IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF NORTH CAROLINA 

NORTHERN DIVISION 

NO. 2:08-CV-39-H(1) 

HOLLY LYNN KOERBER and 

COMMITTEE FOR TRUTH IN 

POLITICS, INC., 

Plaintiffs, 

ORDER 

v. 

FEDERAL	 ELECTION COMMISSION, 

Defendant. 

This matter is before the court on the following motions 

filed by plaintiffs: (1) motion to expedite [DE #4]; (2) motion 

for a preliminary injunction [DE #3]; and (3) motion to 

consolidate the hearing of plaintiffs' motion for a preliminary 

injunction with a trial on the merits [DE #5]. Appropriate 

memoranda have been filed by the parties and amici curiae 

Democracy 21 and Campaign Legal Center, and the court heard 

arguments at a hearing on October 16, 2008. This matter is ripe 

for adjudication. 

BACKGROUND 

I.	 The Parties 

Plaintiff Committee for Truth in politics, Inc. ("CTP") is 

a nonprofit, North Carolina corporation incorporated in 

September 2008 and organized pursuant to 26 U.S.C. § 501(c) (4) 

Case 2:08-cv-00039-H Document 33 Filed 10/29/2008 Page 1 of 18
as an organization primarily devoted to social welfare. CTP has 

produced two television advertisements that discuss Senator 

Barack Obama's voting record on certain issues (partial birth 

abortion and punishment of sex offenders) and invite viewers to 

"Call Senator Obama." CTP has spent over $10,000 airing the 

first advertisement, entitled "Basic Rights," in several states, 

including North Carolina. CTP intends to broadcast this 

advertisement, as well as a second advertisement, entitled 

"Tragic, but True," prior to the general election in November. 

Defendant Federal Elections Commission ( "FEC" ) is an 

independent regulatory agency of the United States Government. 

The FEC is vested with the authority to administer and enforce 

the federal campaign finance laws and to oversee the pUblic 

funding of Presidential elections. 

Plaintiff Holly Lynn Koerber ("Koerber" ) resides in 

Elizabeth City, North Carolina, one of the areas targeted by 

CTP's advertisements. She wishes to continue receiving CTP' s 

broadcasts and is suing to enjoin the FEC from exercising its 

enforcement powers against CTP. 

II. Procedural Background 

CTP and Koerber filed this action on October 3, 2008, 

challenging §§ 201 and 311 of the Bipartisan Campaign Reform Act 

of 2002 ("BCRA") (collectively referred to as "the disclosure 

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Case 2:08-cv-00039-H Document 33 Filed 10/29/2008 Page 2 of 18
requirements") 1 and FEC's enforcement policy concerning the 

determination of political action committee ("PAC") status. 

Section 201 is a reporting provision and requires corporations 

spending more than $10,000 on electioneering communications2 to 

file a report with the FEC disclosing the names and addresses of 

anyone who contributes $1,000 or more for the purpose of 

furthering electioneering communications. See 2 U.S.C. § 

434 (f) (1), (2). Section 311 is a disclaimer provision and 

requires electioneering communications not authorized by a 

candidate to bear the statement " [name of sponsor] is 

responsible for the content of this advertising" and to include 

the name, address and telephone number or website address of the 

sponsor. See 2 U. S . C. § 441d (a) (3) . Although CTP has 

apparently complied with the disclaimer requirements of § 311, 

it has not filed a report in compliance with § 201 and has no 

intention of doing so. 

'Section 201 is codified at 2 U.S.C. § 434 (f), and section 

311 is codified at 2 U.S.C. § 441d(a) . 

2"Electioneering communications" are def ined as "broadcast, 

cable, or satellite communication [s]" that" [rl efer to a clearly 

identified candidate for Federal office" and are "publicly 

distributed within 60 days before a general election for the 

office sought by the candidate. 2 U.S.C. § 434 (f) (3); 11 C.F.R. 

§ 100.29. 

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Plaintiffs allege that the disclosure requirements are 

unconstitutional as applied, (Compl. 12), and that the FEC's 

PAC-status enforcement policy is unconstitutional, both facially 

and as applied to CTP and its activities, and is void as 

unauthorized, (Compl. 15). CTP requests preliminary and 

permanent injunctive relief enjoining the FEC from enforcing 

§§ 201 and 311 and its PAC-status policy against CTP and its 

activities. (Compl. 17.) 

COURT'S DISCUSSION 

I. Motion for Preliminary Injunction 

A. Preliminary Injunction Standard 

A preliminary injunction is "an extraordinary remedy 

involving the exercise of very far-reaching power, which is to 

be applied 'only in [the] limited circumstances' which clearly 

demand it." Direx Israel, Ltd. v. Breakthrough Med. Corp., 952 

F.2d 802, 811 (4th Cir. 1992) (quoting Instant Air Freight Co. 

v. C.F. Air Freight, Inc., 882 F.2d 797, 800 (3d Cir. 1989». 

"Whenever the extraordinary writ of injunction is granted, it" 

should be tailored to restrain no more than what is reasonably 

required to accomplish its ends. Particularly is this so when 

preliminary relief, on something less than a full record and 

full resolution of the facts, is granted." ConSOlidation Coal Co. 

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v. Disabled Miners of S.W. Va., 442 F.2d 1261, 1267 (4th Cir. 

1971) . 

In determining whether a preliminary injunction should 

issue, the court is guided by the hardship balancing test set 

forth in Blackwelder Furniture Co. v. Seilig Mfg. Co., 550 F.2d 

189 (4th Cir. 1977). This test requires the court to consider 

four factors: 

(1) the likelihood of irreparable harm to the 

plaintiff if injunctive relief is denied; 

(2) the likelihood of harm to the defendant if 

injunctive relief is granted; 

(3) the likelihood that the plaintiff will 

succeed on the merits; and 

(4) the public interest. 

Rum Creek Coal Sales, Inc. v. Caperton, 926 F.2d 353,359 (4th 

Cir. 1991). The "' [p]laintiff bears the burden of establishing 

that each of these factors supports granting the injunction.'" 

952 F.3d at 812 (alteration in original) (quoting 

Technical PUbl'g Co. v. Lebhar-Friedman, Inc. 729 F.2d 1136, 

1139 (7th Cir. 1984)). 

The hardship balancing test "correctly emphasizes that, 

where serious issues are before the court, it is a sound idea to 

maintain the status quo ante litem, provided it can be done 

without imposing too excessive an interim burden upon the 

defendant. " Blackwelder, 550 F. 2d at 194 - 95. Thus, the most 

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important factors are the likelihood of irreparable harm to the 

plaintiff and the likelihood of harm to the defendant. Rum 

Creek, 926 F. 2d at 359. "If, after balancing those two factors, 

the balance 'tips decidedly' in favor of the plaintiff, a 

preliminary injunction will be granted if 'the plaintiff has 

raised questions going to the merits so serious, substantial, 

difficult and doubtful, as to make them fair ground for 

litigation and thus for more deliberate investigation." Id. 

(citations omitted) (quoting Blackwelder, 550 F.2d at 195). 

Where, as here, however, "the irreparable harm . alleged is 

inseparably linked" to a First Amendment claim, a 

"[d]etermination of irreparable harm. . requires analysis of 

[the plaintiff's] likelihood of success on the merits." Newsom 

ex rel. Newsom v. Albemarle Co. School Bd., 354 F.3d 249, 254-55 

(4th Cir. 2003). Therefore, the court will consider that 

factor first. See id. 

B. Likelihood of Success on the Merits 

1. Disclosure Requirements 

A determination of plaintiffs' likelihood of success on the 

merits requires the court to first decide the appropriate 

standard of review for the regulations at issue. Plaintiffs 

contend that strict scrutiny applies because §§ 201 and 311 

restrict core political speech protected by the First Amendment. 

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(Plfs.' Prelim. Injunction Memo. at 23 (quoting statement in FEC 

v. Wisconsin Right to Life, 127 S. Ct. 2652 (2007) ("WRTL IF) 

that "[bJ ecause BCRA § 203 burdens political speech, it is 

sUbj ect to strict scrutiny")) The FEC, on the other hand, 

argues that intermediate scrutiny applies. 

In Buckley v. Valeo, 424 U.S. 1 (1976), and again in 

McConnell v. FEC, 540 U.S. 93 (2003), the Supreme Court refused 

to apply strict scrutiny to campaign finance laws limiting the 

amount of political contributions and imposing certain reporting 

and record-keeping requirements. Reasoning that "a limitation 

upon the amount that anyone person or group may contribute to a 

candidate or political committee entails only a marginal 

restriction upon the contributor's ability to engage in free 

communication," the Court held that "a contribution limit 

involving even 'significant interference' with associational 

rights is nevertheless valid if it satisfies the 'lesser demand' 

of being •closely drawn' to match a 'sufficiently important 

interest. I It McConnell, 540 U.S. at 136 (internal quotation

marks omitted) (quoting FEC v. Beaumont, 539 U.S. 146, 162 

(2003)). 

As in Buckley and McConnell, the provisions involved here 

have only a marginal impact on the ability of contributors to 

engage in effective political speech. As such, they are not 

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subject to strict scrutiny, but to the lesser standard of 

intermediate scrutiny applied in Buckley and McConnell. See 

Ohio Right to Life Society, Inc. v. Ohio Elections Comm'n, No. 

2:08-CV-492, 2008 WL 4186312 (S.D. Ohio Sept. 5, 2008) (holding 

that "appropriate standard of review regarding campaign finance 

disclosure laws is intermediate, not strict scrutiny"). 

Under the intermediate scrutiny standard, plaintiffs would 

prevail on their claim if it is determined that there is no 

"'relevant correlation' or 'substantial relation' between the 

governmental interest and the information required to be 

disclosed." Buckley, 424 U.S. at 64. Plaintiffs do not 

address whether a relevant correlation or substantial relation 

exists, but instead argue that CTP's advertisements are not 

"unambiguously campaign related" and therefore may not be 

constitutionally regulated. (Plfs.' Prelim. Injunction Memo. at 

10-15.) This argument is, for all intents and purposes, the 

same argument made and rejected by the Supreme Court in 

McConnell. 

In McConnell, the plaintiffs challenged BCRA's disclosure 

requirements, arguing that "Congress cannot constitutionally 

require disclosure of 'electioneering communications' 

wi thout making an exception for those 'communications' that do 

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not meet Buckley's definition of express advocacy.'" McConnell, 

540 U.S. at 190. The Supreme Court rej ected that argument, 

explaining: 

[A] plain reading of Buckley makes clear that the 

express advocacy limitation, in both the expenditure 

and the disclosure contexts, was the product of 

statutory interpretation rather than a constitutional 

command. In narrowly reading the [Federal Election 

Campaign Act] provisions in Buckley to avoid problems 

of vagueness and overbreadth, we nowhere suggested 

that a statute that was neither vague nor overbroad 

would be required to toe the same express advocacy 

line. 

McConnell, 540 U.S. at 191-92 (footnote omitted) . The McConnell 

Court then held that "electioneering communication" was neither 

vague nor overbroad for purposes of § 201 and that the important 

governmental interests recognized in Buckley "providing the 

electorate with information, deterring actual corruption and 

avoiding any appearance thereof, and gathering the data 

necessary to enforce more substantive electioneering 

restrictions" - justified the disclosure requirements. Id. at 

196. Reaffirming Buckley, the McConnell Court rejected the 

'At issue in Buckley were Federal Election Campaign Act 

provisions that imposed a $1,000 ceiling on spending "relative 

to a clearly identified candidate" and required disclosure of 

contributions and expenditures made "for the purpose of 

influencing" the nomination or election of candidates for 

federal office. Concerned that the disclosure provision may 

·'encompass [] both issue discussion and advocacy of a political 

result," the court limited its construction of the statute "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. 

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Case 2:08-cv-00039-H Document 33 Filed 10/29/2008 Page 9 of 18
plaintiffs' facial attack on § 201 but left open the possibility 

for as-applied challenges where there is a reasonable 

probability that "'compelled disclosure of a party's 

contributors' names will sUbject them to threats, harassment, or 

reprisals from either Government officials or private parties.'" 

Id. at 198 (quoting Buckley, 424 U.S. at 74). 

The Supreme Court's subsequent decision in WRTL II did not, 

as plaintiffs argue, overturn McConnell. In WRTL II, the Court 

considered the constitutionality of BCRA's provision prohibiting 

corporate funding of electioneering communications as applied to 

the plaintiff's issue advocacy advertisements. The provision at 

issue in WRTL II was an expenditure regulation that not only 

restricted, but actually prohibited, some core political speech 

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. 

Plaintiffs have presented no reason to warrant a departure 

from the reasoning and outcome of McConnell. As recognized in 

both Buckley and McConnell, the government has a significant 

interest in safeguarding the political process by "deter [ring] 

actual corruption and avoid[ing] the appearance of corruption by 

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exposing large contributions and expenditures to the light of 

pUblicity," by providing the "electorate with information . 

to aid the voters in evaluating those who seek federal office," 

and by "gathering the data necessary to detect violations" of 

the federal campaign finance laws. Buckley, 424 U.S. at 66-68. 

Disclosure requirements, such as §§ 201 and 311, are "the least 

restrictive means of curbing the evils of campaign ignorance and 

corruption that Congress found to exist." Buckley, 424 U.S. at 

68. The correlation between these provisions and the 

governmental interests is not only relevant but strong. There 

is no indication that revelation of the sponsors' identities may 

result in harassment, threats or reprisals, and the court finds 

that plaintiffs are not likely to prevail on their claim 

challenging the disclosure requirements as applied to CTP. 

2. PAC Enforcement Policy 

Plaintiffs further seek to enjoin the FEC's use of its PACstatus enforcement policy in investigating CTP and others to 

determine whether they are subject to regulation as "political 

committees.'" In Buckley, the Supreme Court limited the 

definition of "political committee" to organizations controlled 

'The FEC has not commenced an investigation against CTP and 

there is nothing before the court that would indicate an 

investigation is imminent. Nevertheless, plaintiffs seek to 

ensure that no such investigation will be initiated prior to a 

ruling on the merits of plaintiffs' claims. 

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Case 2:08-cv-00039-H Document 33 Filed 10/29/2008 Page 11 of 18
by a candidate or whose "maj or purpose" is the "nomination or 

election of a candidate." The court held that the expenditures 

of "'political committees' so construed are, by 

definition, campaign related" and thus regulable. Buck~, 424 

U.S. at 79. Plaintiffs contend that "the FEC's enforcement 

policy for determination of PAC status goes beyond any 

permissible construction of the major-purpose test, employs 

invalid regulations to determine whether the entity received a 

'contribution' or made an 'expenditure,' is unconstitutionally 

vague and overbroad and 'is in excess of the statutory 

authority of the FEC." (Plfs.' Prelim. Injunction Memo. 

at 22.) Plaintiffs argue that the FEC's focus on "Federal 

campaign activity," rather than on activity relating solely to 

the "nomination or election of a candidate" in determining an 

organization's \\major purpose" renders the FEC's policy 

overbroad. (Id. at 20.) Additionally, plaintiffs claim that 

the FEC's application of the "major purpose" test is 

unconstitutional because it is based on "ad hoc, case-by-case 

analysis of vague and impermissible factors." (Id. at 21.) 

The FEC argues that its policy' is not reviewable because it 

does not constitute final agency action within the meaning of 

'The policy challenged by plaintiffs provides, in pertinent 

part, as follows: 

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Case 2:08-cv-00039-H Document 33 Filed 10/29/2008 Page 12 of 18
[D] etermining political committee status under FECA, 

as modified by the Supreme Court, requires an analysis 

of both an organization's specific conduct -- whether 

it received $1,000 in contributions or made $1,000 in 

expenditures as well as its overall conduct 

whether its major purpose is Federal campaign activity 

(i.e., the nomination or election of a Federal 

candidate). Neither FECA, its subsequent amendments, 

nor any judicial decision interpreting either, has 

substituted tax status as an acceptable proxy for this 

conduct-based determination. 

[A] n organization can satisfy the major 

purpose doctrine through sufficiently extensive 

spending on Federal campaign activity. 

An analysis of public statements can also be 

instructive in determining an organization's purpose. 

Because such statements may not be inherently 

conclusive, the Commission must evaluate the 

statements of the organization in a fact-intensive 

inquiry giving due weight to the form and nature of 

the statements, as well as the speaker's position 

within the organization. 

The Federal courts' interpretation of the 

constitutionally mandated major purpose doctrine 

requires the Commission to conduct investigations into 

the conduct of specific organizations that may reach 

well beyond pUblicly available advertisements. The 

Commission may need to examine statements by the 

organization that characterize its activities and 

purposes. The Commission may also need to evaluate 

the organization's spending on Federal campaign 

activity, as well as any other spending by the 

organization. In addition, the Commission may need to 

examine the organization's fundraising appeals. 

Because. . the major purpose doctrine requires 

a fact-intensive analysis of a group's campaign 

activities compared to its activities unrelated to 

campaigns, any rule must permit the Commission the 

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the Administrative Procedure Act. See 5 U.S.C. § 704 ("Agency 

action made reviewable by statute and final agency action for 

which there is no other adequate remedy in a court are subject 

to judicial review."). This argument was made by the FEC and 

rejected by the District Court for the Eastern District of 

Virginia in The Real Truth About Obama, Inc., v. FEC, No. 3:08­

CV-483, 2008 WL 4416282 (E.D. Va. Sept. 24, 2008). This court 

agrees with the Eastern District of Virginia that plaintiffs may 

challenge the FEC's policy: 

[T] he rule establishing what the FEC would 

consider as a 'political committee' is a standard set 

by the FEC 

While there is no specific definition for "major 

purpose," the rights and obligations of parties can 

still be determined from the FEC rule, as enforcement 

power exists through the jUdicial construct of the 

term "maj or purpose." Therefore, Defendant's claim 

that the challenged rule is not reviewable under the 

APA because it is not a final agency action fails. 

The Real Truth About Obama, Inc., 2008 WL 4416282 *9. The 

court, therefore, turns its attention to determining the 

likelihood that the FEC's policy is unconstitutional. 

flexibility to apply 

organization's conduct. 

the doctrine to a particular 

Supplemental Explanation 

Committee Status, 72 Fed. Reg. 

omitted) . 

and 

5

Justificati

595-02 (Feb. 

on 

7, 

on 

2007) 

POlitical 

(citations 

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Case 2:08-cv-00039-H Document 33 Filed 10/29/2008 Page 14 of 18
As noted in the FEC's Supplemental Explanation and 

Justification, the test used for making determinations of 

"political committee" status is flexible. It recognizes that an 

organization's "major purpose" is inherently comparative and 

necessarily requires an understanding of an organization's 

overall activities, as opposed to its stated purpose. See 72 

Fed. Reg. 5595-02. In determining whether an organization has 

as its "major purpose" the "nomination or election of a 

candidate," the FEC considers a number of factors, including the 

organization's public statements, representations made in 

government filings, statements made to potential donors, 

internal governing documents and the proportionate amount of 

spending on election-related activity. No one factor is 

considered determinative, and the rule does not specify what 

weight is to be accorded the various factors. However, that 

alone does not render the FEC's rule constitutionally 

impermissible on its face. "[T)here is no 'basis for suggesting 

that the agency has a statutory duty to promulgate regulations 

that, either by default rule or by specification, address every 

conceivable question.'" Shays v. FEC, 528 F.3d 914, 931 (4th 

cir. 2008) (quoting Shalala v. Guernsey Mem. Hosp., 514 U.S. 87, 

96 (1995)). The FEC "has discretion to leave a large gray area 

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and fill it in later through adjudication and advisory opinions. 

Id. 

Furthermore, the test employed by the FEC focuses on "the 

major purpose" of the organization. It does not ask, as 

plaintiffs assert, whether influencing campaigns is "a major 

purpose" of the group. Nor has plaintiff presented any evidence 

to suggest that the FEC is applying its rule that broadly. 

Given the presumption to which the FEC is entitled - that it 

"will act properly and according to law," FCC v. Schreiber, 381 

U.S. 279, 296 (1965), and "enforce its rule in good faith," 

Shays v. FEC, 528 F.3d 914, 930 (4th Cir. 2008), the court finds 

that plaintiffs have failed to demonstrate a likelihood of 

success on the merits as to this claim. 

C. Other Blackwelder Factors 

The absence of evidence demonstrating a likelihood of 

success on the merits alone establishes that preliminary 

injunctive relief is inappropriate in this case. Nevertheless, 

the court has considered the remaining Blackwelder factors and 

has determined that they too weigh in favor of the FEC and 

against the issuance of a preliminary injunction. The court 

recognizes that even minimal infringement of First Amendment 

rights has been held to constitute irreparable injury. 

~, Newsom v. Norris, 888 F.2d 371, 378 (6th Cir. 1989) 

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(citing Elrod v. Burns, 427 U.S. 347, 373 & 374-75 (1976) 

(plurality opinion of Brennan, J., and concurring opinion of 

Stewart, J.)). Considering the weakness of plaintiffs' claims, 

the court finds that the balance of harms favors the FEC, 

however. Moreover, the court finds that plaintiffs have not 

raised questions "so serious, substantial, difficult and 

doubtful, as to make them fair ground for litigation and . 

more deliberate investigation." Blackwelder, 550 F.2d at 195. 

In light of the government's strong interests in providing the 

electorate with information to assist the voters in making 

informed election decisions, in deterring actual and perceived 

corruption and in enforcing the federal campaign finance laws, 

the court is also unable to say that the public interest would 

be served by enjoining either the disclosure requirements or the 

FEC's PAC enforcement policy. 

Plaintiffs have not demonstrated that the Blackwelder 

factors support injunctive relief. Therefore, the court denies 

plaintiffs' motion for a preliminary injunction. 

II. Motion to Expedite & Motion to Consolidate 

The court has carefully considered plaintiffs' motions to 

expedite and to consolidate the preliminary injunction hearing 

with a trial on the merits, as well as the parties' written and 

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Case 2:08-cv-00039-H Document 33 Filed 10/29/2008 Page 17 of 18
oral arguments supporting and opposing these motions. In 

discrecion, the court DENIES plaintiffs' motions. 

CONCLUSION 

Plaintiffs' motion for a preliminary injunction [DE 1;3], 

plalntiffs' [notion to expedite [DE #4], and plaintiffs' motion 

to consolidate [DE #5] are hereby DENIED. 

q~ This If --day of October 2008.".--­

/i~ ~~__ MALCOLM J. HOWARD 

Senior united States District Judge 

Ac Greenville NC 

lj31 

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