No. 08-2257

United States Court of Appeals for the Fourth Circuit

____________

Holly Lynn Koerber and

Committee for Truth in Politics, Inc., Plaintiffs-Appellants

v.

Federal Election Commission, Defendant-Appellee

____________

Appeal from the United States District Court for the

Eastern District of North Carolina, Northern Division

____________

Appellants’ Brief

____________

James Bopp, Jr.

Richard E. Coleson

Clayton J. Callen

BOPP, COLESON & BOSTROM

1 South Sixth Street

Terre Haute, IN 47807-3510

812/232-2434 telephone

812/235-3685 facsimile

Counsel for Appellants

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DISCLOSURE OF CORPORATE AFFILIATIONS AND OTHER INTERESTS

Only one form needs to be completed for a party even if the party is represented by more than one

attorney. Disclosures must be filed on behalf of all parties to a civil, agency, bankruptcy or

mandamus case. Corporate defendants in a criminal or post-conviction case and corporate amici

curiae are required to file disclosure statements. Counsel has a continuing duty to update this

information. 

No. _______ Caption: __________________________________________________

Pursuant to FRAP 26.1 and Local Rule 26.1,

_______________________ who is _______________________,

 (name of party/amicus) (appellant/appellee/amicus) 

makes the following disclosure:

1. Is party/amicus a publicly held corporation or other publicly held entity? 

YES NO

2. Does party/amicus have any parent corporations?

YES NO

If yes, identify all parent corporations, including grandparent and great-grandparent

corporations:

3. Is 10% or more of the stock of a party/amicus owned by a publicly held corporation or other

publicly held entity?

YES NO

If yes, identify all such owners:

4. Is there any other publicly held corporation or other publicly held entity that has a direct

financial interest in the outcome of the litigation (Local Rule 26.1(b))?

YES NO

If yes, identify entity and nature of interest:

5. Is party a trade association? (amici curiae do not complete this question)

YES NO

If yes, identify any publicly held member whose stock or equity value could be affected

substantially by the outcome of the proceeding or whose claims the trade association is

pursuing in a representative capacity, or state that there is no such member:

6. Does this case arise out of a bankruptcy proceeding? 

YES NO

If yes, identify any trustee and the members of any creditors’ committee:

_______________________________ ________________________

 (signature) (date)

Case: 08-2257 Document: 16-1 Date Filed: 03/16/2009 Page: 2
Table of Contents

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

Issues. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Facts.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Summary of Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

I. Standards: First Amendment Versions Are Required.. . . . . . . . . . . . . . . . . 8

A. Appellate Standard of Review... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

B. Preliminary Injunction Standard.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

1. General Standard.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

2. WRTL-II Standard.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

3. First Amendment Context: Standards & Interests.. . . . . . . . . . . . 11

II. CTP Has Likely Success on the Merits.. . . . . . . . . . . . . . . . . . . . . . . . . . . 20

A. Campaign-Finance Laws May Only Regulate UnambiguouslyCampaign-Related Activity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

B. The Disclosure Requirements Are Unconstitutional as Applied. . . . . 32

C. The FEC’s PAC-Enforcement Policy Is Unconstitutional and Void. . 39

III. CTP Has Irreparable Harm... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

IV. The Balance of Harms Favors Appellants. . . . . . . . . . . . . . . . . . . . . . . . . 55

i

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V. The Public Interest Favors Appellants... . . . . . . . . . . . . . . . . . . . . . . . . . . 56

Conclusion.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

Oral Argument.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58

ii

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Table of Authorities

Cases

AFL-CIO v. FEC, 333 F.3d 168, 176 (D.C. Cir. 2003) . . . . . . . . . . . . . . . . . . 34, 50

Alaska Right to Life Committee v. Miles, 441 F.3d 773 (9th Cir. 2006). . . . . . . . 20

Austin v. Mich. State Chamber of Commerce, 494 U.S. 652 (1990). . . . . . . . . . . 39

Blackwelder Furniture Company of Statesville v. Seilig Manufacturing Company, 550 F.2d 189 (4th Cir. 1999).. . . . . . . . . . . . . . . . . . . . . . . . . . . . 9-10, 47

Buckley v. Valeo, 424 U.S. 1 (1976). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

California Pro-Life Council v. Getman, 328 F.3d 1088 (9th Cir. 2003). . . . . 30-31

Center for Individual Freedom v. Ireland, Nos. 08-190 & 08-1133, 2008 WL

4642268 (S.D. W. Va. Oct. 17, 2008) . . . . . . . . . . . . . . . . 11, 15-16, 18, 55-57

Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984). . . 15

Citizens United v. FEC (No. 08-205) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Davis v. FEC, 128 S. Ct. 2759 (2008).. . . . . . . . . . . . . . . . . . . . . . . . . . . . 33, 38, 48

Dixon v. Edwards, 290 F.3d 699 (4th Cir. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Dominion Video Satellite, Inc. v. EchoStar Satellite Corp., 269 F.3d 1149

(10th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Elrod v. Burns, 427 U.S. 347 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

Eu v. San Francisco County Democratic Cent. Comm., 489 U.S. 214 (1989).. . . 19

Faucher v. FEC, 928 F.2d 468 (1st Cir.1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

FEC v. Christian Action Network, 110 F.3d 1049 (4th Cir. 1997).. . . . . . . . . 16, 53

iii

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FEC v. Christian Coalition, 52 F. Supp. 2d 45 (D.D.C. 1999). . . . . . . . . . . . 51-53

FEC v. Florida for Kennedy Comm., 681 F.2d 1281 (11th Cir. 1982) . . . . . . 14, 54

FEC v. Machinists Non-Partisan Political League, 655 F.2d 380 (D.C. Cir.

1981) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 33, 38, 48-50, 54

FEC v. Massachusetts Citizens for Life, 479 U.S. 238 (1986). 27, 30, 39, 40, 42-44

FEC v. NRA, 254 F.3d 173 (D.C. Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

FEC v. Public Citizen, 64 F. Supp.2d 1327 (N.D. Ga. 1999).. . . . . . . . . . . . . . . . 53

FEC v. Wisconsin Right to Life, 127 S. Ct. 2652 (2007). . . . . . . . . . . . . . . . passim

First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978).. . . . . . . . . . . . . . 35

FTC v. Standard Oil Co. Cal., 449 U.S. 232 (1980). . . . . . . . . . . . . . . . . . . . . . . 54

Giovani Carandola Ltd. v. Bason, 303 F.3d 507 (4th Cir. 2002).. 9-10, 35, 47, 55,

56

Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418

(2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Marks v. United States, 430 U.S. 188 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

McConnell v. FEC, 251 F. Supp. 2d 176 (D.D.C. 2003) .. . . . . . . . . . . . . . . . 33, 35

McConnell v. FEC, 540 U.S. 93 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 28-29

McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995). . . . . . . . . . . . 35, 48

Members of City Council v. Taxpayers for Vincent, 466 U.S. 789 (1984).. . . . . . 19

NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958). . . . . . . . . . . . . . . . . 51

National Right to Work Legal Def. & Educ. Found. v. Herbert, 581 F. Supp. 2d

1132 (D. Utah 2008) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

iv

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National Association of Manufacturers. v. Taylor, 549 F. Supp. 2d 33 (D.D.C. 

2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

North Carolina Right to Life v. Bartlett, 168 F.3d 705 (4th Cir. 1999). . . . . . 49-50

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

North Carolina Right to Life Committee Fund for Independent Political Expenditures v. Leake, 524 F.3d 427 (4th Cir. 2008) . . . . . . . . . . . . . . . . . . . . . 29

Ohio Right to Life Society v. Ohio Elections Comm’n, No. 08-492, 2008 WL 

4186312 (S.D. Oh. Sep. 5, 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 55, 57

Orloski v. FEC, 795 F.2d 156 (D.C. Cir. 1986). . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Right to Life of Dutchess County v. FEC, 6 F. Supp. 2d 248 (S.D. N.Y. 1998).. . 15

Rodriguez v. DeBuono, 175 F.3d 227 (2d Cir.1999) . . . . . . . . . . . . . . . . . . . . . . . 12

SCFC, Inc. v. Visa USA, Inc., 936 F.2d 1096 (10th Cir.1991). . . . . . . . . . . . . . . . 12

Slott v. Plastic Fabricators, Inc., 167 A.2d 306 (Pa. 1961) . . . . . . . . . . . . . . . . . 12

Sweezy v. New Hampshire, 354 U.S. 234 (1957). . . . . . . . . . . . . . . . . . . . . . . . . . 50

Tashjian v. Republican Party of Conn., 479 U.S. 208 (1986). . . . . . . . . . . . . . . . 19

Timmons v. Twin Cities Area New Party, 520 U.S. 351 (1997). . . . . . . . . . . . . . . 19

Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622 (1994) . . . . . . . . . . . . . . . . . . . . . 19

United States v. Morton Salt Co., 388 U.S. 632 (1950). . . . . . . . . . . . . . . . . . . . . 54

Virginia Carolina Tools v. International Tool Supply, 984 F.2d 113 (4th Cir. 

1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Constitution, Statutes & Rules

11 C.F.R. § 100. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 41-42

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11 C.F.R. § 110. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

11 C.F.R. § 114. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

2 U.S.C. § 431. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27, 39

2 U.S.C. § 434. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 5

2 U.S.C. § 441. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 27, 41

5 U.S.C. § 702. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 41, 45

26 U.S.C. § 501(c)(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5

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

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

28 U.S.C. § 2201. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Administrative Procedure Act.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 3, 45

BCRA § 201 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 6

BCRA § 203. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

BCRA § 311 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 5, 35

Bipartisan Campaign Reform Act of 2002. . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Declaratory Judgment Act.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

FEC, “Political Committee Status . . . ,” 69 Fed. Reg. 68056 (Nov. 23, 2004). . . 6,

41

FEC, “Political Committee Status,” 72 Fed. Reg. 5595 (Feb. 7, 2007). . . 6, 41-43,

45, 46

Federal Election Campaign Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

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Other Authorities

Black’s Law Dict. (5th ed. 1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

Dick M. Carpenter II, Disclosure Costs: Unintended Consequences of Campaign 

Finance Reform (2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

FEC General Counsel’s Report #2, MUR 5751 (The Leadership Forum) . . . 45-46

William McGeveran, Mrs. McIntyre’s Checkbook: Privacy Costs of Political

Contribution Disclosure, 6 U. Pa. J. Const. L. 1 (2003). . . . . . . . . . . . . . . . . 34

Merriam-Webster’s Collegiate Dictionary (10th ed. 2001). . . . . . . . . . . . . . . . . . 35

Random House Roget’s College Thesaurus (2000). . . . . . . . . . . . . . . . . . . . . . . . 35

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Jurisdiction

The district court had jurisdiction in this case arising under the First and Fifth

Amendments to the federal Constitution, the Federal Election Campaign Act

(“FECA”), the judicial review provisions of the Administrative Procedure Act

(“APA”) (5 U.S.C. §§ 702-06), and the Declaratory Judgment Act (28 U.S.C.

§§ 2201-02). 28 U.S.C. § 1331. This Court has jurisdiction over the October 29,

2008 denial of preliminary injunction (JA–27). 28 U.S.C. § 1292(a)(1). Appeal

was noticed October 31 (JA–45).

Issues

By way of context, Buckley v. Valeo held that communications subject to compelled disclosure are those “unambiguously related to the campaign of a particular

candidate for federal office.” 424 U.S. 1, 80 (1976). North Carolina Right to Life

v. Leake held that “campaign finance laws may constitutionally regulate only

. . . actions . . . ‘unambiguously related to the campaign of a particular . . . candidate.’” 525 F.3d 274, 281 (4th Cir. 2008) (citation omitted). Leake held that the

appeal-to-vote test in FEC v. Wisconsin Right to Life, 127 S. Ct. 2652, 2667

(2007), implements the unambiguously-campaign-related principle in the

1

 The principal opinion (“WRTL-II”) by Chief Justice Roberts, joined by Jus1

tice Alito, states the holding. See Marks v. United States, 430 U.S. 188, 193 (1977)

(holding is position on narrowest grounds).

1

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electioneering-communication (“EC”) context. 525 F.3d at 283 (identifying

2

unambiguously-campaign-related communications). WRTL-II held that ECs are

“functional[ly] equivalent [to] express advocacy” if “susceptible of no reasonable

interpretation other than as an appeal to vote for or against a specific candidate.”

127 S. Ct. at 2667. Leake held that the unambiguously-campaign-related principle 3

is implemented for political-committee (“PAC”) status by the major-purpose test,

“an empirical judgment as to whether an organization primarily engages in

regulable, election-related speech,” 525 F.3d at 287.

The general issue is whether the district court abused its discretion by applying

the wrong legal standards in denying a preliminary injunction to protect Committee for Truth in Politics, Inc. (“CTP”) from an FEC investigation and enforcement

action for not complying with BCRA’s Disclosure Requirements after it broad 4 5

 Using “EC” follows FEC convention below. ECs are essentially targeted,

2

broadcast ads referencing candidates within 30- and 60-day periods before primary

and general elections. See 2 U.S.C. § 434(f)(3).

 Those not functionally equivalent (“WRTL-II-ads”) are protected “issue ad3

vocacy,” i.e., ordinary “political speech.” Id. at 2659, 2673.

 “BCRA” refers to the Bipartisan Campaign Reform Act of 2002, Pub. L. No. 4

107-155, 116 Stat. 81.

 “Disclosure Requirements” refers collectively to BCRA § 201 (“Reporting 5

Requirement”), 116 Stat. 88-89 (titled “Disclosure of Electioneering Communications” and which added a new subsection “(f)” to § 304 of FECA that requires reporting of ECs, ) and BCRA § 311 (“Disclaimer Requirement”), 116 Stat. 105

(requiring that ECs carry “disclaimers”). See 11 C.F.R. § 110.11 (disclaimer regulations). The Reporting Requirement is codified at 2 U.S.C. § 434(f). The Dis2

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cast WRTL-II-ads. The underlying issues are:

1. Whether speech-protective preliminary-injunction standards are required

in First Amendment cases.

2. Whether the Disclosure Requirements are unconstitutional as applied to

WRTL-II-ads.

3. Whether the FEC’s PAC-enforcement policy is unconstitutional (fa- 6

cially and as applied), beyond statutory authority, and void under APA.

Case

On October 3, 2008, Appellants filed their complaint (JA–6) and moved for a

preliminary injunction (Dkt. 3). A hearing was held October 16 (Dkt. 32). On October 29, the district court denied a preliminary injunction. JA–27. Appeal was

noticed October 31. JA–45. Proceedings below are stayed pending the U.S. Supreme Court’s decision in Citizens United v. FEC (No. 08-205) (dealing with

whether the Disclosure Requirements are constitutional as applied to WRTL-IIads) (Dkt. 43). The present appeal continues because CTP is in violation of the

Disclosure Requirements and at any moment could be subjected to the burden of

defending itself against an unconstitutional investigation and enforcement action.

Appellants also believe that wrong preliminary injunction standards were emclaimer Requirement is codified at 2 U.S.C. § 441d(a).

See infra at 6, 42-45 (policy). 6

3

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ployed in this First Amendment context and seek to establish proper ones for when

CTP needs to speak again near an election. This need is capable of repetition, yet

evades timely review.

Facts

The FEC is the federal agency with FECA enforcement authority. JA–11.

Holly Lynn Koerber is a resident of Elizabeth City, North Carolina, where she

was able to receive CTP’s Ads. She wants to continue exercising the First Amendment right to receive CTP’s speech, but reasonably fears that CTP will be silenced.

JA–11-12.

CTP is a nonstock, nonprofit, North Carolina corporation (incorporated in

September 2008) and is tax-exempt under 26 U.S.C. § 501(c)(4). CTP meets the

criteria for an MCFL-corporation so that it may not be prohibited from making

ECs. JA–11-12.

CTP is not a PAC because it does not have “the major purpose” of “primarily

engag[ing] in regulable, election-related speech,” Leake, 525 at 274, so its major

purpose is not the “nomination or election of a candidate,” Buckley, 424 U.S. at

79. The majority of CTP’s activities will be nonpolitical-intervention, social welfare activities, including lobbying. Although its Ads are not “regulable electionrelated speech,” Leake, 525 F.3d at 287, on which a determination of PAC status

4

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may be based, they will not be the primary activity of CTP. Expenditures for solicitations to CTP will be insubstantial. JA–12-13. 

CTP’s Articles of Incorporation set out its purpose as “promoting the social

welfare . . . by: (a) Advocating honesty in government; (b) Advocating limited

government; and (c) Engaging in . . . lawful activities that are appropriate to carry

out . . . the foregoing purposes.” JA–13.

CTP’s Articles prohibit, “except to an insubstantial degree, carry[ing] on any

activities not permitted to be carried on by an organization exempt from Federal

income tax under Section 501(c)(4) of the Internal Revenue Code . . . .” JA–13.

Before the 2008 general election, CTP broadcast an ad titled Basic Rights on

television stations in Wilmington, North Carolina, that reached into Elizabeth

City, North Carolina. Basic Rights was broadcast on stations in Pennsylvania,

North Carolina, and Wisconsin on October 2, 2008, as well as other broadcasts

after that. CTP also broadcast Tragic, but True. The scripts are in the Verified

Complaint at ¶¶ 32-33. JA–13-14.

CTP did not coordinate the production and broadcast of the Ads with any candidate, campaign committee, political committee, or political party. JA–15. The

Ads met the EC definition at 2 U.S.C. § 434(f)(3) and 11 C.F.R. § 100.29. JA–15.

The Ads were subject to the Disclaimer Requirement. The Ads included prescribed disclaimers, but CTP challenges the constitutionality of the Disclaimer

5

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Requirement, preferring to use a shorter self-identification to preserve valuable

advertising time. JA–15-16.

Because CTP spent more than $10,000 in 2008 for the direct costs of producing and airing Basic Rights, CTP was subject to the Reporting Requirement. Once

CTP reached the $10,000 trigger amount (the “disclosure date”), it was to have

filed the required report within 24 hours, i.e., on October 3, 2008. CTP did not file

the report and is currently in violation of the Reporting Requirement. CTP reasonably fears that the FEC will initiate an unconstitutional investigation and enforcement action, and that CTP may suffer penalties for noncompliance. JA–16.

CTP also reasonably fears that the FEC may deem it a political committee under the FEC’s vague, overbroad, unauthorized PAC-enforcement policy. See FEC,

“Political Committee Status . . . ,” 69 Fed. Reg. 68056 (Nov. 23, 2004) (“PAC-Status 1”); FEC, “Political Committee Status,” 72 Fed. Reg. 5595 (Feb. 7, 2007)

(“PAC-Status 2”). The policy employs a totality-of-the-circumstances test for determining major purpose instead of the required “empirical judgment as to whether

an organization primarily engages in regulable, election-related speech,” Leake,

525 F.3d at 287. CTP reasonably fears that the FEC will initiate an unconstitutional investigation and enforcement action for non-compliance with PAC requirements, and that CTP may suffer penalties for noncompliance. JA–16-17.

CTP intends to continue broadcasting materially-similar WRTL-II-ads that will

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be within the “safe harbor” in 11 C.F.R. § 114.15. JA–17 (setting out elements).

CTP is at risk for the irreparable harm of a constitutionally-unjustified investigation and enforcement action and has no adequate remedy at law. JA–17.

Summary of Argument

In denying a preliminary injunction, the district court abused its discretion by

applying improper legal standards. As to preliminary injunction standards, it failed

to apply the speech-protective standards mandated by the First Amendment.

As to the Disclosure Requirements, it failed to follow precedent. In the

communication-disclosure context, Buckley restricted compelled disclosure to

communications that “[we]re unambiguously related to the campaign of a particular candidate for federal office” by restricting disclosure to express-advocacy communications. 424 U.S. at 80. Leake held that “campaign finance laws may constitutionally regulate only those actions that are ‘unambiguously related to the campaign of a particular . . . candidate.’” 525 F.3d at 281 (citation omitted). Leake

held that WRTL-II’s appeal-to-vote test, 127 S. Ct. at 2667, applies this principle

in the EC context: “[t]he Supreme Court has identified two categories of communication as being unambiguously campaign related,” i.e., “‘express advocacy’ . . . .

[and] ‘the functional equivalent of express advocacy,’ defined as an ‘electioneering communication’ that ‘is susceptible of no reasonable interpretation other than

7

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as an appeal to vote for or against a specific candidate.’” 525 F.3d at 283. So

WRTL-II’s appeal-to-vote test is to ECs what the express-advocacy test was to the

communications in Buckley, i.e., both implement the unambiguously-campaignrelated principle—only ads captured by these tests are subject to compelled disclosure. CTP’s ads are WRTL-II-ads because they contain no such “appeal to vote.”

They are not unambiguously campaign related and so not subject to compelled

disclosure.

As to the FEC’s PAC-enforcement policy, the district court failed to follow

Leake, which recognized that the unambiguously-campaign-related principle controls PAC status through the major-purpose test, id. at 287, and that major-purpose

determination is “an empirical judgment as to whether an organization primarily

engages in regulable, election-related speech,” id. (emphasis added). The FEC’s

contrary policy is a vague “‘we’ll know it when we see it approach,’” id. at 290

(citation omitted), so it is unconstitutional and beyond FEC authority.

Argument

I. Standards: First Amendment Versions Are Required.

This Court needs to clarify to the lower courts that ordinary standards are inadequate in the highly-protected context of what WRTL-II called “issue advocacy” or

“political speech.” 127 S. Ct. at 2659, 2667, 2673. Speech-protective standards

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apply. See id. at 2666 & n.5 (all doubts resolved for free speech; streamlined, lowcost litigation requirements mandated to avoid “severe burden on political speech”

and chilling same).

A. Appellate Standard of Review.

This Court reviews preliminary injunction denials for abuse of discretion,

Giovani Carandola Ltd. v. Bason, 303 F.3d 507, 511 (4th Cir. 2002), accepting

“findings of fact absent clear error, but review[ing] . . . legal conclusions de novo,”

id. (citation omitted). “[A] mistake of law . . . is per se an abuse of discretion.”

Dixon v. Edwards, 290 F.3d 699, 718 (4th Cir. 2002). In this First Amendment

context, these standards must be applied in a speech-protective manner. The district court abused its discretion by mistakes of law as to preliminary injunction

standards (inadequately protecting First Amendment rights) and precedent (not

even mentioning Leake, 525 F.3d 274).

B. Preliminary Injunction Standard.

1. General Standard.

CTP meets the preliminary injunction criteria—likely success on the merits,

irreparable harm, favorable balance of harms, and public interest, Blackwelder

Furniture Company of Statesville v. Seilig Manufacturing Company, 550 F.2d

189, 196 (4th Cir. 1999). “[F]actors do not weigh equally . . . ; the first two domi

7

Blackwelder recited the factors: “1) Has the petitioner made a strong showing 7

9

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nate.” Virginia Carolina Tools v. International Tool Supply, 984 F.2d 113,120

(4th Cir. 1993). In First Amendment cases, irreparable harm is “‘inseparably

linked’” to the likelihood of merits success, Bason, 303 F.3d at 511 (citation omitted), which must be considered first, id.

2. WRTL-II Standard.

This case should be considered in light of WRTL-II, in which WRTL was denied a preliminary injunction allowing it to run its 2004 anti-filibuster grassroots

lobbying ads. See WRTL-II, 127 S. Ct. at 2661. The four-Justice WRTL-II dissent

argued that the availability of preliminary injunctions preserved McConnell from

being overturned as to ECs:

Although WRTL contends that the as-applied remedy has proven to be

“[i]nadequate” because such challenges cannot be litigated quickly enough

to avoid being mooted, . . . nothing prevents an advertiser from obtaining a

preliminary injunction if it can qualify for one, and WRTL does not point to

any evidence that district courts have been unable to rule on any such matters

in a timely way.

Id. at 2704 (Souter, J., joined by Stevens, Ginsburg & Breyer, JJ.). So unless

McConnell is to be overturned, there must be a real possibility of preliminary injunctions in as-applied challenges. All elements must be capable of being met or

else the “as-applied remedy [is] ‘[i]nadequate,’” id. So the FEC may not trump a

that it is likely to prevail upon the merits? 2) Has the petitioner shown that without

such relief it will suffer irreparable injury? 3) Would the issuance of the injunction

substantially harm other interested parties? 4) Wherein lies the public interest?”

Blackwelder, 550 F.2d at 193 (citation omitted).

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preliminary injunction by asserting, e.g., that it is injured if it can’t investigate or

that a challenge must be rejected because some imagined “wild west” election scenario might occur. WRTL-II mandated speedy resolution, without litigation burden, of as-applied challenges arising near elections, id. at 2667, that doubts about

protecting issue advocacy should be resolved in favor of speech, not censorship,

id. at 2659, 2667, 2669 n.7, 2674, that “political speech” have “breathing room,”

id. at 2666, all of which mandates speech-protective, preliminary-injunction standards.

3. First Amendment Context: Standards & Interests.

Some district courts do issue preliminary injunctions in this context. But until 8

courts uniformly issue preliminary injunctions based on speech-protective standards, expressive association will be unconstitutionally burdened. This Court

should clarify that political-speech cases require speech-protective standards.

WRTL-II’s mandate for streamlined procedures and speech-protective rules must

be reflected in standards and interests for issuing preliminary injunctions in cases

involving issue-advocacy communications.

 One restricted regulation of political speech to (1) magic-words express ad8

vocacy and (2) ECs defined as the federal model. See Center for Individual Freedom v. Ireland, Nos. 08-190 & 08-1133, 2008 WL 4642268 (S.D. W. Va. Oct. 17,

2008) (“CFIF”) (relying on Leake and unambiguously-campaign-related principle). Another restricted an EC definition to WRTL-II’s appeal-to-vote test. Ohio

Right to Life Society v. Ohio Elections Comm’n, No. 08-492, 2008 WL 4186312

(S.D. Oh. Sep. 5, 2008). 

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First, the standards must reflect that “the people are sovereign” and “‘debate

on public issues should be uninhibited, robust, and wide-open,’” Buckley, 424 U.S.

at 14 (citation omitted). WRTL-II requires heeding the mandate that “‘Congress

shall make no law . . . abridging the freedom of speech,’” 127 S. Ct. at

2674—saying that “[t]he Framers’ actual words put these cases in proper perspective,” id.—so “freedom of speech” is the constitutional presumption. The district

court recognized no such presumption, either in its statement of standard nor its

analysis.

Second, this presumption means that the status quo in a “prohibitory” injunction is “freedom of speech,” the condition before a speech regulation was created. 9

“[T]he status quo is ‘the last peaceable uncontested status between the parties

which preceded the controversy . . . .’” Dominion Video Satellite, Inc. v. EchoStar

Satellite Corp., 269 F.3d 1149, 1155 (10th Cir. 2001) (citation omitted). “The purpose of a preliminary injunction is to preserve the status quo as it exists or previously existed before the acts complained of. . . .” Slott v. Plastic Fabricators, Inc.,

167 A.2d 306 (Pa. 1961) (emphasis added). Government must not be permitted to

 In contrast to a “prohibitory” injunction, a “mandatory” injunction “affirma- 9

tively require[s] the nonmovant to act in a particular way, and as a result . . .

court[s] . . . may have to provide ongoing supervision . . . .” SCFC, Inc. v. Visa

USA, Inc., 936 F.2d 1096,1099 (10th Cir.1991). Mandatory injunctions usually

alter the status quo and movants must show a heightened likelihood of success.

Rodriguez v. DeBuono, 175 F.3d 227, 233 (2d Cir.1999) (per curiam).

12

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bootstrap a “status quo” and enforcement interest by creating questionable speech

regulations and then arguing that a preliminary injunction must be denied because

of the newly-minted “status quo” and “enforcement interest.” The district court

spoke of maintaining the status quo, JA–31, but failed to recognize that the proper

status quo in this context is the “no law,” “free speech” presumption of the First

Amendment.

Third, the free-speech presumption means that speech protections are incorporated into preliminary injunction standards, not limited to merits consideration:

“[T]he burdens at the preliminary injunction stage track the burdens at trial.” Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 428

(2006). The district court erroneously placed the burden on Plaintiffs. JA–31.

Fourth, the free-speech presumption means that the government always has the

threshold burden of proving that the unambiguously-campaign-related principle is

met (as implemented by the appropriate test) before meeting the burden imposed

by the required level of scrutiny. Leake, 525 F.3d at 281 (“campaign finance laws

may constitutionally regulate only those actions that are ‘unambiguously related to

the campaign of a particular . . . candidate’” (citation omitted)); National Right to

Work Legal Def. & Educ. Found. v. Herbert, 581 F. Supp. 2d 1132, 1146 (D. Utah

2008) (“before applying exacting scrutiny . . . the court must first determine

whether the activities being regulated are unambiguously campaign related”). The

13

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district court neither recognized this threshold burden nor required the FEC to

meet it.

Fifth, the free-speech presumption means that because “exacting scrutiny” is 10

the antithesis of deference or a presumption of constitutionality for speech regulations, no such deference or presumption is permitted. The regulation of ECs, “in

particular, has the potential to trammel vital political speech, and thus regulation

of speech as ‘the functional equivalent of express advocacy’ warrants careful judicial scrutiny.” Leake, 525 F.3d at 283 (emphasis added). “[T]he Government must

prove that applying [the challenged provision to the communication at issue] furthers a compelling interest and is narrowly tailored to achieve that interest. WRTLII, 127 S. Ct at 2664 (emphasis in original). Agencies charged with regulating free

speech require “extra-careful scrutiny from the court,” FEC v. Machinists NonPartisan Political League, 655 F.2d 380, 387 (D.C. Cir. 1981) (“Machinists”),

because “[t]he subject matter which the FEC oversees . . . relates to behavior of

individuals and groups only insofar as they act, speak and associate for political

purposes,” id. Deference to an agency applies only where there is a “‘reasonable

11

 See infra at 33 (“exacting scrutiny”). 10

See also FEC v. Florida for Kennedy Comm., 681 F.2d 1281, 1284 (11th 11

Cir. 1982) (“[T]he activities that the FEC seeks to investigate differ profoundly in

terms of constitutional significance from the activities that are generally the subject of investigation by other federal administrative agencies. The sole purpose of

the FEC is to regulate activities involving political expression, the same activities

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choice within a gap left open by Congress.’” Orloski v. FEC, 795 F.2d 156 (D.C.

Cir. 1986) (quoting Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467

U.S. 837, 866 (1984)). There is no deference where “the Supreme Court has spoken on the issue. . . . It is not the role of the FEC to second-guess the wisdom of

the Supreme Court.” Faucher v. FEC, 928 F.2d 468, 471 (1st Cir.1991). See also

Right to Life of Dutchess County v. FEC, 6 F. Supp. 2d 248, 254 (S.D. N.Y. 1998)

(same). The district court erroneously declared that the FEC is entitled to deference to its discretion and to a presumption that it will act lawfully. JA–15-16.

Sixth, the free-speech presumption means that in determining the balance of

harms and the public interest, courts must apply WRTL-II’s requirement that

“‘[w]here the First Amendment is implicated, the tie goes to the speaker, not the

censor.’” CFIF, Nos. 08-190 & 08-1133, 2008 WL 4642268, at *27 (quoting

WRTL-II, 127 S. Ct. at 2669) (applying principle to consideration of public harm).

In this case, the district did not afford the respect to the First Amendment on

which this rule is based.

Seventh, the free-speech presumption means that agencies have no per se interest in restricting or regulating speech. Their first loyalty is to the First Amendment. Their interest is in enforcing the laws as they exist, with the content of those

laws being beyond agency interest for preliminary-injunction consideration: “It is

that are the primary object of the first amendment’s protection.”).

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difficult to fathom any harm to [enforcement officials] as it is simply their responsibility to enforce the law, whatever it says.” Id. Even where an agency’s regulation is at issue, the agency’s only interests are in faithfully implementing the substantive law and following the Constitution. While the FEC has the duty to defend

campaign laws and regulations, it does so as a statutory mandate, not as a party

having any ownership interest in the substantive content or the per se ability to

enforce them. The risks inherent in an agency charged with overseeing our most

12

precious liberties apply here, too. As a consequence, courts should expect from the

FEC good-faith arguments on the merits, not scorched-earth litigation tactics in

disregard of the fundamental liberties at issue. See FEC v. Christian Action Network, 110 F.3d 1049, 1064 (4th Cir. 1997) (assessing fees because FEC position

not “in good faith . . . , much less with ‘substantial justification’”); WRTL-II, 127

S. Ct. at 2666 n.5 (“extensive discovery” was “severe burden on political speech”).

In this case, the district court recognized an enforcement interest despite the questionability of the provisions under this Court’s precedents.

Eighth, the free-speech presumption means that the fact that an issue-advocacy

 Any “right to enforce” must be viewed as an instrumental, statutory interest, 12

not as some property right. It should never be weighed equally with free speech. In

a balancing, free speech must always win unless there is some other interest that is

weighty enough to warrant denial of a preliminary injunction. Even if free speech

and an enforcement interest were considered equal, “‘the tie goes to the speaker,

not the censor.’” CFIF, Nos. 08-190 & 08-1133, 2008 WL 4642268, at *27 (quoting WRTL-II, 127 S. Ct. at 2669).

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case may be filed near an election favors the plaintiff, not the defendant, in the

preliminary-injunction balancing because issue advocacy is most important when

public interest in an issue is highest, which may fall near an election. “[A] group

can certainly choose to run an issue ad to coincide with public interest” without

proximity to an election meaning that it is “electioneering.” WRTL-II, 127 S. Ct. at

2668. WRTL-II expressly rejected the use of timing to determine whether an ad is

regulable: “That the ads were run close to an election is unremarkable in a challenge like this. Every ad covered by BCRA § 203 will by definition air just before

a primary or general election.” Id. at 2667. WRTL-II also specifically envisioned

eve-of-election litigation in its rules for as-applied challenges involving ECs. Id. at

2666. To penalize people who suddenly see a need to exercise their First Amendment right to associate to amplify their speech, Buckley, 424 U.S. at 22, is to ignore the free-speech presumption. Under the First Amendment, there is no reason

why citizens can’t just suddenly associate and speak—whenever they want. There

is no prescience requirement, mandating people to know months in advance that

they will want to speak. Nor are First Amendment protections limited to long-established groups. Nor do First Amendment rights diminish near the peak of the

election cycle. Speech in temporal and topical proximity to an election enjoys the

highest protection. Buckley, 424 U.S. at 14 (“‘constitutional guarantee has its fullest and most urgent application precisely to the conduct of campaigns for political

17

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office’” (citation omitted)). Any delay in filing a challenge may not be held against

the would-be speaker because it “could . . . have delayed because it did not arrive

at a plan to exercise its rights to speak until relatively recently.” CFIF, Nos. 08-

190 & 08-1133, 2008 WL 4642268, at *26.

Ninth, the free-speech presumption means that where a law is likely unconstitutional there is no authority for it to operate just because an election is near. In

fact, proximity to a time of high public interest argues against allowing a law restricting issue advocacy to remain in effect. See supra. So any trial court denying a

preliminary injunction on the basis of a “wild west” scenario and confusion would

be wrong. “[F]inding these laws unconstitutional will not likely result in the type

of chaotic ‘wild west’ scenario Defendants . . . foretell. Rather, it will simply result

in the dissemination of more information of precisely the kind the First Amendment was designed to protect.” CFIF, Nos. 08-190 & 08-1133, 2008 WL 4642268,

at *26.

Tenth, the free-speech presumption means that when an agency argues that

there will be a “wild west” scenario if a law of questionable constitutionality is

preliminarily enjoined, the agency must provide proof. Id. at *27. Where First

Amendment rights are involved, the government “must do more than simply posit

the existence of the disease sought to be cured. It must demonstrate that the recited

harms are real, not merely conjectural, and that the regulation will in fact alleviate

18

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these harms in a direct and material way.” Turner Broad. Sys., Inc. v. FCC, 512

U.S. 622, 664 (1994) (citation omitted).

13

In sum, where issue advocacy is involved, our most cherished constitutional

rights to free association and speech are involved, as is the fundamental right of

the sovereign people to participate in self-governance. The high constitutional

protections for issue advocacy reflect that fact. The preliminary injunction standards and cognizable interests must reflect that protection. Courts may not employ

the same standards applicable to property disputes. Those standards should be articulated by this Court so that when citizen groups do issue advocacy near elections when public interest is high, they will get the protection the First Amendment mandates. The district court did not apply these speech-protective,

preliminary-injunction standards. Under proper standards, CTP was entitled to a

preliminary injunction.

See also Members of City Council v. Taxpayers for Vincent, 466 U.S. 789,

13

803 n. 22 (1984) (“may not . . . assume . . . ordinance will . . . advance . . . state

interests sufficiently to justify . . . abridgement of expressive activity”). FEC v.

NRA, 254 F.3d 173, 191 (D.C. Cir. 2001) (same); see also id. at 192 (FEC may not

speculate that NRA received more because it did not record corporate contributions of under $500). Agencies asserting voter confusion bear a heavy proof burden. See, e.g., Timmons v. Twin Cities Area New Party, 520 U.S. 351, 370 n.13

(1997); Eu v. San Francisco County Democratic Cent. Comm., 489 U.S. 214, 223

(1989); Tashjian v. Republican Party of Conn., 479 U.S. 208, 221 (1986).

19

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II. CTP Has Likely Success on the Merits.

CTP has likely success on the merits because Leake held that (A) campaignfinance laws may only regulate unambiguously-campaign-related activity, 525

F.3d at 281, 282-83, 287; (B) WRTL-II-ads are not unambiguously campaign related, id. at 282, 283; and (C) PAC status is governed by the major-purpose test,

which is “an empirical judgment as to whether an organization primarily engages

in regulable, election-related speech,” id. at 287. The Disclosure Requirements 14

(as applied to WRTL-II-ads) and the FEC’s PAC-enforcement policy are unconstitutional under Leake.

A. Campaign-Finance Laws May Only Regulate Unambiguously-CampaignRelated Activity.

Leake held that the unambiguously-campaign-related principle is a threshold

requirement for all campaign-finance laws. Id. at 282-83, 287-88. Since this case

may be decided on this threshold requirement, it is unnecessary to establish what

is required by “exacting scrutiny,” which governs compelled disclosure for com-

 The FEC’s memorandum below only mentioned Leake once, attempting to

14

distinguish it as not addressing EC disclosure and as emphasizing the reasonability

of federal EC provisions. Opp’n Prelim. Inj. 18 n.8 (Dkt.24). But Leake’s constitutional analysis is binding. It was the foundation of Leake, not obiter dictum. Leake

compared the federal EC definition to a state provision to prove the latter

overbroad, not to endorse all applications of federal EC regulation. The FEC instead relied (Opp’n Prelim. Inj. 15, 20-21) on non-controlling cases, such as

Alaska Right to Life Committee v. Miles, 441 F.3d 773 (9th Cir. 2006), which

lacks viability after WRTL-II and Leake.

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munications, Buckley, 424 U.S. at 64.

Buckley required “exacting scrutiny” and “also” required a “‘relevant correlation’ or ‘substantial relation’ between the governmental interest and the information required to be disclosed,” id. at 64 (emphasis added). This additional

relevant-correlation requirement is not the same as intermediate scrutiny, which

was applied to contribution limits because they were indirect speech, unlike the

speech at issue here, and required “a sufficiently important interest and . . . means

closely drawn to avoid unnecessary abridgment of associational freedoms,” id. at

25.

As to compelled disclosure for communications, the relevant-correlation requirement examines the nexus between the communication and “[t]he constitutional power of Congress to regulate federal elections,” id. at 13. This is evident

from Buckley’s application of the relevant-correlation requirement to compelled

disclosure to prevent it from being “impermissibly broad” because “the relation of

the information sought to the purposes of the Act may be too remote,” id. at 80.

“[P]urposes of the Act” refers to “regulat[ing] election campaigns,” id. at 13,

which is also clear from Buckley’s description of why it was employing the

express-advocacy construction, i.e., to insure that the compelled disclosure is “directed precisely to that spending that is unambiguously related to the campaign of

a particular federal candidate,” id. at 80 (emphasis added), or “unambiguously

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campaign related,” id. at 81 (emphasis added). See also id. at 66 (interest in providing disclosure information to public is only as to “political campaign money”

(emphasis added)).

So whatever scrutiny is required, Buckley held that the interests that justified

compelled disclosure did not extend to communications that were not “unambiguously campaign related,” id. at 81. This is clear from Buckley’s holding that “as

construed” (to restrict disclosure to unambiguously-campaign-related communications), the compelled disclosure provision “bears a sufficient relationship to a substantial governmental interest” and passed whatever exacting scrutiny required, id.

at 80 (emphasis added). So compelled disclosure as to communications beyond

that construction failed exacting scrutiny. For present purposes, the interests justifying compelled disclosure do not justify compelled disclosure for WRTL-II-ads,

which are not unambiguously campaign related.

The unambiguously-campaign-related principle must be satisfied before turning to “exacting scrutiny.” That is precisely what Buckley did in this expendituredisclosure context, id. at 79-81 (construing “expenditure” to reach only unambiguously-campaign-related communications before applying exacting scrutiny), just

as it has done earlier in the expenditure-limitation context, id. at 44-51. And Leake

recognized this threshold requirement by holding that Buckley “cabin[ed] legislative authority over elections” by requiring that “campaign finance laws may con22

Case: 08-2257 Document: 16-1 Date Filed: 03/16/2009 Page: 31
stitutionally regulate only those actions that are “‘unambiguously related to the

campaign of a particular . . . candidate.’” 525 F.3d at 281 (quoting Buckley, 424

U.S. at 80).

This unambiguously-campaign-related principle is necessary to protect “issue

advocacy” because “the distinction between campaign advocacy and issue advocacy ‘may often dissolve in practical application. Candidates, especially incumbents, are intimately tied to public issues involving legislative proposals and governmental actions.’” WRTL-II, 127 S. Ct. at 2659 (quoting Buckley, 424 U.S. at

42). CTP did not engage in what WRTL-II called “campaign speech, or ‘express

advocacy,’ but [rather] speech about public issues more generally, or ‘issue advocacy,’ that mentions a candidate for federal office,” id. at 2659. WRTL-II also

called issue advocacy “political speech.” id. at 2659, 2665-66, 2673-74; see also

Leake, 525 F.3d at 277, 282-84, 288-89 (“ordinary political speech”). WRTL-II

held that in drawing lines in the First Amendment area courts must “err on the side

of protecting political speech rather than suppressing it.” WRTL-II, 127 S. Ct. at

2659 (emphasis added). WRTL-II defined ordinary political speech or issue advocacy: “Issue advocacy conveys information and educates. An issue ad’s impact on

an election, if it exists at all, will come only after the voters hear the information

and choose—uninvited by the ad—to factor it into their voting decisions,” id. at

2667.

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WRTL-II’s broad definition of issue advocacy and equating of it to ordinary

political speech, which is protected despite its “political” nature, requires a rejection of the FEC’s notion that Congress may still require compelled disclosure of

ads protected under WRTL-II’s appeal-to-vote test (“WRTL-II-ads”) because they

are “mixed messages,” as the FEC asserted at the hearing below. Tr. 39. A “mixed”

message is not unambiguously campaign related, as both Buckley and Leake require before disclosure may be compelled. “The danger in this area—when dealing

with a broadly empowered bureaucracy—is not that speakers may disguise electoral messages as issue advocacy, but rather that simple issue advocacy will be

suppressed by some regulator who fears it may bear conceivably on some campaign.” Leake, 525 F.3d at 302. The perceived mixed-message problem is precisely the dissolving-distinction problem for which Buckley created the expressadvocacy test to implement the unambiguously-campaign-related principle and

15

See 424 U.S. at 42 (“distinction between discussion of issues and candidates

15

and advocacy of election or defeat of candidates may often dissolve in practical

application”), 43 (“the supposedly clear-cut distinction between discussion,

laudation, general advocacy, and solicitation puts the speaker in these circumstances wholly at the mercy of the varied understanding of his hearers. . . . ‘Such a

distinction offers no security for free discussion.’” (citation omitted)), 43 (“The

constitutional deficiencies described . . . can be avoided only by reading [the expenditure limitation statute] as limited to communications that include explicit

words of advocacy of election or defeat of a candidate.”), 80 (“we construe ‘expenditure’ [in the compelled-disclosure context] in the same way we construed [it in the

expenditure-limitation context]” to require express advocacy to reach only

unambiguously-campaign-related communications). See infra.

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which WRTL-II cited as compelling the appeal-to-vote test to protect WRTL-II-ads,

127 S. Ct. at 2659 (dissolving-distinction problem), 2669 (same), which are not

unambiguously campaign related, Leake, 525 F.3d at 281-83.

The unambiguously-campaign-related principle is implemented through tests,

so it is not stated in cases as a free-standing requirement. The principle protects

issue advocacy and issue-advocacy groups through three strict tests that restrict

government regulation of communications and expressive associations: (1) the

express-advocacy test (applying to general communications), (2) the major-purpose test (applying to determination of PAC status), and (3) the appeal-to-vote test

(applying to ECs). Leake, 525 F.3d at 281-83, 287.

The first two of these tests originated in Buckley, which employed its

unambiguously-campaign-related principle, 424 U.S. at 79-81, to create (1) the

express-advocacy test, which determines when independent expenditures for communications may be subjected to compelled disclosure, id. at 80, and (2) the

major-purpose test, which determines which groups may be treated as “political

committees,” id. at 79 (“under the control of a candidate or the major purpose of

which is the nomination or election of a candidate”).16

Buckley applied the unambiguously-campaign-related principle to (1) expen- 16

diture limitations, id. at 42-44 (express-advocacy test); (2) PAC status and disclosure, id. at 79 (major-purpose test); (3) non-PAC disclosure of contributions and

independent expenditures, id. at 79-81 (express-advocacy test); and (4) contributions, id. at 23 n.24, 78 (contribution-definition test) (“So defined, ‘contributions’

25

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WRTL-II’s appeal-to-vote test implements the unambiguously-campaign-related principle by distinguishing ECs that are the functional equivalent of express

advocacy (and so unambiguously campaign related) from those that are not

(WRTL-II-ads). 127 S. Ct. at 2667. This was confirmed by Leake’s holding that

“[t]he Supreme Court has identified two categories of communication as being

unambiguously campaign related,” i.e., “‘express advocacy,’” and “‘the functional

equivalent of express advocacy,’ defined as an ‘electioneering communication’

that ‘is susceptible of no reasonable interpretation other than as an appeal to vote

for or against a specific candidate,’” 525 F.3d at 283.

The reason for the unambiguously-campaign-related principle and its derivative tests is twofold. First, since the only authority to regulate core political speech

in this context is the authority to regulate elections, see id. at 13 (“constitutional

power of Congress to regulate . . . elections is well established”), any restriction

must be “unambiguously campaign related,” id. at 81. See also id. at 66 (interest in

providing disclosure information to the public is only as to “political campaign

money” (emphasis added).

Second, the people’s core political speech, in their sovereign, self-government

role, must not be burdened. Buckley noted a dissolving-distinction problem as rehave a sufficiently close relationship to the goals of the Act, for they are connected

with a candidate or his campaign.”).

26

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quiring a bright, speech-protective line between (1) “discussion of issues and candidates” and (2) “advocacy of election or defeat of candidates.” Id. at 42. The

Court elaborated further on the necessity of the bright line—between (1) “discussion, laudation, [and] general advocacy” and (2) “solicitation”—to protect issue

advocacy. Id. at 43 (emphasis added). When the Court reiterated the express-advocacy test in imposing it on the prohibition (at 2 U.S.C. § 441b) on corporate “independent expenditures” in MCFL, it reaffirmed the need for a bright line “to dis- 17

tinguish discussion of issues and candidates from more pointed exhortations to

vote for particular persons,” 479 U.S. at 249.

The district court misunderstood the unambiguously-campaign-related principle and derivative tests that control this case, stating that “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.” JA–34. Buckley stated that in addition to

exacting scrutiny it “also” mandated the relevant-correlation requirement and specifically applied the latter in the compelled-disclosure context to require that regulation only reach unambiguously-campaign-related communications. See supra.

But the district court did not need to go beyond Leake to see that the unambigu-

 “Independent expenditures” are for communications “expressly advocating

17

the election or defeat of a clearly identified candidate.” 2 U.S.C. § 431(17).

27

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ously-campaign-related principle controlled its analysis.

The district court erroneously insisted that the unambiguously-campaign-related argument was “made and rejected . . . in McConnell.” JA–34-35. Again,

Leake was ignored, although it was post-McConnell, discussed McConnell, and

declared the unambiguously-campaign-related principle a threshold requirement

for all campaign-finance laws. Leake controlled the district court’s analysis concerning what McConnell did, but the court ignored it. The court’s analysis of

McConnell was flawed because, while McConnell said that the express-advocacy

line was not constitutionally mandated for all campaign-finance regulation, it acknowledged the need for narrowing where a statute was “overbroad,” 540 U.S. at

192. It cited Buckley for implementing the express-advocacy test in the compelled

disclosure context “‘[t]o insure that the reach’ of the disclosure requirement was

‘not impermissibly broad,’” id. at 192 (citation omitted), quoting the very passage

where the unambiguously-campaign-related principle was stated. McConnell did

not overturn this first principle of constitutional analysis, but merely upheld an EC

regulation facially, while recognizing that “the interests that justify the regulation

of campaign speech might not apply to the regulation of genuine issue ads,” 540

U.S. at 207 n.88. As Leake recognized, WRTL-II cured the overbreadth in the EC

definition with the appeal-to-vote test, 127 S. Ct. at 2667, which is the application

of the first principle to ECs.

28

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The district court evidenced further misunderstanding by asserting that

“WRTL-II did not, as plaintiffs argue, overturn McConnell,” JA–36. Appellants

never argued that WRTL-II overturned McConnell, only that WRTL-II’s application of the unambiguously-campaign-related principle with the appeal-to-vote test

meant that WRTL-II-ads must be free from both prohibition and compelled disclosure.

The district court also demonstrated misunderstanding by applying to the

compelled-disclosure context, JA-33, a citation from McConnell, 540 U.S. at 136

(quoting Buckley, 424 U.S. at 25), about the standard of review for contribution

limits. Buckley plainly applied an intermediate standard of scrutiny to contribution

limits, on the basis that indirect speech was involved. 424 U.S. at 21, 25. But

18

contribution limits have nothing to do with the “exacting scrutiny” that Buckley

mandated for compelled disclosure, id. at 64. And the speech involved here is

CTP’s own, not indirect speech. Had the district court followed Leake, it could

have avoided all these mistakes of law.

Finally, a brief response will be made to the FEC’s attempted refutation of the

 The district court was likely led astray by the FEC’s argument that this

18

Court’s decision in North Carolina Right to Life Committee Fund for Independent

Political Expenditures v. Leake, 524 F.3d 427, 440 (4th Cir. 2008) required intermediate scrutiny for compelled disclosure, Opp’n Prel. Inj. 15, even though this

Court clearly said that it employed intermediate scrutiny because campaign contributions were at issue, 524 F.3d at 440.

29

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unambiguously-campaign-related principle below. The FEC argued that (1) “the

[Supreme] Court has often upheld disclosure requirements even when striking

down substantive restrictions of the funds to be disclosed,” Opp’n Prelim. Inj. 16

(emphasis in original); (2) “Buckley did not enshrine the phrase ‘unambiguously

campaign related’ as a stand-alone constitutional ‘requirement,’” id. at 17; and (3)

“courts are nearly unanimous in upholding mandatory disclosure of lobbying expenditures,” id. at 18.

The first argument is beside the point because the question is not whether activity that may not be prohibited may be subject to disclosure. The question is

whether activity that is not unambiguously campaign related may be subjected to

compelled disclosure, which question Leake already answered in the negative. The

FEC cites MCFL, 479 U.S. 238, for the proposition that, even though MCFL-corporations cannot be prohibited from making “independent expenditures,” MCFL

was required to report them. But the prohibition on independent expenditures was

construed in MCFL to reach only express advocacy, id. at 249 (“to distinguish discussion of issues and candidates from more pointed exhortations to vote for particular persons”), so they were unambiguously campaign related. The same is true as

to the FEC’s argument from the ballot-initiative context, where compelled disclosure may only be applied to independent expenditures that expressly advocate for

or against the ballot initiative. See, e.g., California Pro-Life Council v. Getman,

30

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328 F.3d 1088, 1098 (9th Cir. 2003) (“express advocacy” construction saved

independent-expenditure definition from “overreach[ing]”). These cited contexts

are actually consistent with Buckley’s and Leake’s requirement that only

unambiguously-campaign-related communications are subject to compelled disclosure.

The FEC’s second argument knocks down its own straw man because the

unambiguously-campaign-related principle is not a stand-alone test. It has consistently been mandated through tests applicable to specific contexts, such as the

express-advocacy test, the major-purpose test, and the appeal-to-vote test. Leake

recognized this. 525 F.3d at 281-83, 287.

The FEC’s argument about lobbying has nothing to do with the regulation of

elections and so would require some authority other than the authority to regulate

elections that Buckley recognized as permitting regulation of unambiguously campaign related activity, 424 U.S. at 13. Under the Federal Election Campaign Act

and the Bipartisan Campaign Reform Act, the Federal Election Commission may

not rely on lobbying law to define the scope of communications subject to compelled disclosure in the election context. Leake made it clear that “[p]ursuant to

their power to regulate elections, legislatures may establish campaign finance

laws, so long as those laws are addressed to communications that are unambiguously campaign related.” 525 F.3d at 282-83 (emphasis added). And even com31

Case: 08-2257 Document: 16-1 Date Filed: 03/16/2009 Page: 40
pelled disclosure as to lobbying communications is restricted to unambiguouslylobbying-related communications.

B. The Disclosure Requirements Are Unconstitutional as Applied.

The FEC “agrees that CTP’s Ads are neither express advocacy nor ‘the functional equivalent of express advocacy.’” Opp’n Prelim. Inj. 8. They are WRTL-IIads. Id. Leake said that WRTL-II-ads are not unambiguously-campaign-related

communications and cannot be regulated. 525 F.3d at 283. So the Disclosure Requirements are unconstitutional as applied to WRTL-II-ads for failing to meet the

unambiguously-campaign-related principle as implemented through WRTL-II’s

appeal-to-vote test.

The Disclosure Requirements also fail “exacting scrutiny” because Buckley

applied exacting scrutiny after restricting the scope of the regulated communication with the express-advocacy test to implement the unambiguously-campaignrelated principle. See supra. So whatever exacting scrutiny requires, the interests

that justify compelled disclosure do not justify disclosure as to ads that are not

unambiguously campaign related under the applicable test, and the Disclosure Requirements thus fail exacting scrutiny for lack of any justifying interest.

Although there is no need to reach “exacting scrutiny” for the reasons just set

out, the level of scrutiny will be examined. The Supreme Court recently reaffirmed

that the level of “exacting scrutiny” to be applied depends on the “seriousness of

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the actual burden imposed.” Davis v. FEC, 128 S. Ct. 2759, 2775 (2008). Davis

reaffirmed that “‘compelled disclosure, in itself, can seriously infringe on privacy

of association and belief guaranteed by the First Amendment.’” Id. at 2774-75

(2008) (quoting Buckley, 424 U.S. at 64). Consequently, the Court said “we have

closely scrutinized disclosure requirements.” Id. at 2775 (emphasis added).

19

As to the “seriousness of the actual burden imposed” by the Reporting Requirements, there is a severe burden where disclosure is required for communications that are not unambiguously campaign related because the government is acting without constitutional authority in the face of the First Amendment’s freespeech presumption. There is also a severe burden because the Disclosure Requirements include the disclosure of donors. Buckley 424 U.S. at 64-66, 68 (identifying per se burdens), 237 (Burger, C.J., concurring in part and dissenting in

part) (stating examples of burdens). And whenever disclosure is a condition of

20

 Since the unambiguously-campaign-related principle constitutionally elimi- 19

nates the FEC’s subject-matter jurisdiction over activities not within the principle,

this case is analogous to Machinists, 655 F.2d 380, which applied “extra-careful

scrutiny,” id. at 387, under a compelling-interest standard, id. at 389, in determining that the FEC lacked jurisdiction to investigate a draft committee, id. at 396.

 Evidence of such burdens was put in McConnell’s record by NRA, Associ- 20

ated Builders and Contractors, Associated General Contractors of America, U.S.

Chamber, and ACLU. McConnell v. FEC, 251 F. Supp. 2d 176, 227-29 (D.D.C.

2003) (per curiam). Evidence ranged from large numbers of contributions just below the disclosure trigger, to vandalism after disclosure, to non-contribution because of concerns about ability to retain confidentiality, to concerns about employers, neighbors, businesses, and others knowing of support for causes not popular

33

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freely engaging in core political speech, that burden is a per se weighty burden

requiring that “exacting scrutiny” be strict. WRTL-II recognized this per se severe

burden when it held that if a provision “burdens political speech it is subject to

strict scrutiny.” WRTL-II, 127 S. Ct. at 2664 (emphasis added). WRTL-II-ads are

“political speech.” Id. at 2659, 2665-66, 2673-74. See also Leake, 525 F.3d at 277,

282-84, 288-89 (“ordinary political speech”), 283 (“regulation of speech as ‘the

functional equivalent of express advocacy’ warrants careful judicial scrutiny”). So

although WRTL-II’s statement that Buckley’s use of “exacting scrutiny” was “strict

scrutiny” referred to an expenditure-limitation context, 127 S. Ct. at 2669 n.7, under WRTL-II’s formulation the context didn’t matter. Buckley prescribed no lower

standard in the compelled-disclosure context as it had for contribution limits. In 21

everywhere and the results of such disclosure. Id. See also AFL-CIO v. FEC, 333

F.3d 168, 176, 179 (D.C. Cir. 2003) (disclosing volunteers, employees, and members would make it hard to recruit personnel) (applying strict scrutiny to strike

FEC rule releasing investigation materials after investigation); William

McGeveran, Mrs. McIntyre’s Checkbook: Privacy Costs of Political Contribution

Disclosure, 6 U. Pa. J. Const. L. 1 (2003); Dick M. Carpenter II, Disclosure Costs:

Unintended Consequences of Campaign Finance Reform (2007) (available at

http://www.ij.org/publications/other/disclosurecosts. html).

 While Buckley employed intermediate scrutiny for limits on contributions

21

that were not the donor’s own speech, 424 U.S. at 21, 25, the Ads are CTP’s

speech and not subject to intermediate scrutiny. The “intermediate scrutiny” formulation of the court below, JA–34, was the unambiguously-campaign-related

requirement that Buckley “also” required in addition to “exacting scrutiny,” 424

U.S. at 64. True intermediate scrutiny “requires the government to produce evidence that a challenged regulation ‘materially advances an important or substantial

interest by redressing past harms or preventing future ones. These harms must be

34

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McIntyre v. Ohio Elections Commission, 514 U.S. 334, 347 (1995), the Supreme

Court cited First National Bank of Boston v. Bellotti, 435 U.S. 765, 786 (1978), as

equating “exacting scrutiny” with “strict scrutiny.” McIntyre held that “exacting

scrutiny” requires “narrow tailoring.” 514 U.S. at 347. Bellotti held that “exacting

scrutiny” requires a “‘compelling’ interest.” 435 U.S. at 795.

As to the Disclaimer Requirement, the Supreme Court required strict scrutiny

for a disclaimer in McIntyre, affirming that “[w]hen a law burdens core political

speech, we apply ‘exacting scrutiny,’ and . . . uphold [it] only if . . . narrowly tailored to serve an overriding state interest.” 514 U.S. at 347.

So the “exacting scrutiny” applicable to the Disclosure Requirements is strict

scrutiny. In applying strict scrutiny, the FEC has the burden of proving that the 22

Disclosure Requirements are narrowly tailored to a compelling interest. See

WRTL-II, 127 S. Ct at 2664. It has that burden at the preliminary injunction stage.

“real, not merely conjectural,” and the regulation must “alleviate these harms in a

direct and material way.”’” Bason, 303 F.3d at 515 (citations omitted).

 “Exacting” means “unremittingly severe,” while “strict” means “stringent in 22

requirement” and “exact.” Merriam-Webster’s Collegiate Dictionary 402, 1161

(10th ed. 2001). “Exacting” is synonymous with “strict.” Random House Roget’s

College Thesaurus 24 (2000). Lower court have equated exacting and strict scrutiny. See McConnell, 251 F. Supp. 2d 176, 358 n.139 (D.D.C. 2003) (opinion of

Henderson, J.) (“In no case of which I am aware does the [Supreme] Court hold

that exacting scrutiny is any less rigorous than strict scrutiny”), id. n. 140 (courts

“apply exacting (i.e., strict) scrutiny to disclosure and reporting requirements”);

Nat’l Ass’n Mfrs. v. Taylor, 549 F. Supp. 2d 33, 51 (D.D.C. 2008) (reviewing Supreme Court authority).

35

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See supra at 18-19. And the Disclosure Requirements fail “exacting scrutiny” because the interests supporting compelled disclosure do not extend to WRTL-II-ads,

which are not unambiguously campaign related under WRTL-II’s appeal-to-vote

test. See supra at 8.

Although the three interests that Buckley recognized to justify disclosure don’t

apply to communications that are not unambiguously campaign related, it is instructive to consider them in light of WRTL-II-ads. “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.” Buckley, 424 U.S. at 66-67 (emphasis added) (footnote

omitted). “Second, 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. “Third, . . . recordkeeping, reporting, and disclosure 23

requirements are an essential means of gathering the data necessary to detect violations of the contribution limitations described above.” Id. at 67-68.

Buckley’s first interest by its terms deals with “campaign” funds and “candidate” spending, “to aid the voters in evaluating those who seek federal office,”

424 U.S. at 66-67 (emphasis added), so it has an inherent unambiguously-cam-

 “Contributions” and “expenditures” were terms of art that Buckley construed 23

in keeping with the unambiguously-campaign-related principle. Id. at 23 n.24

(“contribution”), 44 (“expenditure”), 78 (“contribution”), 80 (“expenditure”).

36

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paign-related limitation to which it should be restricted. As applied here, the Disclosure Requirements reach independent, issue-advocacy communications lacking

the relevant-correlation nexus to federal election “campaigns,” so they are unsupported by this interest.

The second and third of these interests deal with preventing corruption. For

independent expenditures any corruption interest is non-cognizable because

Buckley held that “[t]he absence of prearrangement and coordination . . . with the

candidate . . . undermines the value of the expenditure to the candidate . . . [and]

alleviates the danger [of] quid pro quo,” so that restrictions on independent expenditures do not “prevent[] circumvention of the contribution limitations . . . ,”

id. at 47. If this is true of independent express advocacy, then a fortiori it is true of

WRTL-II-ads, which are independent “issue advocacy,” 127 S. Ct. at 2667, i.e.,

ordinary “political speech,” id. at 2659, 2673. Moreover, WRTL-II questioned

whether a corruption interest even could apply to independent expenditures, id. at

2672, but held that, in any event, it did not apply to speech that is not the functional equivalent of express advocacy:

[T]o justify regulation of WRTL’s ads, this interest must be stretched yet

another step to ads that are not the functional equivalent of express advocacy.

Enough is enough. Issue ads like WRTL’s are by no means equivalent to

contributions, and the quid-pro-quo corruption interest cannot justify regulating them.

Id. at 2672 (emphasis in original). No corruption interest applies to WRTL-II-ads.

37

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WRTL’s identification of preventing quid-pro-quo corruption as the government’s compelling interest in regulating in the campaign-finance area is consistent

with Davis. 128 S. Ct. 2759. In Davis, the Supreme Court considered possible

compelling interests for burdening (not restricting) a self-funding candidate’s ability to make expenditures for his own speech. Id. at 2773. The Court reaffirmed that

the only compelling interest in this area is preventing corruption and its appearance. Id. See also Leake, 525 F.3d at 281 (“[O]nly unambiguously campaign related communications have a sufficiently close relationship to the government’s

acknowledged interest in preventing corruption to be constitutionally regulable.”).

So in the present context, where the Disclosure Requirements burden Appellants’

right to make and receive political speech, those requirements must be narrowlytailored to preventing corruption, which is nonexistent for WRTL-II-ads.

Since no interest supports applying the Disclosure Requirements to WRTL-IIads, the Disclosure Requirements fail any level of scrutiny. Looked at another

way, regulating activity that is not unambiguously campaign related or corrupting

cannot be narrowly (or even closely) tailored to an interest in regulating activity

that is unambiguously campaign related and potentially corrupting. And because

Congress constitutionally lacks subject-matter jurisdiction to regulate WRTL-IIads, no interest justifies the Disclosure Provisions. Cf. Machinists, 655 F.2d at 389

(“[I]f . . . the FEC lacks jurisdiction to enforce [an underlying statute] . . . , then no

38

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compelling interest for the subpoenaed information can possibly exist.”).

C. The FEC’s PAC-Enforcement Policy Is Unconstitutional and Void.

FECA defines “political committee” as “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)(A).24, 25

Applying the unambiguously-campaign-related principle, Buckley narrowed

the potential for a group to be saddled with PAC burdens that WRTL-II declared

“onerous”, 127 S. Ct. at 2671 n.9 (“PACs impose well-documented and onerous

burdens, particularly on small nonprofits.”). Buckley narrowly construed “contribution,” 424 U.S. at 23 n.24, 78, and “expenditure,” id. at 44, 80, and limited PACstatus with the major-purpose test, id. at 79.

After Buckley, the only “expenditures” triggering PAC status are express-advocacy “independent expenditures,” 2 U.S.C. § 431(17). The only “contributions”

triggering PAC status are “[f]unds provided to a candidate or political party or

campaign committee” or “dollars given to another person . . . earmarked for politi-

 A “separate segregated fund” may also be a PAC. 2 U.S.C. § 431(4)(B).

24

 Imposition of PAC burdens is subject to strict scrutiny. See Austin v. Mich.

25

State Chamber of Commerce, 494 U.S. 652, 658 (1990) (“Although [PAC] requirements do not stifle corporate speech entirely, they do burden expressive activity. See MCFL, 479 U.S., at 252 (plurality opinion); id., at 266 (O’CONNOR,

J.). Thus, they must be justified by a compelling state interest.”).

39

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cal purposes.” 424 U.S. at 23 n.24. And the only groups subject to imposed PAC 26

status are those under candidate control or with the “major purpose of nominating

or electing candidates.” Id. at 79. Leake held that the test for “the major purpose”

(not a major purpose) of a group, 525 F.3d at 287, is determined as “an empirical

judgment as to whether an organization primarily engages in regulable, election-related speech,” id. at 287 (emphasis added).

Under these PAC criteria, intrusive and burdensome investigations were unnecessary to determine PAC status because a few bright-line facts could readily

determine major purpose. PAC status may be determined by either an entity’s independent expenditures, MCFL, 479 U.S. at 262, or its central purpose revealed 27

in its organic documents, id. at 252 n.6 (“[O]n this record . . . MCFL[’s] . . . central

organizational purpose is issue advocacy.”). The first test requires a simple comparison of the entity’s total disbursements for a year for regulable expenditures,

i.e., true “contributions” and “expenditures,” compared to its total expenditures to

 As Buckley construed regulated activity narrowly with its unambiguously26

campaign-related analysis, “political purposes” here refers to the unambiguouslycampaign-related activities that Buckley discussed, i.e., making “contributions” or

“expenditures,” or as Leake put it,“actions that are ‘unambiguously related to the

campaign of a particular . . . candidate,’” 525 F.3d at 281, i.e., “regulable, electionrelated speech,” id. at 287.

 “[S]hould MCFL’s independent spending become so extensive that the orga- 27

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

would be classified as a political committee.” Id.

40

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see if more than 50% (“major purpose”) of its disbursements are for regulable,

election-related activity. The nominator and denominator can be quickly determined with minimal effort and evidence (e.g., by affidavit and typically by reference to an IRS Form 990 showing annual receipts and expenditures). The second

test requires simply an examination of the entity’s organic documents to determine

if there was an express intention to operate as a political committee, e.g., by being

designated as a “separate segregated fund” (an internal “PAC”) under 2 U.S.C.

§ 441b(2)(c). The First Amendment requires such bright-line tests to prevent burdensome, intrusive investigations and litigation that can “constitute[] a severe burden on political speech,” WRTL-II, 127 at 2666 n.5.

The FEC’s contrary PAC-enforcement policy is set out in PAC-Status 1 and

PAC-Status 2. See supra at 6. As stated in the Verified Complaint, the policy “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 ‘in excess of the

statutory . . . authority . . .’ of the FEC, so as to be void under 5 U.S.C. § 706.”

JA–22.

28

 The invalid regulations on “expenditure” and “contribution” are 11 C.F.R. 28

§§ 100.22(b) (secondary express-advocacy definition based on vague and overbroad standards) and 100.57 (converting donations to “contributions” if made in

response to a solicitation to “support or oppose” candidates). Section § 100.22(b)

is unconstitutional because express advocacy requires so-called magic words,

41

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The FEC’s version of the major-purpose test is a central element of its enforcement policy. In PAC-Status 2, the FEC explained that, after having initiated a

rulemaking proceeding, it declined to adopt a rule for the major-purpose test because “the major purpose doctrine . . . requires the flexibility of a case-by-case

analysis of an organization’s conduct.” 72 Fed. Reg. at 5601. Instead, it set out its

vague and overbroad enforcement policy. The policy requires the FEC to engage

in “a fact intensive inquiry” in order to weigh various vague and overbroad factors

with undisclosed weight. It requires “investigations into the conduct of specific

organizations that may reach well beyond publicly available statements,” including such things as an investigation into all an organization’s “spending on Federal

campaign activity” (not limited to “regulable, election-related speech,” as required

by Leake, 525 F.3d at 287) and other spending, as well non-public statements, including statements to potential donors. 72 Fed. Reg. at 5601.29

Leake, 525 F.3d at 182-83, but it is not at issue here unless someone claims that

CTP’s Ads are express advocacy. Section 100.57 is unconstitutional, but it should

not be at issue, although the FEC sometimes uses it as a pretext to conduct fishing

expeditions, see infra, which would place it at issue if done here. The Verified

Complaint, at ¶ 28, affirms that “[e]xpenditures for solicitations to CTP will be insubstantial,” so § 100.57 is inapplicable here, either in triggering the $1,000 PACstatus threshold or establishing major purpose test. If the FEC asserts that § 100.57

may be applicable, CTP challenges it as unconstitutionally vague and overbroad.

PAC-Status 2 identified the “major purpose” at issue in its major-purpose 29

test as being “Federal campaign activity,” id. at 5605 (emphasis added), not the

narrower “nomination or election of a candidate,” which Buckley required as “the

major purpose,” Buckley, 424 U.S. at 79 (emphasis added). While MCFL used

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PAC-Status 2 indicated that the FEC would consider other factors when it discussed its application of the policy to some 527 organizations in previous investigations. 72 Fed. Reg. at 5603-04. These included the fact that an entity spent much

of its money “on advertisements directed to Presidential battleground States and

direct mail attacking or expressly advocating,” id. at 5605 (emphasis added), the

fact that groups ceased activity after an election, id., and the fact that they did not

make disbursements in state and local races, id. In addition, the FEC thought it

permissible to divine major purpose from internal planning documents and budgets, id., which would normally be protected by First Amendment privacy rights

and were only obtained because the organization was subjected to a burdensome,

intrusive investigation (sometimes absent evidence of triggering contributions or

expenditures, see infra). Major purpose was even based on a private thank-you

letter to a donor, after the donation had already been made. Id.

In sum, the enforcement policy is based on an ad hoc, case-by-case, analysis of

vague and impermissible factors applied to undefined facts derived through broad-

“campaign advocacy,” 479 U.S. at 252 (plurality opinion) (emphasis added), to

“further the election of candidates,” id. at 253 (plurality opinion) (emphasis

added), and “campaign activity,” id. at 262 (majority opinion), when speaking of

the purpose at issue in the major-purpose test, it did so solely as synonyms for

Buckley’s “nomination or election” requirement, which it cited and quoted, MCFL,

479 U.S. at 252 n.6 (citing Buckley, 424 U.S. at 79). There is no authority for the

FEC’s reformulation of the major-purpose test to focus on “Federal campaign activity, and it clearly is beyond Leake’s mandated focus on “regulable, election-related speech,” 525 F.3d at 287 (emphasis added).

43

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ranging, intrusive, and burdensome investigations (usually begun when a complaint is filed by a political or ideological rival) without adequate bright lines to

protect issue advocacy in this core First Amendment area. In the words of Leake,

the policy is a forbidden “‘we’ll know it when we see it approach’” that “is essentially handing out speeding tickets without ‘telling anyone . . . the speed limit.’”

525 F.3d at 290 (citations omitted). It “simply does not provide sufficient direction

to either regulators or potentially regulated entities. Unguided regulatory discretion and the potential for regulatory abuse are the very burdens to which political

speech must never be subject.” Id. Moreover, the policy encourages investigations,

which can, in themselves, shut down an organization.

The FEC’s policy is unconstitutionally vague for employing indeterminate, ad

hoc factors. “If the First Amendment protects anything, it is the right of political

speakers to express their beliefs without having to fear subsequent civil and criminal reprisals from regulators authorized to employ broad and vague definitions as

they see fit.” Leake, 525 F.3d at 302. The FEC’s policy is overbroad because it

determines major purpose based on activity that is not unambiguously campaign

related and is inconsistent with Leake’s holding that the major purpose is determined “as an empirical judgment as to whether an organization primarily engages

in regulable, election-related speech,” id. at 287 (emphasis added). And because

Buckley’s, MCFL’s, and Leake’s major-purpose test is an authoritative construc44

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tion of the definition of “political committee,” and a constitutional limit on the

application of FECA political committee requirements, the FEC’s contrary policy

is beyond statutory authority and void. 5 U.S.C. § 706 (APA).

In briefing below, the FEC questioned whether CTP has Article III standing to

challenge the policy because CTP did not allege that it had reached the $1,000

trigger in contributions or expenditures and because CTP said in its Verified Complaint that it lacked the requisite major purpose. Opp’n Prel. Inj. 23 n.11. CTP no

more thinks that it is a PAC than did the organizations deemed PACs by the FEC,

as set out in PAC-Status 2. The problem is knowing what the FEC thinks about

CTP’s status, which is based on an uncertain policy that requires investigations.

The FEC has not said that it does not believe CTP is a PAC or that the FEC will

not investigate and enforce its policy. CTP reasonably fears that the FEC will investigate as a means to deciding whether it thinks that CTP is a PAC under its policy because the FEC says it can’t know absent an investigation.

The FEC has launched investigations even absent evidence of a “contribution,” “expenditure,” or “major purpose.” For example, the FEC General Counsel’s Report #2 in MUR 5751 (The Leadership Forum) (available at www.fec.gov)

noted that “TLF argued that the Complaint cited no evidence that it had participated or intended to participate in any federal election,” but said that “TLF’s response . . . did not answer or foreclose questions about whether it may have re45

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ceived more than $1,000 in contributions or made more than $1,000 in expenditures.” Id. at 1-2 (emphasis added). So even without evidence of the statutory

$1,000 threshold being met, the FEC launched a fishing expedition based on its

PAC-enforcement policy. It found insufficient evidence and closed the file, but an

intrusive, burdensome investigation had already occurred, all without any evidence at the outset. MUR 5751 is no mere aberration because in PAC-Status 2 the

FEC cites it as a case supporting its policy. 72 Fed. Reg. 5605.

All that stands between CTP and a constitutionally-unwarranted investigation

and enforcement action (since the FEC disagrees with the constitutional claims

herein) is the FEC’s decision to act regarding a known violation of the Disclosure

Requirements. The nature and past application of the FEC’s enforcement policy

gives Appellants standing to challenge the policy.

In sum, Appellants have likely success on the merits of their constitutional

challenges to the Disclosure Requirements and the PAC-enforcement policy. If

there is no constitutional basis on which Congress and the FEC could regulate

CTP’s activities, then there is no foundation for an investigation or enforcement

action. Sublato fundamento cadit opus, “the foundation being removed, the superstructure falls.” Black’s Law Dict.1278 (5th ed. 1979).

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III. CTP Has Irreparable Harm.

Bason demonstrates that once likeloihood of success on the merits is established in First Amendment cases the remaining preliminary-injunction analysis is

succinct and settled. 303 F.3d at 520-21.

In First Amendment cases, irreparable harm is “‘inseparably linked’” to the

likelihood of success on the merits. Id. at 511 (citation omitted). Once that is es- 30

tablished, there is automatic “‘irreparable injury’” because “‘loss of First Amendment rights, for even minimal periods of time, constitutes irreparable injury,’” id.

at 520-21 (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976) (citation omitted)).

Bason also noted the irreparable harm of the “threat of a substantial fine . . . on the

basis of past conduct.” Id. at 521. Both irreparable injuries are present here.

Appellants have established a high likelihood of success on the merits, i.e., (1)

that the Disclosure Requirements are unconstitutional as applied to WRTL-II-ads

and (2) that the PAC-enforcement policy is unconstitutional and beyond statutory

authority. So any investigation or enforcement action for failure to comply with

the Disclosure Requirements or to determine if CTP is a PAC under the policy

would be unlawful. Unlawful investigations of, and enforcement actions against,

citizens by federal agencies for the citizens’ expressive association constitute ir-

 Highly likely merits success reduces the need to demonstrate irreparable 30

harm. See Blackwelder, 550 F.2d at 196 (“flexible interplay” among factors).

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reparable harm per se. U.S. Const. amend. I. An agency barred by the First

Amendment from compelling disclosure in the McIntyre case, could not lawfully

have used Mrs. McIntyre’s free-speech activities as a pretext to investigate her

finances and activities because she might have done something regulable. Cf.

McIntyre, 514 U.S. 334. If CTP is subjected to a foundationless investigation and

enforcement action it will lose its right to First Amendment privacy because

“compelled disclosure, in itself, can seriously infringe on privacy of association

and belief guaranteed by the First Amendment,” Davis, 128 S. Ct. at at 2774-75

(2008) (quoting Buckley, 424 U.S. at 64).31

And because there is a known violation of the Disclosure Requirements (and

because the FEC still enforces them and its PAC-enforcement policy) there is a

threat of a substantial fine. This could arise from an enforcement action (because

the FEC disagrees with Appellants’ constitutional challenge) or come in the sort of

coercive conciliation agreement that the FEC points to in PAC-Status 2. Small advocacy groups commonly acquiesce in such agreements to avoid burdensome, in-

 At the preliminary injunction hearing, the FEC argued that during an investi- 31

gation courts could be called upon to protect rights through protective orders, Tr.

41-42, and that Machinists showed how a wrongful investigation could be shut

down. Tr. 42. But Machinists recognized that there should not even be an investigation if there is no authority for one. 655 F.2d at 396-97 (absent subject-matter

jurisdiction there should not have been any investigation). Machinists confirms

that a constitutionally-unwarranted investigation is a cognizable burden that may

not be imposed absent jurisdiction and constitutional justification. Id. at 389, 396

& n.32.

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trusive, costly investigations and enforcement actions.

An investigation of, and enforcement action against, CTP is likely and imminent because CTP has by this lawsuit notified the FEC that it is not in compliance

with the Disclosure Requirements. The FEC has held off initiating any investigation or enforcement action for its own reasons (which it has not explained), but it

could initiate such action at any time. And as noted above, it has launched inves32

tigations to determine PAC status under its enforcement policy when there was no

evidence that the statutory trigger had been met because evidence might be found.

So the absence of a current investigation or enforcement action does not eliminate

the risk of irreparable harm absent the requested preliminary injunction. A preliminary injunction to stop demolition of a house need not await demolition before it

may issue. The injunction is to stop the imminent threat before it happens.

Moreover, as argued to the district court, Tr. 51, the present Court has recognized that the threat of prosecution is inherent in the statute, regardless of whether

an election board plans to initiate enforcement pursuant to a challenged provision.

See North Carolina Right to Life v. Bartlett, 168 F.3d 705, 710-11 (4th Cir. 1999),

cert. denied, 528 U.S. 1153 (2000). The threat of harm to expressive association

 The FEC lacks the “roving” investigatory powers of other federal agencies 32

(its “‘random’ auditing authority” was removed), so it normally investigates on the

basis of complaints, but it may investigate based on “‘information ascertained in

the normal course of carrying out its supervisory responsibilities.’” Machinists,

655 F.2d at 387-88 & n.15 (citations omitted).

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that was recognized as sufficient for standing in Bartlett is just as harmful in the

preliminary injunction context. And loss of First Amendment rights is always irreparable. See infra.

An investigation, in and of itself, is a First Amendment burden that must be

constitutionally and statutorily justified. Unique among federal administrative

agencies, the FEC has as its sole purpose the regulation of core constitutionally

protected activity—“the behavior of individuals and groups only insofar as they

act, speak and associate for political purposes.” Machinists, 655 F.2d at 387. As a

result, FEC investigations into alleged campaign-finance law violations frequently

involve subpoenaing materials of a “delicate nature . . . representing the very heart

of the organism which the first amendment was intended to nurture and protect:

political expression and association concerning federal elections and office holding.” Id. at 388; see id. at 387 (“extra-careful scrutiny” is warranted where political activities and association are subject to investigation). When investigations

impinge on freedom of speech, that power must be “carefully circumscribed” if it

is to avoid violating First Amendment rights. Sweezy v. New Hampshire, 354 U.S.

234, 245 (1957); see also AFL-CIO v. FEC, 333 F.3d 168, 176-178 (D.C. Cir.

2003) (describing the chilling effect governmental investigations and forced disclosures have on protected First Amendment activities). “‘The Supreme Court has

long recognized that compelled disclosure of political affiliations and activities

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can impose just as substantial a burden on First Amendment rights as can direct

regulation.’” Id. at 175-76 (citing Buckley, 424 U.S. at 64-68, (1976); NAACP v.

Alabama ex rel. Patterson, 357 U.S. 449, 462-63 (1958)).

The First Amendment requires bright-line express-advocacy, appeal-to-vote,

and major-purpose tests to minimize the danger of constitutionally unjustified investigations and allow dismissal of complaints at an early stage. Without brightline rules, election commissions are free to conduct incredibly burdensome and

intrusive investigations. The investigation of the Christian Coalition in FEC v.

Christian Coalition, 52 F. Supp. 2d 45 (D.D.C. 1999), is a dramatic and tragic illustration of the burden and intrusion caused by an investigation. The FEC’s investigation spanned six and a half years as it tried to ferret out any evidence of

contacts between people associated with the Coalition and various candidates to

support its opportunity-for-coordination standard. The FEC took 81 separate de- 33

positions of 48 different individuals, from the former President and Vice President

of the United States and staff members of various campaigns, to past and present

Coalition employees and volunteers. The breadth of the probe into every aspect,

past, present, and even future, of the deponents’ political activities was mind-boggling. Irrelevant and personal questions were asked of the deponents, including

 James Bopp, Jr., counsel for CTP, was counsel for the Christian Coalition in

33

the case discussed.

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questions about their spouses’, family members’ (including children and in-laws),

fellow volunteers’, and other individuals’ political and religious affiliations, campaign activities, political-party activities, candidacies, private business dealings,

and legislative and lobbying activities “[b]ecause its something that we need to

know.” See Christian Coalition Summ. J. Mem. at 60, 52 F. Supp. 2d 45. This

bone-chilling statement by an FEC attorney in Christian Coalition is a harbinger

of future investigations absent adherence to the Supreme Court’s mandated brightline tests implementing the unambiguously-campaign-related principle.

The Coalition was also required to produce tens of thousands of pages of documents, many of them containing sensitive and proprietary information about finances and donor information. In all, the Coalition searched both its offices and

warehouse, where millions of pages of documents were stored, in order to produce

over 100,000 pages of documents. Third parties were also required to comply with

burdensome FEC document requests and produce irrelevant yet confidential and

proprietary information such as polls, surveys, and internal memoranda. The Bush

Presidential archivists were required to search through two warehouses full of

boxes without the benefit of a catalogue. Such investigations impose substantial

burdens on third parties and can have serious adverse consequences. All in all, the

investigation was exceedingly burdensome, costing the Coalition hundreds of

thousands of dollars in attorneys fees and countless lost hours of work by Coali52

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tion employees and volunteers. In Washington, it is often said that “the procedure

is the punishment.” Christian Coalition proves that statement correct. Although

the Christian Coalition won every allegation about coordination, it was still punished by a burdensome and intrusive investigation. Christian Coalition demonstrates what happens when bright-line First Amendment rules are not followed.

34

Such harm is irreparable. At the preliminary injunction hearing, the FEC argued that “[i]f they win, then we deserve to pay penalties. And that is not irreparable harm.” TS 43. But they won’t “pay penalties.” Attorney fees and expenses incurred in complying with an unwarranted investigation are not available in cases

against the FEC, except under the difficult “substantially-justified” standard. See

FEC v. Christian Action Network, 110 F.3d 1049 (4th Cir. 1997). No one pays for

all of the staff time required to respond to an FEC investigation or discovery. The

FEC doesn’t reimburse the organization for the lost opportunity to advocate its

issues when it was immobilized by an FEC investigation. Loss of First Amendment rights is irreparable. Monetary damages, even if available, cannot compensate for the loss of First Amendment rights. And if an organization like the Christian Coalition is destroyed by an FEC fishing expedition, even though proven innocent of wrongdoing, the FEC won’t, and can’t, repair the harm.

 After Herman Clark lost a primary and spent four years embroiled in an FEC 34

investigation, he lacked resources to litigate and wanted to put the matter behind

him. FEC v. Public Citizen, 64 F. Supp.2d 1327, 1334 (N.D. Ga. 1999).

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The FEC argues that a Federal Trade Commission case establishes that an investigation is not a cognizable irreparable injury. Tr. 41 (citing FTC v. Standard

Oil Co. Cal., 449 U.S. 232, 244 (1980). But that simply brings us full circle to the

central problem of this case, i.e., failure to recognize that this is a First Amendment case and to apply speech-protective standards. Machinists rejected just the

sort of argument that the FEC asserts, holding that the

novel extension of the Commission’s investigative authority warrants extra-careful scrutiny from the court because the activities which the FEC normally investigates differ in terms of their constitutional significance from

those which are of concern to other federal administrative agencies whose

authority relates to the regulation of corporate, commercial, or labor activities.

655 F.2d at 388. The D.C. Circuit quoted the Supreme Court’s clear statement that

“‘a governmental investigation into corporate matters may be of such a sweeping

nature and be so unrelated to the matter properly under inquiry as to exceed investigatory power.’” Id. at 385 (quoting United States v. Morton Salt Co., 388 U.S.

632, 652 (1950). And it noted that the subject matter of the FEC’s investigation “is

of a fundamentally different character from the commercial or financial data which

forms the bread and butter of SEC or FTC investigations.” Id. at 388. The Eleventh Circuit agreed with Machinists that an FEC investigation is a cognizable First

Amendment burden that mandates careful scrutiny of the underlying authority for

the investigation. Florida for Kennedy, 781 F.2d at 1284-85 (disallowing investi54

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gation). In any event, even the Federal Trade Commission may not lawfully pursue investigations into unregulable activities, certainly not activities protected

from regulation by the First Amendment.

IV. The Balance of Harms Favors Appellants.

Bason made short work of the balance of harms after finding a First Amendment violation likely: “With respect to the harm that would befall if the injunction

is left in place, we agree with the district court that a state is ‘in no way harmed by

issuance of a preliminary injunction which prevents the state from enforcing restrictions likely to be found unconstitutional. If anything, the system is improved

by such an injunction.’” 303 F.3d at 521 (citation omitted).

Here, the balance of harms also tips sharply in Appellants’ favor. On the

FEC’s side is an asserted enforcement interest that is nonexistent or de minimis

because of highly likely merits success. If the challenged provisions and policy are

unconstitutional, Defendant has no cognizable interest in enforcing them. To the 35

extent the FEC has any remaining interest in investigating CTP, that interest is not

jeopardized because the preliminary injunction would only protect CTP until a

 As another district court held recently in issuing a preliminary injunction, 35

“‘if the plaintiff shows a substantial likelihood that the challenged law is unconstitutional, no substantial harm to others can be said to inhere to its enjoinment.’”

Ohio Right to Life, No. 08-492, 2008 WL 4186312 at *11 (citation omitted); see

also CFIF, No. 1:08-190, slip. op. at 13 (S.D. W. Va. April 22, 2008) (Dkt. 37;

mem. granting prelim. inj.) (“carefully tailored injunction will not unduly restrict

the defendants’ power to regulate the election process in legitimate ways”).

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merits decision. If CTP wins, the FEC had no interest in investigating CTP anyway. If CTP loses, the FEC may proceed with an investigation and an enforcement

action. The preliminary injunction only preserves the status quo—no investigation—until a merits decision.

36

On CTP’s side, an investigation would compel the very disclosure that CTP

contests. CTP would lose the First Amendment privacy to which it is entitled absent a government showing that piercing that privacy is constitutionally justified.

No compensation can make up for lost First Amendment rights, and CTP would

not even receive compensation for attorneys fees and expenses, lost staff time, and

lost opportunity for furthering its First Amendment activities.

The FEC has nothing to lose. CTP has much to lose of a highly-valued nature.

The balance of harms tips sharply in CTP’s favor.

V. The Public Interest Favors Appellants.

Bason also made short work of the public interest factor: “we agree . . . that

upholding constitutionalrights surely servesthe public interest.” 303 F.3d at 521. See

also CFIF, Nos. 08-190 & 08-1133, 2008 WL 4642268, at *27 (“protection of First

Amendment rights is very much in the public’s interest”). Here, the public interest

also follows the high likelihood of merits success shown and favors Appellants. The

 Numerous campaign-finance provisions remain in effect to protect the gov36

ernmental interests the Supreme Court has identified in this area—to the extent

that they regulate only unambiguously-campaign-related activity.

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public has an interest in the government enacting constitutional laws and policies and

enforcing them in a constitutionally-permissible manner. It has an interest in promoting core political speech. It has a First Amendment interest in receiving CTP’s

speech. An injunction serves these interests. “[I]ssuance of a preliminary injunction

will serve the public interest because ‘it is always in the public interest to prevent

violation of a party’s constitutionalrights.’” Ohio Right to Life, No. 08-492, 2008 WL

4186312 at *11 (citation omitted).

Protection of freedom of speech in a democratic society is of critical public

interest. In this case, it appears that several provisions . . . are vague, and

consequently chill the public’s right to speak on political matters. Accordingly, the court finds that the public has a strong interest in having the challenged laws enjoined or clarified.

CFIF, No. 1:08-190, slip. op. at 14 (S.D. W. Va. April 22, 2008) (internal citation

omitted) (Dkt. 37; mem. granting prelim. inj.).

Conclusion

For the foregoing reasons, the district court’s denial of a preliminary injunction

should be reversed and this case remanded with instructions to issue a preliminary

injunction and to require no security because Defendant has no monetary stake.

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Oral Argument

Appellants request oral argument due to the complex nature of the issues.

Respectfully submitted,

James Bopp, Jr.

Richard E. Coleson

Clayton J. Callen

BOPP, COLESON & BOSTROM

1 South Sixth Street

Terre Haute, IN 47807-3510

812/232-2434

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Certificate of Service

I hereby certify that on March 16, 2009, I electronically filed the foregoing with

the Clerk of Court using the CM\ECF System, which will send notice of such filing

to the following registered CM\ECF users:

David Kolker

Harry J. Summers

Claire N. Rajan

FEDERAL ELECTION COMMISSION

999 E Street NW

Washington, DC 20463

202/694-1650

Counsel for Defendant-Appellee

I further certify that on March 16, 2009, I served upon the below listed nonCM/ECF participants copies of this document by First-Class Mail postage prepaid

and by email at the listed addresses.

Thomasenia P. Duncan

tduncan@fec.gov

FEDERAL ELECTION COMMISSION

999 E Street NW

Washington, DC 20463

Counsel for Defendant-Appellee

 /s/ James Bopp, Jr. 

James Bopp, Jr. 

BOPP, COLESON & BOSTROM

1 South Sixth Street

Terre Haute, IN 47807-3510

812/232-2434 telephone

812/235-3685 facsimile

Counsel for Appellants

Case: 08-2257 Document: 16-1 Date Filed: 03/16/2009 Page: 68