’ or 

‘substantial relation’ between the governmental interest and the information 

required to be disclosed.” Id. at 64. This intermediate standard of review was 

appropriate because disclosure requirements “appear to be the least restrictive 

means of curbing the evils of campaign ignorance and corruption that Congress 

found to exist.” Id. at 68 (footnotes omitted). 

The majority opinion in McConnell adopted Buckley’s standard of review. 

540 U.S. at 196. Moreover, the three concurring Justices expressly employed 

 

3

 The three concurring Justices noted one exception, and found 

unconstitutional the requirement in section 202 of BCRA that speakers provide 

“advance disclosure” of executory contracts to purchase airtime for electioneering 

communications to be run in the future. 540 U.S. at 321 (Kennedy, J., concurring). 

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Buckley’s “substantial relation” standard, holding that the electioneering 

communications disclosure requirements “do[] substantially relate” to the 

governmental interest in providing the electorate with information. Id. at 321 

(Kennedy, J., concurring). 

Undeterred by this precedent, CTP asserts that this Court should nonetheless 

apply strict scrutiny here, arguing that “exacting scrutiny” is the proper standard 

for the review of disclosure requirements, and that “the ‘exacting scrutiny’ 

applicable to the Disclosure Requirements is strict scrutiny.” Br. at 35. 

CTP is attempting to exploit the inconsistent use of the term “exacting 

scrutiny” by the Supreme Court in past cases.4

 While it is true that this term has 

denominated different standards of review, the crucial point is that the actual 

“substantial relation” test applied in Buckley and McConnell bears no resemblance 

to strict scrutiny review. Even a cursory reading of Buckley and McConnell

indicates that the Supreme Court did not consider whether the challenged 

disclosure requirements served a “compelling state interest,” nor whether the 

requirements were “narrowly tailored” to serve that interest. And it is the 

substance of the test applied by the Court that is dispositive, not the label given to 

 

4

 Compare Buckley, 424 U.S. at 64 (applying “exacting scrutiny” by 

reviewing the challenged disclosure law for a “relevant correlation” or “substantial 

relation” to a “substantial” governmental interest”) with McIntyre v. Ohio Elections 

Commission, 514 U.S. 334, 347 (1995) (applying “exacting scrutiny” to a state 

ballot measure disclaimer requirement by determining whether the requirement 

was “narrowly tailored to serve an overriding state interest”). 

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it. See ORTL, 2008 WL 4186312, at *7 (“Defendants argue, and this Court agrees, 

that the appropriate standard of review regarding campaign finance disclosure laws 

is intermediate, not strict scrutiny.”). 

Moreover, given that the Buckley Court recognized that disclosure 

requirements are the “least restrictive” form of campaign finance regulations, 424 

U.S. at 68, it would be illogical to subject them to the strictest level of scrutiny 

reserved for expenditure limits. The Court in Buckley and McConnell did not do 

so, and neither should the Court here. 

2. McConnell Made Clear That the Electioneering Communication 

Disclosure Requirements Are Supported by Important 

Governmental Interests. 

The McConnell Court’s analysis of the state interests supporting BCRA’s 

electioneering communication disclosure requirements also has its roots in the 

Buckley decision. 

Buckley identified three “substantial” governmental interests served by 

disclosure requirements. First, “disclosure provides the electorate with information 

‘as to where political campaign money comes from and how it is spent by the 

candidate’ in order to aid the voters in evaluating those who seek federal office.” 

Id. at 66-67 (footnotes omitted). In addition to this informational interest, the 

Court also found that “disclosure requirements deter actual corruption and avoid 

the appearance of corruption by exposing large contributions and expenditures to 

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the light of publicity.” Id. at 67. Finally, “recordkeeping, reporting, and disclosure 

requirements are an essential means of gathering the data necessary to detect 

violations” of the federal campaign finance laws. Id. at 67-68. 

 The Supreme Court relied upon this analysis in McConnell, holding that the 

three “important” state interests identified by Buckley – providing the electorate 

with information, deterring corruption, and enabling enforcement of the law – 

“apply in full” to the electioneering communication disclosure requirements. 

McConnell, 540 U.S. at 196. 

Importantly, the Court upheld the electioneering communication disclosure 

requirements as “to the entire range of ‘electioneering communications,’” 

McConnell, 540 U.S. at 196 (emphasis added), even though it had acknowledged 

that the definition of “electioneering communications” potentially encompassed 

both express advocacy and “genuine issue ads.” Id. at 206 (noting that the “precise 

percentage of issue ads that clearly identified a candidate and were aired during 

those relatively brief preelection timespans but had no electioneering purpose is a 

matter of dispute between the parties”). In so holding, the majority suggested that 

the governmental interests that had led the Buckley Court to uphold FECA’s 

disclosure provisions also supported disclosure of electioneering communications, 

even if some percentage of “genuine issue ads” were covered by the electioneering 

communication disclosure requirement. And indeed, the three concurring Justices 

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14

in McConnell voted to uphold the disclosure provisions as constitutional even 

though they concluded the funding restrictions were unconstitutional as applied to 

the same ads. Thus, contrary to CTP’s claims, the McConnell Court found that 

BCRA’s disclosure provisions were valid even as applied to some number of 

advertisements that were not “unambiguously campaign related.” 

B. WRTL II in No Way Undercuts the McConnell Decision 

Upholding the Electioneering Communication Disclosure 

Requirements as to the Entire Range of Electioneering 

Communications. 

The Supreme Court in WRTL II did not even consider, let alone invalidate, 

the electioneering communication disclosure requirements that had been upheld in 

McConnell. 

Nor did the plaintiff WRTL contest the disclosure requirements. Its 

complaint made clear that “WRTL does not challenge the reporting and disclaimer 

requirements for electioneering communications, only the prohibition on using its 

corporate funds for its grassroots lobbying advertisements.” WRTL II, No. 04-

1260, Amended Verified Complaint, 2004 WL 3753200, at ¶ 37 (D.D.C. Sept. 1, 

2004). And in its brief to the Supreme Court, it stressed that its challenge to the 

statute, if successful, would leave a fully “transparent” system: 

Because WRTL does not challenge the disclaimer and disclosure 

requirements, there will be no ads done under misleading names. 

There will continue to be full disclosure of all electioneering 

communications, both as to disclaimer and public reports. The whole 

system will be transparent. With all this information, it will then be 

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15

up to the people to decide how to respond to the call for grassroots 

lobbying on a particular government issue. And to the extent that 

there is a scintilla of perceived support or opposition to a candidate, 

... the people, with full disclosure as to the messenger, can make the 

ultimate judgment. 

WRTL II, Brief of Appellee WRTL, Inc., 2007 WL 868545, at *49 (Mar. 22, 

2007). 

CTP does not seriously dispute that the Court in WRTL II reviewed only the 

constitutionality of BCRA’s funding restriction and not its disclosure requirements. 

Br. at 29. Yet it nevertheless asserts that the WRTL II Court intended its analysis

of the funding restriction to apply to the disclosure requirements as well. But 

because the funding restriction and the disclosure requirements are subject to 

different standards of scrutiny and supported by different governmental interests, 

the WRTL II Court’s assessment of the former has virtually no bearing on the 

constitutionality of the latter. 

First, wholly different constitutional standards of review apply to the two 

provisions. Whereas a reporting requirement is constitutional so long as there is a 

“‘relevant correlation’ or ‘substantial relation’ between the governmental interest 

and the information required to be disclosed,” Buckley, 424 U.S. at 64, a restriction 

on political spending is constitutional only if it meets the strict scrutiny 

requirement of being “narrowly tailored to further a compelling interest,” WRTL II, 

127 S. Ct. at 2670 (quoting McConnell, 540 U.S. at 205). Examining the funding 

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16

restriction, and that provision alone, the Court in WRTL II applied strict scrutiny. 

The WRTL II Court gave no consideration to whether the disclosure requirements 

could be constitutionally applied to the ads at issue in the case under the different, 

and lesser, standard of scrutiny applicable to such disclosure laws. 

Second, disclosure requirements serve different governmental interests than 

do restrictions on expenditures. The Supreme Court considered only two 

governmental interests in its review of the funding restriction in WRTL II: the 

government’s interest in preventing actual or apparent corruption and its interest in 

avoiding the “corrosive and distorting effects of immense aggregations of wealth 

that are accumulated with the help of the corporate form.” WRTL II, 127 S. Ct. at 

2672. Indeed, these two goals are the only state interests recognized by the 

Supreme Court as sufficiently compelling to justify a restriction on expenditures. 

By contrast, the Court has long recognized that disclosure provisions serve a 

broader range of governmental goals, including providing the electorate with 

information and enabling enforcement of the substantive provisions of the law. 

Buckley, 424 U.S. at 66-68. The WRTL II Court’s conclusion that the state’s anticorruption and “corporate form” interests did not justify the expenditure restriction 

at issue in that case does not speak to whether the state’s informational and 

enforcement interests will support a disclosure requirement. 

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17

In light of the clear legal distinctions between expenditure and disclosure 

regulations, the district court below found that “the Supreme Court’s subsequent 

decision in WRTL II did not ... overturn McConnell.” Slip op. at 10. It went on to 

explain: 

The provision at issue in WRTL II was an expenditure regulation ... 

and was, therefore, subject to strict scrutiny. The WRTL II decision 

makes no mention of the disclosure requirements upheld in 

McConnell and at issue before this court nor any other provision, the 

constitutionality of which is determined by the “relevant correlation” 

or “substantial relation” test. 

Id. The same conclusion was drawn by the three-judge court in Citizens United: 

“We do not believe WRTL went so far. The only issue in the case was whether 

speech that did not constitute the functional equivalent of express advocacy could 

be banned during the relevant pre-election period.” 530 F. Supp. 2d at 281 

(emphasis added). In response to Citizen United’s claim that its speech was not the 

functional equivalent of express advocacy under WRTL II and was therefore 

“constitutionally protected” from disclosure, the court in Citizens United said: 

We know that the Supreme Court has not adopted that line as a 

ground for holding the disclosure and disclaimer provisions 

unconstitutional, and it is not for us to do so today. And we know as 

well that in the past the Supreme Court has written approvingly of 

disclosure provision triggered by political speech even though the 

speech itself was constitutionally protected under the First 

Amendment. 

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18

Id. (citations omitted). For these reasons, the court dismissed precisely the claim 

made by CTP here, rejecting that WRTL II should be read to invalidate the BCRA 

disclosure requirements. See also ORTL, 2008 WL 4186312, at *9. 

C. Compelled Disclosure of “Issue” Advocacy is Constitutional. 

Further undercutting CTP’s assertion that only “unambiguously campaign 

related” activities can be subject to disclosure is a line of Supreme Court cases 

approving the disclosure of issue advocacy relating to lobbying and ballot measure 

advocacy. This precedent illustrates that the constitutionality of a disclosure 

requirement does not turn on whether the speech meets WRTL II’s standard for 

express advocacy or CTP’s made-up “unambiguously campaign related” test. 

First, both federal and state courts have consistently upheld lobbying 

disclosure statutes. The leading Supreme Court case on lobbying disclosure, U.S. 

v. Harriss, 347 U.S. 612 (1954), considered the federal Lobbying Act of 1946, 

which required every person “receiving any contributions or expending any money 

for the purpose of influencing the passage or defeat of any legislation by Congress” 

to disclose their clients and their contributions and expenditures. Id. at 615 & n.1. 

After evaluating the Act’s burden on First Amendment rights, the Court held that 

lobbying disclosure was justified by the state’s informational interests: “[F]ull 

realization of the American ideal of government by elected representatives depends 

to no small extent on their ability to properly evaluate [lobbying] pressures.... 

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[Congress] has merely provided for a modicum of information from those who for 

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

purpose.” Id. at 625.5

That the Lobbying Act was unrelated to candidate campaigns and instead 

pertained only to issue speech was not deemed constitutionally significant. The 

Supreme Court found that lobbying disclosure nonetheless serves the state’s 

informational interest and “maintain[s] the integrity of a basic governmental 

process.” Id. at 625. See also National Association of Manufacturers v. Taylor, 

549 F. Supp. 2d 33 (D.D.C. 2008) (dismissing First Amendment challenge to 

current federal lobbying disclosure law). 

Further, the Court has recognized that even “grassroots” or “indirect” 

lobbying may be constitutionally subject to disclosure. Such communications 

generally describe a legislative action favored by the sponsor, and urge the public 

to lobby the relevant lawmakers regarding this action. The Harriss case upheld a 

grassroots lobbying disclosure provision in the 1946 Lobbying Act that required 

disclosure of lobbyists’ efforts to “artificially stimulate[]” the public to conduct 

 

5

 The Harriss decision has been followed by lower courts which have 

uniformly upheld state lobbying statutes on the grounds that the state’s 

informational interest in lobbying disclosure outweighs the associated burdens. 

See, e.g., Florida League of Prof'l Lobbyists, Inc. v. Meggs, 87 F.3d 457, 460 (11th 

Cir. 1996); Minnesota State Ethical Practices Board v. NRA, 761 F.2d 509, 512 

(8th Cir. 1985); Commission on Independent Colleges and Universities v. New 

York Temporary State Commission, 534 F. Supp. 489, 494 (N.D.N.Y. 1982). 

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20

“letter campaign[s]” to influence the acts of Congress. Harriss, 347 U.S. at 620 & 

n.10.6

 See also Minn. State Ethical Practices Bd. v. NRA, 761 F.2d 509, 511 (8th 

Cir. 1985) (upholding Minnesota disclosure requirement as applied to 

communications sent from the NRA to its Minnesota members urging them to 

contact their state legislators about pending legislation). That this type of “classic” 

issue advocacy can be subject to disclosure fatally undermines CTP’s claim that 

only “unambiguously campaign related” communications can be constitutionally 

regulated. 

In a similar vein, the Supreme Court has expressed approval of statutes 

requiring the disclosure of expenditures relating to ballot measures, although such 

statutes also lack a connection to candidate campaigns. See, e.g., Buckley v. Am. 

Constitutional Law Found., 525 U.S. 182, 203 (1999) (noting that “ballot 

initiatives do not involve the risk of ‘quid pro quo’ corruption present when money 

is paid to, or for, candidates”). In First National Bank of Boston v. Bellotti, 435 

U.S. 765 (1978), the Court struck down limits on corporate expenditures to 

influence ballot measures, but did so in part because “[i]dentification of the source 

 

6

 Over twenty states have laws that require disclosure of expenditures funding 

grassroots lobbying. GAO REPORT, INFORMATION ON STATES’ LOBBYING 

DISCLOSURE REQUIREMENTS, B-129874 (May 2, 1997), at 2. These statutes have 

been routinely upheld by the courts. See, e.g., Florida League, 87 F.3d at 460-61 

(upholding Florida law which required disclosure of expenditures both for direct 

lobbying and for indirect lobbying activities which did not involve contact with 

governmental officials); Minn. State Ethical Practices Bd., 761 F.2d at 512. 

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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. at 792 

n.32. Citing Buckley and Harriss, the Court took note of “the prophylactic effect 

of requiring that the source of communication be disclosed.” Id. 

The Supreme Court again recognized this state “informational interest” in 

Citizens Against Rent Control v. City of Berkeley, 454 U.S. 290 (1981), where it 

considered a challenge to the City’s ordinance that limited contributions to ballot 

measure committees. Although the Court struck down the contribution limit, it 

based this holding in part on the disclosure that the law required from such 

committees. See id. at 298 (“[T]here is no risk that the Berkeley voters will be in 

doubt as to the identity of those whose money supports or opposes a given ballot 

measure since contributors must make their identities known under [a different 

section] of the ordinance, which requires publication of lists of contributors in 

advance of the voting.”). 

In an attempt to distinguish the ballot measure decisions from this case, CTP 

argues that the statutes at issue there required disclosure only in connection to 

express advocacy for or against ballot initiatives. Br. at 30-31. But they did no 

such thing: nothing in these Supreme Court cases indicates that the disclosure 

requirements there were limited to spending for “express advocacy” for or against 

the ballot measure. 

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Further, in so arguing, CTP is conceding that disclosure requirements can 

constitutionally apply to speech about issues, not candidates. This unravels CTP’s 

entire argument. The ballot measure statutes at issue in Belotti and City of 

Berkeley required the disclosure of speech – express or not – that was not even 

remotely related to candidate campaigns. If such speech can be constitutionally 

subject to disclosure in the ballot measure context – a point which CTP concedes – 

then a fortiori such speech can be subject to disclosure if it meets the definition of 

“electioneering communication” in the context of candidate campaigns. The ballot 

measure case law thus directly contradicts CTP’s proposed “unambiguously 

campaign related” test. 

D. The Electioneering Communication Disclosure Requirements Are 

Constitutional as Applied to CTP’s Advertisements. 

As discussed in the foregoing sections, the applicable constitutional standard 

here is not CTP’s “unambiguously campaign related” test, but rather Buckley’s 

“substantial relation” standard. Under this standard, the application of the 

disclosure requirements to CTP’s advertisements is constitutional because such 

disclosure is “substantially related” to the governmental interests in informing the 

electorate and enforcing federal campaign finance laws. 

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1. BCRA’s Disclosure Requirements Serve the Government’s

Informational Interest. 

The principal state interest justifying compelled disclosure is its interest in 

“providing the electorate with information.” McConnell, 540 U.S. at 196. Indeed, 

disclosure laws have been sustained on the basis of this interest alone. See, e.g., 

Buckley, 424 U.S. at 80-81 (upholding FECA’s independent expenditure disclosure 

provisions although they did not “stem corruption or its appearance” but rather 

“serve[d] another, informational interest,” namely “increasing the fund of 

information concerning those who support the candidates”). CTP offers no reason 

why this interest would not support application of the disclosure requirements to its 

advertisements, and to non-express-advocacy electioneering communications more 

generally. 

First, the WRTL II Court recognized that even those electioneering 

communications that do not constitute express advocacy or its functional 

equivalent are not necessarily “pure” issue advocacy. Instead, such 

communications will often consist of a mix of issue advocacy and electioneering. 

127 S. Ct. at 2669 (acknowledging that distinction between electioneering and 

issue advocacy “may often dissolve in practical application,” and that “discussion 

of issues” may be “pertinent in an election”) (internal quotations omitted). WRTL 

II’s test for the “functional equivalent of express advocacy” is whether an ad is 

“susceptible of no reasonable interpretation other than as an appeal to vote for or 

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24

against a specific candidate.” Id. at 2667. This means that an electioneering 

communication that is susceptible of dual interpretations – both as issue advocacy 

and as electioneering – will not be subject to the funding restriction of BCRA. 

Nonetheless, as an “electioneering communication,” it will, by definition, be 

an advertisement referring to a clearly identified candidate broadcast in very close 

proximity to a federal election. As an ad susceptible of a “reasonable 

interpretation” to vote for or against a candidate, it is likely to have an effect on a 

federal election, even if it is susceptible to another interpretation as well. And for 

that reason, disclosure will “substantially relate” to the state’s informational 

interest in “aid[ing] the voters in evaluating those who seek federal office.” 

Buckley, 424 U.S. at 66-67. 

Furthermore, as the case law on lobbying and ballot measure advocacy 

demonstrates, the state has an interest in providing information to the public about 

even those activities that constitute “pure” issue advocacy. See, e.g., Harriss, 347 

U.S. at 625 (lobbying and grassroots lobbying disclosure); Am. Constitutional Law 

Found., 525 U.S. at 205 (ballot measure disclosure). Thus, even if CTP’s 

advertisements are deemed pure issue speech, the public has an interest in 

receiving information about the sponsor and funders of the ads in order to judge 

the credibility of their messages. 

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2. BCRA’s Disclosure Requirements Serve the Government’s 

Enforcement Interest.

McConnell also upheld BCRA’s disclosure requirements based upon a 

second governmental interest, namely “gathering the data necessary to enforce 

more substantive electioneering restrictions.” 540 U.S. at 196. See also Buckley

424 U.S. at 67-68. This interest is relevant to disclosure of the “entire range” of 

electioneering communications, including those that do not constitute express 

advocacy or its functional equivalent under WRTL II. 

For instance, comprehensive disclosure of electioneering communications is 

important to the FEC’s ability to make determinations about whether a group is a 

“political committee,” which includes an assessment of whether the group’s “major 

purpose” is campaign related. See Buckley, 424 U.S. at 79. The FEC employs a 

comprehensive, multi-factor analysis to ascertain a group’s major purpose, 

including reviewing the group’s conduct, organic documents and public 

statements. See Section III, infra. A group’s spending – even for non-expressadvocacy electioneering communications – is highly relevant to this analysis. See

FEC v. Massachusetts Citizens for Life, 479 U.S. 238, 262 (1986) (finding that a 

group’s major purpose can be established by the nature of its “independent 

spending”); see also FEC Explanation and Justification, Political Committee 

Status, 72 Fed. Reg. 5595, 5601 (Feb. 7, 2007) (noting that to determine major 

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26

purpose FEC may “evaluate the organization’s spending on Federal campaign 

activity, as well as any other spending by the organization”). 

Further, under FECA, any payment for an electioneering communication 

that an outside group “coordinates” with a candidate is deemed an in-kind 

contribution to such candidate subject to federal contribution restrictions. 2 U.S.C. 

§§ 441a(a)(7), 441b; 11 C.F.R. § 109.21(c)(1). Without disclosure of the entire 

range of electioneering communications, the FEC’s ability to enforce the 

coordination rules will be impaired, allowing outside spenders to circumvent the 

federal contribution restrictions. 

III. The FEC’s PAC-Status Enforcement Policy and Application of the 

“Major Purpose” Test Is Constitutional.

CTP also challenges the FEC’s methodology for determining whether an 

entity is a “political committee.” In particular, CTP claims that that the FEC’s 

application of the “major purpose” test is based on an “ad hoc, case-by-case, 

analysis of vague and impermissible factors.” Br. at 43. 

The district court was correct in rejecting CTP’s objections and denying 

injunctive relief on this claim. And the district court is not alone in this 

conclusion. Almost identical claims were rejected recently in the RTAO case, a 

decision which this Court declined to disturb pending appeal. See RTAO, No. 08-

1977, Order Denying Injunction Pending Appeal (4th Cir. Oct. 1, 2008). 

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FECA defines “political committee” to include “any committee, club, 

association, or other group of persons” which “receives contributions” or “makes 

expenditures” “aggregating in excess of $1,000 during a calendar year.” 2 U.S.C. 

§ 431(4). The Supreme Court has construed this statutory definition of “political 

committee” to apply only to so-called “major purpose” groups. 

The “major purpose” test was first articulated by the Supreme Court in 

Buckley. 424 U.S. at 78-81. FECA established disclosure requirements both for 

individuals and for “political committees,” prompting the Court to address 

constitutional concerns that the statutory definition of the term “political 

committee” was overbroad and, to the extent it incorporated the definition of 

“expenditure,” vague as well. The Court feared that because the term 

“expenditure” potentially “encompass[ed] both issue discussion and advocacy of a 

political result,” the “political committee” definition (which relies on the definition 

of “expenditure”) might “reach groups engaged purely in issue discussion.” Id. at 

78-79. 

The Court resolved these concerns by narrowing the definition of “political 

committee” to 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). For such “major purpose” groups, the Court had 

no vagueness concerns about the statutory definition of “expenditure” because, the 

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Court held, “expenditures” by such groups “are, by definition, campaign related.” 

Id. (emphasis added). By contrast, the Court narrowed the definition of 

“expenditure” as applied to non-major purpose groups to encompass only “funds 

used for communications that expressly advocate the election or defeat of a clearly 

identified candidate.” Id. at 80 (emphasis added). 

Thus, following Buckley, there is a two-prong test for political committee 

status: whether a group makes “expenditures” or receives “contributions” in excess 

of $1,000 (the statutory test), and whether the group’s “major purpose” is to 

influence elections (the Buckley test). 

CTP’s principal objection to the FEC’s PAC-status enforcement policy 

focuses on the Commission’s application of Buckley’s “major purpose” test. 

Specifically, CTP argues that the FEC’s implementation of the “major purpose” 

test, as set forth in its most recent statement on the question, see FEC Notice 2007-

3, 72 Fed. Reg. 5595, and in recent enforcement actions, is an overbroad and 

unbounded inquiry into “vague and impermissible” factors. Br. at 43. 

CTP argues that as a constitutional matter, the major purpose test must be 

narrowed to only two permissible inquiries. First, CTP claims that the 

Commission can examine whether a group’s contributions and express advocacy 

expenditures constitute a majority of its total disbursements. Br. at 40-41. 

Alternatively, CTP states that the FEC can examine a group’s “organic documents” 

Case: 08-2257 Document: 23-1 Date Filed: 04/24/2009 Page: 36
29

– but only those documents – to determine if they contain an “express intention” to 

operate as a political committee. Id. at 41. According to CTP, any other inquiry is 

impermissible. 

But these are limitations that CTP simply makes up. It cites no support in 

the law for them, and there is none. The test set forth by the Supreme Court is 

whether a group’s “major purpose” or “primary objective” is “the nomination or 

election of a candidate” or “campaign activity” or “to influence political 

campaigns.” Buckley, 424 U.S. at 79. The Court did not limit the scope of the 

inquiry about how this “major purpose” determination is to be made, and certainly 

did not do so along the lines suggested by CTP. 

To the contrary, a federal district court recently approved the FEC’s “fact 

intensive approach” to this major purpose determination. Shays v. FEC, 511 F. 

Supp. 2d 19, 29 (D.D.C. 2007). There, the plaintiff sought to require the FEC to 

issue a regulation specifying the standard for the “major purpose” determination. 

The FEC defended its decision to make “major purpose” determinations on a caseby-case basis, principally through enforcement actions, arguing that the major 

purpose doctrine “requires the flexibility of a case-by-case analysis of an 

organization’s conduct,” including “whether there is sufficiently extensive 

spending on federal campaign activity,” “the content of [a group’s] public 

statements,” “internal statements of the organization,” “all manner of the 

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30

organization’s spending” and “the organization’s fundraising appeals.” Id. The 

district court approved the FEC’s approach, noting that “Buckley established the 

major purpose test, but did not describe its application in any fashion.” Id.; see 

also FEC v. Malenick, 310 F. Supp. 2d 230, 234 (D.D.C. 2004), quoting FEC v. 

GOPAC, 917 F. Supp. 851, 859 (D.D.C. 1996) (“An 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.”). 

Indeed, in Leake, this Court described the test as an inquiry into whether an 

organization has the major purpose “of supporting or opposing a candidate” and 

said that political committee status is “only proper if an organization primarily 

engages in election-related speech.” 525 F.3d at 288 (emphasis added). The Court 

further said that the test is to be implemented by examining, inter alia, whether 

“the organization spends the majority of its money on supporting or opposing 

candidates.” Id. at 289 (emphasis added). None of these formulations states or 

implies the kind of highly restricted inquiry which CTP assumes. 

Leake also suggested that the major purpose test could be implemented by 

reviewing an organization’s bylaws or other statements expressing its primary 

purpose, or by reviewing how it spends a majority of its funds. 525 F.3d at 289. 

But this Court expressly did not reach the plaintiff’s suggestion there – the same 

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31

claim made by CTP here – that these were the only permissible inquiries: “While 

this standard would be constitutional, we need not determine in this case whether it 

is the only manner in which North Carolina can apply the teachings of Buckley.” 

Id. at 289 n.6. 

The district court in RTAO rejected virtually the same claim as CTP makes 

here. In so holding, it noted: 

The FEC rule is flexible with a “case-by-case analysis” of conduct 

including spending on Federal campaign activity, spending on other 

activities, analysis of public statements, declaration of purpose on 

website, fundraising appeals, and similar types of activities. Because 

the FEC employs the same factors the Supreme Court has approved 

... Plaintiff’s claim of overbreadth appears to be lacking and therefore 

will likely not succeed on the merits. 

RTAO, 2008 WL 4416282, at *14 (citations omitted) (emphasis added). 

In short, the Supreme Court in Buckley added the “major purpose” test as a 

gloss on the statutory definition of “political committee” in order to narrow the 

sweep of the statutory standard. But neither the Supreme Court nor any lower 

court has constricted the scope of the inquiry that the Commission is to use in 

making a “major purpose” determination as narrowly as CTP here proposes. This 

Court should therefore reject CTP’s challenge to the FEC’s PAC-status 

enforcement policy. 

CONCLUSION 

For the foregoing reasons, the district court’s decision should be affirmed.

Case: 08-2257 Document: 23-1 Date Filed: 04/24/2009 Page: 39
32

Respectfully submitted, 

Donald J. Simon 

(D.C. Bar No. 256388) 

SONOSKY, CHAMBERS, SACHSE

ENDRESON & PERRY, LLP 

1425 K Street, N.W. 

Suite 600 

Washington, D.C. 20005 

(202) 682-0240 

Fred Wertheimer 

(D.C. Bar No. 154211) 

DEMOCRACY 21 

1875 I Street, N.W. 

Suite 500 

Washington, D.C. 20005 

(202) 429-2008 

Counsel for Amicus Curiae

 Democracy 21 

J. Gerald Hebert 

(VA Bar No. 38432) 

/s/ Tara Malloy

Tara Malloy 

(NY Bar No. 4251005) 

 Paul S. Ryan 

(D.C. Bar No. 502514) 

THE CAMPAIGN LEGAL CENTER

1640 Rhode Island Ave., N.W. 

Suite 650 

Washington, D.C. 20036 

Tel: (202) 736-2200 

Counsel for Amicus Curiae

 Campaign Legal Center 

Dated: April 24, 2009 

Case: 08-2257 Document: 23-1 Date Filed: 04/24/2009 Page: 40
 i

CERTIFICATE OF COMPLIANCE 

 This brief complies with the type-volume limitation of Fed. R. App. P. 

32(a)(7)(B) because this brief contains 6,987 words, excluding the parts of the 

brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). 

 This brief complies with the typeface requirements of Fed. R. App. P. 

32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this 

brief has been prepared in a proportionally spaced typeface using Microsoft Word 

2000 in 14-point Times New Roman font. 

/s/ Tara Malloy

Tara Malloy 

The Campaign Legal Center 

1640 Rhode Island Ave. NW, Ste. 650 

Washington, DC 20036 

(202) 736-2200 

Dated: April 24, 2009 

Case: 08-2257 Document: 23-1 Date Filed: 04/24/2009 Page: 41
 ii

CERTIFICATE OF SERVICE 

This is to certify that, pursuant to local rule 31, on April 24, 2009, I mailed 

the original and eight copies of the foregoing BRIEF AMICI CURIAE FOR THE 

CAMPAIGN LEGAL CENTER AND DEMOCRACY 21 IN SUPPORT OF 

DEFENDANT-APPELLEE AND URGING AFFIRMANCE for filing by United 

States mail, first-class postage prepaid, to: 

Patricia S. Connor, Clerk 

U.S. Court of Appeals for the Fourth Circuit 

1100 East Main Street, Suite 501 

Richmond, VA 23219-3517 

This is to further certify that on April 24, 2009, I electronically filed the 

foregoing brief using the Court’s CM/ECF system, which will then send a 

notification of such filing to the following: 

James Bopp, Jr., jboppjr@aol.com 

Clayton James Callen, ccallen@bopplaw.com 

Richard Eugene Coleson, rcoleson@bopplaw.com 

David Kolker, dkolker@fec.gov 

Harry J. Summers, hsummers@fec.gov 

Claire Rajan, crajan@fec.gov 

Case: 08-2257 Document: 23-1 Date Filed: 04/24/2009 Page: 42
 iii

I further certify that copies of the brief were sent on April 24, 2009 by 

United States mail, first-class postage prepaid, and by email, where email 

addresses were available and known, to the following counsel: 

James Bopp, Jr. 

 jboppjr@aol.com

Richard E. Coleson 

 rcoleson@bopplaw.com

Clayton J. Callen 

 ccallen@bobblaw.com

BOPP, COLESON & BOSTROM 

1 South Sixth Street 

Terre Haute, IN 47807-3510 

Paul B. Stam Jr. 

STAM & FORDHAM & DANCHI, PA 

106 Holleman Street 

P. O. Box 1600 

Apex, NC 27502-0000 

Counsel for Plaintiffs-Appellants

Thomasenia P. Duncan 

 tduncan@fec.gov

David Kolker 

 dkolker@fec.gov

Harry J. Summers 

 hsummers@fec.gov

Claire Rajan 

 crajan@fec.gov 

Federal Election Commission 

999 E Street, NW 

Washington, DC 20436 

Rudolf A. Renfer, Jr. 

Assistant U. S. Attorney 

OFFICE OF THE UNITED STATES 

ATTORNEY 

Federal Building 

310 New Bern Avenue 

Raleigh, NC 27601-1461 

Counsel for Defendant-Appellee

/s/ Tara Malloy

Tara Malloy 

The Campaign Legal Center 

1640 Rhode Island Ave. NW, Ste. 650 

Washington, DC 20036 

(202) 736-2200 

Dated: April 24, 2009 

Case: 08-2257 Document: 23-1 Date Filed: 04/24/2009 Page: 43