UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF NORTH CAROLINA 

NORTHERN DIVISION 

No. 2:08-cv-00039 

__________________________________________ 

) 

HOLLY ANN KOERBER and ) 

COMMITTEE FOR TRUTH IN POLITICS, INC., ) 

) 

Plaintiffs, ) 

) 

v. ) 

) 

FEDERAL ELECTION COMMISSION, ) 

) 

Defendant. ) 

__________________________________________) 

UNOPPOSED MOTION OF THE CAMPAIGN LEGAL CENTER 

AND DEMOCRACY 21 FOR LEAVE TO FILE MEMORANDUM AS AMICI CURIAE

The Campaign Legal Center (CLC) and Democracy 21 respectfully move for leave to file 

as amici curiae the attached Memorandum in Opposition to Plaintiff’s Motion for A Preliminary 

Injunction. The CLC and Democracy 21 consulted with counsel for Plaintiffs and Defendants to 

request consent to the filing of the attached Memorandum as amici curiae. Plaintiffs and 

Defendant have consented to this motion; this motion is unopposed. The CLC and Democracy 

21 submit this motion without request for oral argument. 

In support of this motion, amici movants state: 

1. This case seeks to have the Court enjoin on a preliminary and permanent basis, 

and to declare void, certain federal campaign finance statutes and Federal Election Commission 

(FEC) enforcement policies that establish when an organization such as Committee for Truth in 

Politics (CTP) must abide by the “political committee” requirements in the Federal Election 

Campaign Act (FECA), as well as when a corporation such as CTP must disclose to the FEC and 

Case 2:08-cv-00039-H Document 19 Filed 10/14/2008 Page 1 of 6
2

the public the fact that it has spent funds to disseminate an “electioneering communication.” 

See, e.g., Plaintiffs’ Preliminary Injunction Memorandum (“Pl. PI Memo.”) at 15, 18. 

2. The CLC is a non-profit, non-partisan organization created to represent the public 

perspective in administrative and legal proceedings interpreting and enforcing the campaign and 

media laws throughout the nation. It participates in rulemaking and advisory opinion 

proceedings at the FEC to ensure that it is properly enforcing federal election laws, and files 

complaints with the Commission requesting that enforcement actions be taken against 

individuals or organizations which violate the law.

3. Democracy 21 is a non-profit, non-partisan policy organization that works to 

ensure the integrity of our democracy. It supports campaign finance and other political reforms, 

and conducts public education efforts to accomplish these goals, participates in litigation 

involving the constitutionality and interpretation of campaign finance laws and engages in efforts 

to help ensure that campaign finance laws are effectively and properly enforced and 

implemented. 

4. The amici movants have substantial experience and expertise with regard to the 

issues raised in this case. 

5. The amici movants participated extensively in the FEC rulemaking proceedings 

that produced the challenged “PAC-Status Enforcement Policy”1

 Further, the amici movants 

participated in the FEC rulemaking proceedings to interpret the Supreme Court decision in 

WRTL II, which led to the FEC’s promulgation of a regulation that does not – to Plaintiffs’ 

disappointment – exempt from federal statutory “electioneering communication” disclosure 

 

1

 Comments of Democracy 21, Campaign Legal Center and Center for Responsive Politics 

on FEC Notice 2004-6 (Political Committee Status) (April 5, 2004), available at

http://www.fec.gov/pdf/nprm/political_comm_status/simon_potter_nobel_sanford.pdf. 

Case 2:08-cv-00039-H Document 19 Filed 10/14/2008 Page 2 of 6
3

requirements ads of the sort CTP wishes to disseminate free from public disclosure.2 See 2 

U.S.C. § 434(f) (disclosure of electioneering communications); see also 2 U.S.C. § 441d 

(disclaimer requirement for electioneering communications). The amici movants have also filed 

numerous administrative complaints with the FEC challenging the failure of various groups to 

register as federal political committees in violation of the FEC’s political committee enforcement 

policy.3 The amici movants thus have a significant interest in this action and can materially 

contribute to the Court’s consideration of Plaintiff’s claim. 

6. The amici movants also have substantial expertise in litigation regarding the 

specific laws at issue in this case and campaign finance laws more generally. CLC and 

Democracy 21 have provided legal counsel to parties or amici in numerous campaign finance 

cases, including representing intervening defendants in McConnell v. Fed. Election Comm’n, 540 

U.S. 93 (2003). More recently, CLC and Democracy 21 represented parties in Wisconsin Right 

to Life v. FEC, 126 S.Ct. 1016 (2006) (WRTL I) and WRTL II, 127 S.Ct. 2652 (2007), lawsuits 

which substantially underlie Plaintiff’s claims in the present case. The CLC and Democracy 21 

are presently participating as amici curiae in SpeechNow.org v. Fed. Election Comm’n, 567 F. 

Supp. 2d 70 (D.D.C. 2008) (Memorandum Order Denying Motion for Preliminary Injunction), 

and in The Real Truth Against Obama v. FEC, No. 3-08-CV-483, 2008 WL 4416282 (E.D. Va. 

 

2

 Comments of the Campaign Legal Center, Democracy 21, the Brennan Center for Justice, 

Common Cause, the League of Women Voters and U.S. PIRG on FEC Notice 2007-16 

(Electioneering Communications) (Oct. 1, 2007), available at 

http://www.fec.gov/pdf/nprm/electioneering_comm/2007/campaign_legal_center_democracy21_

brennan_center_for_justice_commoncause_league%20_of_women_voters_uspirg_eccomment7.

pdf. 

3

 E.g., Complaint, Democracy 21 et al. v. America Coming Together (FEC June 22, 2004) 

(MUR 5403); Complaint, Democracy 21 et al. v. The Media Fund, (FEC Jan. 15, 2004) (MUR 

5440); Complaint, Democracy 21 et al. v. Progress for America Voter Fund (FEC July 21, 2004) 

(MUR 5487); Complaint, Democracy 21 et al. v. Swift Boat Veterans for Truth (FEC Aug. 10, 

2004) (MUR 5511). 

Case 2:08-cv-00039-H Document 19 Filed 10/14/2008 Page 3 of 6
4

Sept. 24, 2008), motion for inj. pending appeal den. No. 08-1977 (4th Cir. Oct. 1, 2008) – both 

of which are pending civil actions that likewise challenge the FEC’s regulation of political 

organizations as “political committees.” The CLC and Democracy 21 have also represented 

parties or amici in the following cases relating to the interpretation of the federal and state 

campaign finance laws: Randall v. Sorrell, 126 S.Ct. 2479 (2006); Shays v. FEC (“Shays I”), 337 

F. Supp. 2d 28 (D.D.C. 2004) aff’d 414 F.3d 76 (D.C. Cir. 2005); and Shays v. FEC (“Shays 

III”), 528 F.3d 914 (D.C. Cir. 2008). 

7. Amici movants submit that the attached Memorandum of Amici Curiae in 

Opposition to Plaintiff’s Motion for a Preliminary Injunction will assist the Court in considering 

the issues presented by Plaintiff’s motion. This filing is timely because this motion and the 

attached memorandum are being filed on the date that the principal brief of the Defendant is due. 

Case 2:08-cv-00039-H Document 19 Filed 10/14/2008 Page 4 of 6
5

Wherefore, movants respectfully request that the Court grant leave to file the attached 

Memorandum of Amici Curiae In Opposition to Plaintiff’s Motion for a Preliminary Injunction. 

Respectfully submitted this 14th day of October, 2008. 

/s/ Anita S. Earls______________ 

Anita S. Earls 

N.C. Bar No. 15597 

115 Market St. 

Suite 470 

Durham, NC 27701 

(919) 323-3380 

Local Counsel for Amici Curiae 

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) 

Paul S. Ryan 

(D.C. Bar No. 502514) 

Tara Malloy 

(NY Bar No. 4251005) 

THE CAMPAIGN LEGAL CENTER

1640 Rhode Island Ave., N.W. 

Suite 650 

Washington, DC 20036 

Tel: (202) 736-2200 

Counsel for Amicus Curiae

 Campaign Legal Center 

Case 2:08-cv-00039-H Document 19 Filed 10/14/2008 Page 5 of 6
6

CERTIFICATE OF SERVICE 

This is to certify that on October 14, 2008, a true and accurate copy of the foregoing 

UNOPPOSED MOTION OF THE CAMPAIGN LEGAL CENTER AND DEMOCRACY 21 

FOR LEAVE TO FILE MEMORANDUM AS AMICI CURIAE was served on the counsel of 

record, Paul Stam, Jr. for the Plaintiffs, Claire N. Rajan for the Defendant and R.A. Renfer, Jr. 

for the Defendant by electronically filing the same with the Court, using the CM/ECF system. In 

addition, a courtesy copy was sent by email to:

James Bopp, Jr. 

 jboppjr@aol.com

Richard E. Coleson 

 rcoleson@bopplaw.com

Clayton J. Callen 

 ccallen@bobblaw.com

Sarah Troupis 

 stroupis@bopplaw.com

Bopp, Coleson & Bostrom 

1 South Sixth Street 

Terre Haute, IN 47807-3510 

Counsel for Plaintiffs

Thomasenia P. Duncan 

 tduncan@fec.gov

David Kolker 

 dkolker@fec.gov

Harry J. Summers 

 hsummers@fec.gov

Federal Election Commission 

999 E Street, NW 

Washington, DC 20436 

Counsel for Defendant

/s/ Anita S. Earls____________ 

Anita S. Earls 

Case 2:08-cv-00039-H Document 19 Filed 10/14/2008 Page 6 of 6
 97291.1 

UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF NORTH CAROLINA 

NORTHERN DIVISION 

No. 2:08-cv-00039 

__________________________________________ 

) 

HOLLY ANN KOERBER and ) 

COMMITTEE FOR TRUTH IN POLITICS, INC., ) 

) 

Plaintiffs, ) 

) 

v. ) 

) 

FEDERAL ELECTION COMMISSION, ) 

) 

Defendant. ) 

__________________________________________) 

MEMORANDUM OF CAMPAIGN LEGAL CENTER 

AND DEMOCRACY 21 AS AMICI CURIAE IN OPPOSITION 

TO PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION 

In this case, Plaintiffs Holly Ann Koerber and the Committee For Truth In Politics, Inc. 

(hereinafter referred to collectively as “CTP”) challenge the constitutionality of federal 

disclosure requirements for broadcast ads that are “electioneering communications,” and also 

challenge the policies of the Federal Election Commission (FEC) relating to when a group 

becomes a “political committee.” Both challenges are brought in the context of television ads 

that CTP acknowledges constitute “electioneering communications” under federal law. See

Plaintiffs Preliminary Injunction Memorandum (“Pl. PI Memo.”) at 4 (“Because the Ads are 

electioneering communications....”).1

The basis for CTP’s challenge to the disclosure requirements is the Supreme Court’s 

recent decision in FEC v. Wisconsin Right to Life, Inc., 127 S. Ct. 2652 (2007) (“WRTL II”), 

 

1

 “Electioneering communication” is defined by federal law 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 or thirty days of a primary 

election or nominating convention. See 2 U.S.C. § 434(f)(3). 

Case 2:08-cv-00039-H Document 19-2 Filed 10/14/2008 Page 1 of 31
 97291.1 2

where the Court held that the statutory restriction on corporate and union funding of 

“electioneering communications” was unconstitutional as applied to any such broadcast ads that 

are not express advocacy or “the functional equivalent of express advocacy.” 127 S. Ct. at 2667. 

CTP’s challenge to disclosure has no merit. The WRTL II Court said nothing about the 

disclosure of electioneering communications; the Court examined only the funding restriction for 

such ads. The WRTL II decision therefore provides no basis to question the Supreme Court’s 

earlier decision in McConnell v. FEC, 540 U.S. 93, 194-202 (2003), where the Court did directly 

review the “electioneering communication” disclosure requirements, and upheld them by a vote 

of 8-1. 

Furthermore, CTP’s argument completely disregards the fact that laws requiring 

disclosure not only of campaign financing but also of lobbying activities and ballot measure 

advocacy have been consistently upheld by the Supreme Court and by lower state and federal 

courts. 

For these reasons, CTP’s argument here has already been soundly rejected by a threejudge district court in Washington, DC and by another district court in Ohio. Citizens United v. 

FEC, 530 F. Supp. 2d 274 (D.D.C. 2008) (denying motion for preliminary injunction), summary 

judgment granted, 2008 WL 2788753 (D.D.C. July 18, 2008) (three judge court), appeal pending 

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). This Court should do the same. 

CTP’s separate challenge to the FEC “PAC-status enforcement policy” is likewise wholly 

without merit. The FEC’s determination of when a group is a “political committee,” and the 

Commission’s application of the underlying “major purpose” test, are both consistent with the 

Case 2:08-cv-00039-H Document 19-2 Filed 10/14/2008 Page 2 of 31
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Supreme Court’s constitutional analysis of “political committee” status in Buckley v. Valeo, 424 

U.S. 1, 78-79 (1976) and its progeny. CTP’s argument on this point has also been explicitly 

rejected, this time by another district court in this Circuit just last month, and also on a 

preliminary basis by the Fourth Circuit itself, 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”). Again, this Court should do the same. 

For all these reasons and those detailed below, Amici respectfully submit that CTP is 

unlikely to succeed on the merits of this challenge and we urge the Court to deny CTP’s request 

for a preliminary injunction.

STATEMENT OF FACTS 

Amici incorporate by reference and rely upon the Statement of Facts presented by the 

FEC in its Response to Plaintiffs’ Motion for Preliminary Injunction. 

ARGUMENT 

I. Plaintiffs’ 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 Pl. PI Memo. at 9. In CTP’s view, only if speech meets this standard can it be 

subject to any type of regulation under the campaign finance laws. See Pl. PI Memo. at 10, 26. 

According to CTP, the disclosure provisions it challenges here, see Bipartisan Campaign Reform 

Act of 2002 (BCRA) §§ 201, 203, and 311, and the FEC’s “PAC-status enforcement policy,” fail 

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

The problem with CTP’s argument is that it is based on a fiction. The “unambiguously 

campaign related” language appeared in Buckley, not as some sort of foundational test for 

Case 2:08-cv-00039-H Document 19-2 Filed 10/14/2008 Page 3 of 31
 97291.1 4

constitutionality, but rather as a merely incidental reference in the Court’s discussion of express 

advocacy. 424 U.S. at 79-80. The phrase certainly was not adopted as an independent 

constitutional test, and has not been so much as mentioned, much less applied in any subsequent 

Supreme Court case since Buckley.

2

The “unambiguously campaign related” test is simply CTP’s attempt to replace the 

Supreme Court’s actual standard for reviewing speech-related regulation with a test more to its 

liking. The Supreme Court, however, does not employ any such “unambiguously campaign 

related” test 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, as the most burdensome form of campaign finance 

regulation, are subject to strict scrutiny and reviewed for whether they are “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 be less of a 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, 

 

2

 A review of Buckley illustrates the ancillary nature of the phrase. To address “serious 

problems of vagueness,” the Buckley Court construed the term “expenditure” in FECA (as to 

groups without a “major purpose” to influence elections) to reach only “funds used for 

communications that expressly advocate the election or defeat of a clearly identified candidate.” 

Buckley, 424 U.S. at 76, 80. The Court then stated that “this reading is directed precisely to that 

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

80 (emphasis added). The only constitutional “test” created by the Buckley Court in this passage 

was the express advocacy standard for what constitutes an “expenditure” in certain contexts. The 

“unambiguously campaign related” language was simply a description of this standard, not a new 

stand-alone constitutional command. 

Case 2:08-cv-00039-H Document 19-2 Filed 10/14/2008 Page 4 of 31
 97291.1 5

requiring only 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 constitutionality of a campaign finance law. CTP argues 

that the Fourth Circuit’s decision in North Carolina Right to Life, Inc. v. Leake, 525 F.3d 274 

(4th Cir. 2008) (“Leake”), requires this standard to be applied to the disclosure provisions 

challenged in this case. See Pl. PI Memo. at 9-13. 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 at 281, the federal disclosure 

provisions challenged in this case differ significantly from those state laws examined in Leake – 

and the federal laws challenged in this case have been explicitly upheld by the Supreme Court in 

McConnell under a different constitutional test applicable to disclosure laws. See Sec. II, infra. 

Furthermore, the Fourth Circuit in 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 that federal disclosure statutes serve different, broader government 

interests than the anti-corruption interest considered by the Fourth Circuit in Leake – and indeed, 

the Supreme Court has upheld political disclosure laws completely unrelated to candidate 

campaigns. See Sec. II, infra.

For these reasons, this Court should reject CTP’s proposed “unambiguously campaign 

related” test for the constitutionality of the federal disclosure requirements at issue here. The 

Court instead should use the test employed by the Supreme Court in McConnell, where the Court 

upheld these same BCRA provisions against constitutional challenge. 

Case 2:08-cv-00039-H Document 19-2 Filed 10/14/2008 Page 5 of 31
 97291.1 6

II. BCRA’s “Electioneering Communication” Disclosure Requirements Are 

Constitutional. 

CTP argues that the Supreme Court’s decision last year in WRTL II – which limited the 

scope of “electioneering communications” that could be subject to BCRA’s funding restriction – 

likewise limited the scope of “electioneering communications” that could be subject to BCRA’s 

disclosure requirements. (CTP refers to BCRA’s reporting and disclaimer requirements 

collectively as the “disclosure requirements.” See Pl. PI Memo. at 15. For the sake of clarity, 

we use the same terminology.) However, these same BCRA disclosure requirements were 

previously upheld by the Supreme Court in McConnell by a vote of 8-1. 

WRTL II did not overrule the holding or alter the analysis of McConnell in approving 

these disclosure requirements, a conclusion reached by the courts in both Citizens United and 

ORTL in rejecting the identical claims raised in those cases. For the reasons discussed below, 

this Court should reject CTP’s argument as well. 

A. The WRTL II Decision 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. 

The narrow focus of WRTL II is apparent on the face of the decision. The first sentence of the 

controlling opinion announces that the Court is considering the constitutionality of the funding 

prohibition, 2 U.S.C. § 441b(b)(2), as applied to WRTL’s specific ads. The Court did not even 

mention the disclosure requirements that also applied to those ads, nor did WRTL challenge 

them. 

In the complaint filed by WRTL, it made clear that, “WRTL does not challenge the 

reporting and disclaimer requirements for electioneering communications, only the prohibition 

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 97291.1 7

on using its corporate funds for its grass-roots lobbying advertisements.” WRTL II, No. 04-1260, 

Amended Verified Complaint for Declaratory and Injunctive Relief, 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 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 Wisconsin Right to Life, Inc., 2007 WL 868545, at *49 (Mar. 22, 

2007). 

For this reason, the Court in WRTL II reviewed only the constitutionality of BCRA’s 

funding restriction – not its disclosure requirements. Because the funding restriction and the 

disclosure requirements are subject to different standards of scrutiny and are 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 2671 (quoting McConnell, 540 U.S. at 205; First Nat’l Bank of 

Boston v. Bellotti, 435 U.S. 765, 786 (1978); Buckley, 424 U.S. at 44-45). See also ORTL, 2008 

WL 4186312, at *7 (“Plaintiff maintains that the Court should apply strict scrutiny in analyzing 

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 97291.1 8

Ohio’s [electioneering communication] disclosure provisions.... Defendants argue, and this 

Court agrees, that the appropriate standard of review regarding campaign finance disclosure laws 

is intermediate, not strict scrutiny.”). Examining the funding 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 review 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 or contributions. 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 

meaningful enforcement of the substantive provisions of the federal campaign finance laws. 

Buckley, 424 U.S. at 66-68. The WRTL II Court’s conclusion that the state’s anti-corruption and 

“corporate form” interests did not justify the expenditure restriction at issue in that case does not 

speak at all to whether the state’s informational and enforcement interests will support a 

disclosure requirement. 

For these reasons, the three-judge court in Citizens United rejected an identical claim that 

WRTL II must be read as overruling McConnell on the constitutionality of the disclosure 

provisions. The three-judge court said: 

Case 2:08-cv-00039-H Document 19-2 Filed 10/14/2008 Page 8 of 31
 97291.1 9

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. Although McConnell upheld 

the § 203 prohibition on its face, the Court left open the issue that was presented 

in WRTL, reserving it for decision on an as-applied basis. In contrast, when the 

McConnell Court sustained the disclosure provision of § 201and the disclaimer 

provision of § 311, it did so for the “entire range of electioneering 

communications” set forth in the statute. 

Citizens United, 530 F. Supp. 2d at 281. In response to Citizen United’s claim there that its 

speech was “constitutionally protected” under WRTL II, and therefore also shielded 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. 

Id. (citations omitted). For these reasons, the court rejected precisely the claim made by CTP 

here – that WRTL II necessarily must be read to invalidate the BCRA disclosure provisions. 

Likewise, the court in ORTL also rejected the argument CTP makes here, concluding not 

only that “the appropriate standard of review regarding campaign finance disclosure laws is 

intermediate, not strict[,]” ORTL, 2008 WL 4186312, at *7, but also that “McConnell is 

determinative of Plaintiff’s constitutional challenge.” Id. The court explained: 

Plaintiff ORTL argues WRTL provides a basis for overturning the 8-1 decision of 

the McConnell Court upholding electioneering communication disclosure 

requirements. ... The Court disagrees. The WRTL Court made clear that the 

Court was only considering the constitutionality of the BCRA’s federal 

electioneering communication funding prohibition.... The Court did not even 

mention disclosure requirements, much less consider their constitutionality. And, 

though the McConnell Court left open the possibility of as-applied challenges to 

the BCRA’s blackout provision (the issue presented in WRTL), the Court 

sustained the BCRA’s disclosure provisions for the “entire range of 

‘electioneering communications.’” 

Id. at *9. 

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 97291.1 10

B. McConnell Upheld BCRA’s “Electioneering Communication” Disclosure 

Requirements on Their Face. 

The Supreme Court’s analysis of the electioneering communications disclosure 

provisions in McConnell controls here. There is no dispute that McConnell rejected – by an 8-1 

vote – a facial challenge to these provisions. Applying intermediate scrutiny, eight Justices 

upheld both the reporting and the disclaimer requirements, 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 230 

(Rehnquist, C.J., joined by all Justices except Thomas, J.) (upholding the “electioneering 

communication” disclaimer requirements).3

 This analysis still serves to support the 

constitutionality of the provisions CTP challenges here. 

1. Contrary to CTP’s allegations, the disclosure requirements are subject to 

intermediate scrutiny, not strict scrutiny.

Relying upon the analysis in Buckley, the Court in McConnell applied an intermediate 

level of scrutiny to the disclosure requirements. In Buckley, the Court reviewed FECA’s 

comprehensive reporting and recording-keeping requirements for political committees, 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 

 

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). 

Case 2:08-cv-00039-H Document 19-2 Filed 10/14/2008 Page 10 of 31
 97291.1 11

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 

196.4 Moreover, the three concurring Justices expressly employed Buckley’s “substantial 

relation” standard, holding that disclosure requirements “do[] substantially relate” to the 

governmental interest in providing the electorate with information. Id. at 321 (Kennedy, J., 

concurring). 

Last month in ORTL, the court rejected the plaintiff’s argument that strict scrutiny is 

applicable to “electioneering communication” disclosure requirements. See ORTL, 2008 WL 

4186312, at *7. The ORTL court said: “With respect to campaign finance disclosure provisions, 

the Supreme Court has consistently applied an intermediate level of scrutiny.” Id. at *8 (citing 

Buckley, 424 U.S. at 64-66 and McConnell, 540 U.S. at 46). 

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 “exacting scrutiny” is the equivalent of strict scrutiny. Id. at 23 (“Buckley 

required ‘exacting scrutiny’ of disclosure provisions, 424 U.S. at 64, which it referred to as the 

‘strict test,’ id. at 66, and by which it meant ‘strict scrutiny.’”). 

 

4

 See Alaska Right To Life Comm. v. Miles, 441 F.3d 773, 788 (9th Cir. 2006) (“The 

[McConnell] Court was not ... explicit about the appropriate standard of scrutiny with respect to 

disclosure requirements. However, in addressing extensive reporting requirements applicable to 

... ‘electioneering communications’ ... the Court did not apply ‘strict scrutiny’ or require a 

‘compelling state interest.’ Rather, the Court upheld the disclosure requirements as supported 

merely by ‘important state interests.’”) (internal quotations omitted). 

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

Supreme Court in past cases.5

 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 it. 

Indeed, 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. It would confound reason to apply strict scrutiny 

both to expenditure limits, the most restrictive campaign finance regulation, and disclosure 

requirements, the least restrictive regulation. 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. 

 

5

 The Supreme Court has used the phrase “exacting scrutiny” to describe significantly 

different standards of review. In Buckley, the court applied “exacting scrutiny” by reviewing the 

challenged disclosure provisions for a “relevant correlation” or “substantial relation” to a 

“substantial” governmental interest.” 424 U.S. at 64. In McIntyre v. Ohio Elections 

Commission, 514 U.S. 334 (1995), the Supreme Court also applied “exacting scrutiny” to a state 

ballot measure disclaimer requirement but there reviewed whether the requirement was 

“narrowly tailored to serve an overriding state interest.” Id. at 347. Compare also Citizens 

Against Rent Control v. City of Berkeley, 454 U.S. 290, 299 (1981) (applying “exacting scrutiny” 

to ballot measure committee contribution limit by assessing whether the law “advance[s] a 

legitimate governmental interest significant enough to justify its infringement of First 

Amendment rights”) (emphasis added). 

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In Buckley, the Court acknowledged that “compelled disclosure has the potential for 

substantially infringing the exercise of First Amendment rights,” but found “that there are 

governmental interests sufficiently important to outweigh the possibility of infringement, 

particularly when the ‘free functioning of our national institutions’ is involved.” Buckley, 424 

U.S. at 66 (quoting Communist Party v. Subversive Activities Control Bd., 367 U.S. 1, 97 

(1961)). The Court then 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 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. The Court also noted 

that invalidating the disclosure provisions would disserve the First Amendment interests of the 

public: 

Plaintiffs’ disdain for BCRA’s disclosure provisions is nothing short of 

surprising. ... Curiously, Plaintiffs want to preserve the ability to run these 

advertisements while hiding behind dubious and misleading names like: ‘The 

Coalition-Americans Working for Real Change’ (funded by business 

organizations opposed to organized labor), ‘Citizens for Better Medicare’ (funded 

by the pharmaceutical industry), ‘Republicans for Clean Air’ (funded by brothers 

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Charles and Sam Wyly). ... Given these tactics, Plaintiffs never satisfactorily 

answer the question of how ‘uninhibited, robust, and wide-open’ speech can occur 

when organizations hide themselves from the scrutiny of the voting public. 

Plaintiffs’ argument for striking down BCRA’s disclosure provisions does not 

reinforce the precious First Amendment values that Plaintiffs argue are trampled 

by BCRA, but ignores the competing First Amendment interests of individual 

citizens seeking to make informed choices in the political marketplace.” 

Id. at 196-97 (quoting McConnell, 251 F. Supp. 2d 176, 237 (D.D.C. 2003)) (internal citations 

omitted) (emphasis added). The Court here should take note that the name “Committee for Truth 

in Politics” closely resembles the kind of “dubious and misleading” names mentioned by the 

Court in McConnell as grounds for upholding the disclosure requirement. 

Importantly, the Court upheld the “electioneering communication” disclosure 

requirements as “to the entire range of ‘electioneering communications,’” McConnell, 540 U.S. 

at 196, 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 

“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. 

C. Even Disclosure of “Issue” Discussion is Constitutional. 

CTP argues that disclosure is unconstitutional unless it is “unambiguously campaign 

related,” and never if it is “issue” related. The error of CTP’s argument is underscored by two 

types of laws requiring disclosure of issue advocacy that have been approved by the Supreme 

Court, namely those relating to lobbying and to ballot measure advocacy. These cases plainly 

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illustrate that the constitutionality of a disclosure requirement does not depend on whether the 

speech is “unambiguously campaign related.” 

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 Regulation of Lobbying Act, 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 report information about 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: 

Present-day legislative complexities are such that individual members of 

Congress cannot be expected to explore the myriad pressures to which they are 

regularly subjected. Yet full realization of the American ideal of government by 

elected representatives depends to no small extent on their ability to properly 

evaluate such pressures. ... Toward that end, Congress has not sought to prohibit 

these pressures. It 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 625-26.6

The fact that the Lobbying Act is unrelated to candidate campaigns and instead pertains 

only to issue speech was not constitutionally significant. The Supreme Court found that the 

 

6

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

87 F.3d 457, 460 (11th Cir. 1996) (upholding a state lobbying disclosure statute in light of the 

“interest of voters” in receiving information to “apprais[e] the integrity and performance of 

officeholders and candidates”); Minnesota State Ethical Practices Board v. NRA, 761 F.2d 509, 

512 (8th Cir. 1985) (finding that “the State of Minnesota’s interest in disclosure outweighs any 

infringement of the appellants’ first amendment rights”); Commission on Independent Colleges 

and Universities v. New York Temporary State Commission, 534 F. Supp. 489, 494 (N.D.N.Y. 

1982) (“The lobby law serves to apprise the public of the sources of pressure on government 

officials, thus better enabling the public to access their performance.”); Kimbell v. Hooper, 665 

A.2d 44, 49 (Vt. 1995) (“Vermont’s lobbyist disclosure law is a reasonable means of evaluating 

the lobbyist’s influence on the political process.”). 

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disclosure it requires 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 federal 

lobbying disclosure law as recently amended by the Honest Leadership and Open Government 

Act of 2007). 

Further, the Court has recognized that even “grassroots” or “indirect” lobbying, i.e., 

communications to persuade the public to lobby government officials, may be constitutionally 

subject to disclosure. The Harriss case upheld not only disclosure of lobbyists’ direct

communications with legislators, but also their “artificially stimulated” public “letter 

campaign[s]” to Congress. Harriss, 347 U.S. at 620; see also id. at 621 n.10 (noting that the Act 

covered lobbyists’ “initiat[ion] of propaganda from all over the country, in the form of letters and 

telegrams,” to influence the acts of legislators).7

 Such communications generally describe a 

legislative action favored by the sponsor, and urge the public to contact the relevant lawmakers 

regarding this action. See, e.g., Minn. State Ethical Practices Bd. v. NRA, 761 F.2d 509, 511 (8th 

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

from the NRA to its Minnesota members urging them to contact their state legislators about 

pending legislation). That these “classic” issue ads can be subject to disclosure fatally 

 

7

 Over twenty states have laws that require disclosure of expenditures funding grassroots 

lobbying. GAO REPORT, INFORMATION ON STATES’ LOBBYING DISCLOSURE REQUIREMENTS, B129874 (May 2, 1997), at 2. These statutes have been routinely upheld by the courts. See, e.g., 

Florida League of Prof'l Lobbyists, Inc., 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 (upholding Minnesota statute requiring disclosure from groups who conduct 

grassroots lobbying campaigns); Kimbell, 665 A.2d at 46 (upholding provisions of Vermont 

statute requiring reporting of indirect contacts to influence legislators, such as “solicitation of 

others to influence legislative or administrative action”). 

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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 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 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.”); see also Am. 

Constitutional Law Found., 525 U.S. at 205 (invalidating several Colorado regulations 

concerning the state’s ballot petition process but upholding the regulation requiring “sponsors of 

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ballot initiatives to disclose who pays petition circulators, and how much” because this 

requirement informed voters of “the source and amount of money spent by proponents to get a 

measure on the ballot”). 

These precedents led the Ninth Circuit to hold that, “[g]iven the Supreme Court’s 

repeated pronouncements, we think there can be no doubt that states may regulate express ballotmeasure advocacy through disclosure laws.” California Pro-Life Council v. Getman, 328 F.3d 

1088, 1104 (9th Cir. 2003), appeal after remand California Pro-Life Council, Inc. v. Randolph, 

507 F.3d 1172 (9th Cir. 2007). It also noted that “[t]hough the Buckley Court discussed the value 

of disclosure for candidate elections, the same considerations apply just as forcefully, if not more 

so, for voter-decided ballot measures.” Id. at 1105. Otherwise stated, the court recognized that 

the informational interest recognized by Buckley applies equally to ballot measure disclosure, 

although the underlying speech is neither “campaign related” nor the functional equivalent of 

express advocacy under the standard established by WRTL II.

8

 

8

 Another example of a disclosure system that regulates “pure” issue advocacy is the 

political broadcast disclosure requirements of the Federal Communications Act of 1934, 47 

U.S.C. §§ 301 et seq. Section 504 of BCRA amended the Communication Act to require 

television broadcasters to keep records of requests to broadcast “message[s]” about “a national 

legislative issue of public importance” or “any political matter of national importance.” 47 

U.S.C. §§ 315(e)(1)(B), (e)(1)(B)(iii). The records must include information about the name of 

the person purchasing the time, and in the case of an entity, a list of the chief executive officers 

or members of the executive committee or of the board of directors of such entity. 47 U.S.C. § 

315(e)(2). Because these records must be made available to the public, 47 U.S.C. § 315(e)(1), 

this statute ensures that the name of every person and entity wishing to broadcast an “issue ad” 

will be publicly disclosed. 

Although this statute thus regulates issue advocacy in arguably its “purest” form, the 

Supreme Court upheld the statute in McConnell. The Court determined that the requirements 

“seem likely to help the FCC determine whether broadcasters are carrying out their ‘obligations 

to afford reasonable opportunity for the discussion of conflicting views on issues of public 

importance,’ and whether broadcasters are too heavily favoring entertainment.” 540 U.S. at 240 

(internal citations omitted). 

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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 the “substantial relation” standard set 

forth in Buckley. Under this standard, the application of the disclosure requirements to CTP’s 

advertisements, i.e., to non-express-advocacy electioneering communications, is constitutional 

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

electorate and enforcing federal campaign finance laws. 

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.9

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 

 

9

 Amici note that CTP has not even attempted to meet the rigorous standard set by the 

Buckley decision for an as-applied exemption from a political disclosure statute based upon a 

“reasonable probability” that the disclosure will subject the regulated parties to “threats, 

harassment, or reprisals from either Government officials or private parties.” Buckley, 424 U.S. 

at 74. See also McConnell, 540 U.S. at 198, 199 (reiterating Buckley’s standard for as-applied 

challenges). See also Citizens United v. FEC, 530 F. Supp. 2d at 281 (noting that plaintiff “states 

that there may be reprisals, but it has presented no evidence to back up this bald assertion”). 

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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 a no reasonable interpretation 

other than as an appeal to vote for or 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 broadcast in very close proximity to a federal election that refers to a clearly 

identified candidate. 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. And for that reason, disclosure will

directly serve 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). See also McConnell, 540 U.S. at 240 (upholding political broadcast disclosure 

requirements), discussed in n.9, supra. 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 legitimacy and credibility of their messages. 

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2. BCRA’s Disclosure Requirements Serve the State’s Enforcement Interest.

McConnell also upheld FECA’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 (disclosure 

“gather[s] the data necessary to detect violations of the contribution limitations”). 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. A group’s expenditures for even non-express-advocacy electioneering 

communications is relevant to this determination. 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 purpose FEC may 

“evaluate the organization’s spending on Federal campaign activity, as well as any other 

spending by the organization”).10

Further, FEC regulations prohibit an outside group from coordinating its spending for an 

“electioneering communication” with either a candidate or party 11 C.F.R. § 109.21(c)(1). 

Without disclosure of the entire range of such electioneering communications, the FEC’s ability 

to enforce this restriction will be impaired. 

 

10 This document is available at http://www.fec.gov/law/cfr/ej_compilation/2007/notice_

2007-3.pdf.

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III. The FEC’s PAC-Status Enforcement Policy and “Major Purpose” Test Are 

Constitutional. 

Finally, CTP challenges the FEC’s “PAC-status enforcement policy” and the underlying 

“major purpose” test to determine when a group is a “political committee” subject to contribution 

limits and reporting requirements. See Pl. PI Memo. at 18-22. In particular, CTP claims that the 

FEC’s focus on “Federal campaign activity,” rather than on activity relating solely to the 

“nomination or election of a candidate” to determine an organization’s “major purpose,” renders 

the test impermissibly overbroad. Id. at 20. Additionally, CTP alleges that the FEC’s 

application of the “major purpose” test is unconstitutional because it is based on “ad hoc, caseby-case, analysis of vague and impermissible factors.” Id. at 21. 

CTP’s objections on both counts are misplaced. And indeed, almost identical claims 

were rejected just last month in RTAO, 2008 WL 4416282, when the district court refused to 

issue a preliminary injunction on these claims, a decision which the Fourth Circuit declined to 

disturb pending appeal. See RTAO, No. 08-1977, Order Denying Motion for Injunction Pending 

Appeal (4th Cir. Oct. 1, 2008). 

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

The Supreme Court has construed this statutory definition of “political committee” to 

apply only to so-called “major purpose” groups. The Supreme Court first articulated the “major 

purpose” test in Buckley in the context of analyzing FECA’s disclosure requirements. 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 

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

definition of “expenditure,” vague as well. The Court found the term “expenditure” caused “line 

drawing problems” by potentially “encompassing both issue discussion and advocacy of a 

political result,” so that the “political committee” standard (which relies on the definition of 

“expenditure”) might “reach groups engaged purely in issue discussion.” Id. at 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. at 79 (emphasis added). For such 

“major purpose” groups, the Court had no vagueness concern about the statutory “for the 

purpose of influencing” standard because, the Court held, “expenditures” by such groups “can be 

assumed to fall within the core area sought to be addressed by Congress. They are, by definition, 

campaign related.”11 Id. (emphasis added). See also McConnell, 540 U.S. at 170 n.64 (restating 

the “major purpose” test). 

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 has the “major purpose” to influence elections (the Buckley test). CTP 

challenges the Commission’s implementation of both prongs, albeit the first one just in passing. 

As to the first test, the Commission deems only those communications that include 

express advocacy to be “expenditures.” The Commission defines express advocacy to include 

both “magic words,” 11 C.F.R. § 100.22(a), and also communications that “could only be 

 

11 By comparison, “when the maker of the expenditure is not within these categories – when 

it is an individual other than a candidate or a group other than a ‘political committee,’” the Court 

narrowly construed the term “expenditure” to reach “only funds used for communications that 

expressly advocate the election or defeat of a clearly identified candidate.” Buckley, 424 U.S. at 

79-80 (emphasis added). 

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interpreted by a reasonable person” as advocating the election or defeat of a candidate. Id. at 

100.22(b). 

Seemingly as an aside, CTP asserts that the FEC’s subpart (b) definition of express 

advocacy is unconstitutional because it does not require “magic words.” See, e.g., Pl. PI Memo. 

at 14, 19. In support of this claim, CTP mischaracterizes the Fourth Circuit’s decision in Leake. 

Rather than requiring magic words, the Leake Court explicitly recognized that under WRTL II a 

“category of activity beyond the ‘magic words’ identified in Buckley [is] regulable as the 

‘functional equivalent of express advocacy.” Leake, 525 F. 3d at 282. As a legal and practical 

matter, the definition of “expressly advocating” at 11 C.F.R. § 100.22(b) is indistinguishable 

from the WRTL II test for the “functional equivalent of express advocacy,” which the Supreme 

Court described as whether an ad is “susceptible of no reasonable interpretation other than as an 

appeal to vote for or against a specific candidate.” WRTL II, 127 S.Ct. at 2667. In the RTAO 

decision last month, the district court agreed that the two standards are indistinguishable, 

explaining: 

[T]he test in section 100.22(b) is the same analysis as was enumerated in WRTL. 

WRTL required that the ad be deemed express advocacy “only if the ad is 

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

against a specific candidate.” 127 S. Ct. at 2667. Section 100.22(b) states that 

express advocacy can be found if “reasonable minds could not differ as to 

whether it encourages actions to elect or defeat one or more clearly identified 

candidate(s).” Because section 100.22(b) is virtually the same test stated by Chief 

Justice Roberts in the majority opinion of WRTL, ... the test enumerated in 

section 100.22(b) to determine express advocacy is constitutional. 

RTAO, 2008 WL 4416282, at *11 (emphasis added). Furthermore, the Fourth Circuit in Leake

characterized the WRTL II standard as “sufficiently ‘protective of political speech’ to allow 

legislators to regulate beyond Buckley’s ‘magic words’ approach.” Leake, 525 F. 3d at 282, 

quoting WRTL II, 127 S. Ct. at 2669 n.7. For this reason, CTP’s passing assertions that the 

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subpart (b) definition of express advocacy is unconstitutional should be disregarded by this 

Court. 

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

application of the Buckley “major purpose” test is vague and overbroad. See Pl. PI Memo. at 20. 

Specifically, CTP argues that, in assessing whether a group must register and operate as a 

“political committee,” the FEC has improperly expanded its “major purpose” inquiry by 

examining whether a group’s major purpose is “Federal campaign activity” rather than what CTP 

calls the “narrower” standard of whether the group’s major purpose is the “nomination or 

election of a candidate.” Pl. PI Memo. at 20. 

There is no basis for this purported distinction and, indeed, the Supreme Court has used 

the tests interchangeably. In FEC v. Massachusetts Citizens for Life, 479 U.S. 238 (1986) 

(“MCFL”), the Court held that a non-profit ideological corporation was not subject to the ban on 

express advocacy expenditures that applies to business corporations. See 2 U.S.C. § 441b. The 

Court noted, however, that MCFL could be required to register and operate as a “political 

committee” if it met the “major purpose” test set forth in Buckley. According to the Court, “it is 

undisputed on this record that MCFL” is not an entity “the major purpose of which is the 

nomination or election of a candidate.” MCFL, 479 U.S. at 253 n.6. But, the Court noted that: 

[S]hould MCFL’s independent spending become so extensive that the 

organization’s major purpose may be regarded as campaign activity, the 

corporation would be classified as a political committee. As such, it would 

automatically be subject to the obligations and restrictions applicable to those 

groups whose primary objective is to influence political campaigns. 

Id. at 262 (emphasis added). 

Thus, the MCFL Court set forth the Buckley standard – whether the group’s major 

purpose is “the nomination or election of a candidate” – and then equated that test to whether the 

group’s “major purpose may be regarded as campaign activity.” The distinction CTP draws 

Case 2:08-cv-00039-H Document 19-2 Filed 10/14/2008 Page 25 of 31
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between the two standards simply does not exist. CTP admits as much when it notes that the two 

tests set forth in MCFL are “synonyms” for each other. Pl. PI Memo. at 20. Thus, the FEC’s 

formulation of the “major purpose” test as one that examines a group’s “Federal campaign 

activity” is fully permissible under Buckley and MCFL. 

The district court in RTAO last month rejected precisely the claim made here by CTP: 

RTAO further alleges that the FEC has failed to incorporate the Buckley standard 

and has therefore gone beyond its statutory authority by making the major 

purpose test to focus on “federal campaign activity.” (Compl. ¶ 79) (emphasis 

added). There is really no difference between “campaign related,” as enumerated 

in Buckley and “campaign activity” as the FEC codified in the regulation. 72 

Fed. Reg. at 5601. 

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

In addition, CTP objects 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, “Political 

Committee Status,” 72 Fed. Reg. 5595 (Feb. 7, 2007), and in recent enforcement actions, is an 

overbroad and unbounded inquiry into “vague and impermissible” factors. Pl. PI Memo. at 21. 

Again, this objection is unwarranted. 

The Supreme Court in MCFL described political committees as “those groups whose 

primary objective is to influence political campaigns.” 479 U.S. at 262. CTP argues that as a 

constitutional matter, this test must be narrowed to only two permissible inquiries. First, CTP 

claims that the FEC can examine whether a group’s contributions and express advocacy 

expenditures constitute a majority of its total disbursements. Pl. PI Memo. at 21-22. 

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

those documents – to determine if they contain an “express intention” to operate as a political 

committee. Id. According to CTP, it is impermissible for the FEC to make any other inquiry. 

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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.” 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 in Washington, DC 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 

make “major purpose” determinations on a case-by-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 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, the Fourth Circuit described the test as an inquiry into whether an 

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

Case 2:08-cv-00039-H Document 19-2 Filed 10/14/2008 Page 27 of 31
 97291.1 28

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. 

The Fourth Circuit in 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 the Fourth 

Circuit expressly did not reach NCRL’s suggestion there – the same 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. 

In rejecting virtually the same claim made here, the district court in RTAO last month 

said: 

To determine what a “major purpose” is, courts have permitted evaluation of 

public statements, an organization’s spending or contributions, letters to primary 

contributors, and other non-public statements. Courts have even mentioned that 

when an entity organizes itself as a 527, it is “inherently indicative of its choice to 

principally engage in electoral activity, which goes a long way to satisfying the 

major purpose test.” ...

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. 72 Fed. Reg. 5595, 5602. Because the FEC employs 

the same factors the Supreme Court has approved in these aforementioned cases, 

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). 

Case 2:08-cv-00039-H Document 19-2 Filed 10/14/2008 Page 28 of 31
 97291.1 29

Finally, CTP argues that in Leake the Fourth Circuit disapproved a North Carolina law 

which established the test for political committee status as whether a group had “a” major 

purpose to influence campaigns. The court held the appropriate test under Buckley is to decide 

whether a group has “the” major purpose to influence campaigns. Leake, 525 F.3d at 289-90. 

However, CTP goes on to incorrectly state that the “FEC’s enforcement policy regarding PAC 

status does not follow Leake” in this regard. Pl. PI Memo. at 19. There is no conflict between 

the Leake ruling and the rule as applied by the FEC – which also uses a test of “the” major 

purpose. See 72 Fed. Reg. at 5601 (“Not only must the organization have raised or spent $1,000 

in contributions or expenditures, but it must additionally have the major purpose of engaging in 

Federal campaign activity.”) (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 reject CTP’s arguments and uphold the FEC’s PACstatus enforcement policy and implementation of the major purpose standard. 

CONCLUSION 

For the foregoing reasons, the challenged “electioneering communication” disclosure 

requirements and the FEC’s procedures for determining an organization’s “political committee” 

status, including its implementation of the underlying “major purpose” test, do not violate the 

First Amendment. Accordingly, this Court should find that CTP is unlikely to succeed on the 

merits of its challenge and deny CTP’s motion for a preliminary injunction.

Case 2:08-cv-00039-H Document 19-2 Filed 10/14/2008 Page 29 of 31
 97291.1 30

Respectfully submitted this 14th day of October, 2008. 

/s/ Anita S. Earls______________ 

Anita S. Earls 

N.C. Bar No. 15597 

115 Market St. 

Suite 470 

Durham, NC 27701 

(919) 323-3380 

Local Counsel for Amici Curiae 

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) 

Paul S. Ryan 

(D.C. Bar No. 502514) 

Tara Malloy 

(NY Bar No. 4251005) 

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 

Case 2:08-cv-00039-H Document 19-2 Filed 10/14/2008 Page 30 of 31
 97291.1 31

CERTIFICATE OF SERVICE 

This is to certify that on October 14, 2008, a true and accurate copy of the foregoing 

MEMORANDUM OF THE CAMPAIGN LEGAL CENTER AND DEMOCRACY 21 AS 

AMICI CURIAE IN OPPOSITION TO PLAINTIFFS’ MOTION FOR A PRELIMINARY 

INJUNCTION was served on the counsel of record, Paul Stam, Jr. for the Plaintiffs, Claire N. 

Rajan for the Defendant and R.A. Renfer, Jr. for the Defendant by electronically filing the same 

with the Court, using the CM/ECF system. In addition, a courtesy copy was sent by email to:

James Bopp, Jr. 

 jboppjr@aol.com

Richard E. Coleson 

 rcoleson@bopplaw.com

Clayton J. Callen 

 ccallen@bobblaw.com

Sarah Troupis 

 stroupis@bopplaw.com

Bopp, Coleson & Bostrom 

1 South Sixth Street 

Terre Haute, IN 47807-3510 

Counsel for Plaintiffs

Thomasenia P. Duncan 

 tduncan@fec.gov

David Kolker 

 dkolker@fec.gov

Harry J. Summers 

 hsummers@fec.gov

Federal Election Commission 

999 E Street, NW 

Washington, DC 20436 

Counsel for Defendant 

/s/ Anita S. Earls____________ 

Anita S. Earls 

Case 2:08-cv-00039-H Document 19-2 Filed 10/14/2008 Page 31 of 31
UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF NORTH CAROLINA 

NORTHERN DIVISION 

No. 2:08-cv-00039 

__________________________________________ 

) 

HOLLY ANN KOERBER and ) 

COMMITTEE FOR TRUTH IN POLITICS, INC., ) 

) 

Plaintiffs, ) 

) ORDER 

v. ) 

) 

FEDERAL ELECTION COMMISSION, ) 

) 

Defendant. ) 

__________________________________________) 

Pending before the Court is an unopposed motion by the Campaign Legal Center and 

Democracy 21 for leave to appear in this cause as amici curiae. For good cause shown, the 

motion for leave to participate as amici curiae by the Campaign Legal Center and 

Democracy 21 is hereby GRANTED. 

This ____ day of October, 2008. 

___________________________________ 

MALCOLM J. HOWARD 

Senior U.S. District Judge 

Case 2:08-cv-00039-H Document 19-3 Filed 10/14/2008 Page 1 of 1