UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF WYOMING

_________________________________________

)

FREE SPEECH, )

)

Plaintiff, )

) Case No. 12-CV-127-S

v. )

)

FEDERAL ELECTION COMMISSION, )

)

Defendant. )

_________________________________________ )

MEMORANDUM OF CAMPAIGN LEGAL CENTER

AND DEMOCRACY 21 AS AMICI CURIAE IN OPPOSITION

TO PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION

Donald J. Simon

(DC Bar No. 256388)

SONOSKY, CHAMBERS, SACHSE

ENDRESON & PERRY, LLP

1425 K Street, NW, Suite 600

Washington, DC 20005

Tel.: (202) 682-0240

Fax: (202) 682-0249

Fred Wertheimer,

(DC Bar No. 154211)

DEMOCRACY 21

2000 Massachusetts Avenue, NW

Washington, DC 20036

Tel.: (202) 429-2008

Fax: (202) 355-9606

Counsel for Amici Curiae

 

Larry B. Jones, WSB # 5-1847

SIMPSON, KEPLER & EDWARDS, LLC

The Cody, Wyoming Division of

BURG SIMPSON ELDREDGE HERSH &

JARDINE, P.C.

1135 14th Street

P.O. Box 490

Cody, WY 82414

ljones@skelaw.com

Tel.: (307) 527-7891

Fax: (307) 527-7897

J. Gerald Hebert

(VA Bar No. 38432)

Tara Malloy

(DC Bar No. 988280)

Paul S. Ryan

(DC Bar No. 502514)

THE CAMPAIGN LEGAL CENTER

215 E Street, NE

Washington, DC 20002

Tel.: (202) 736-2200

Fax: (202) 236-2222

Counsel for Amici Curiae

*Counsel of Record

Case 2:12-cv-00127-SWS Document 27-2 Filed 08/10/12 Page 1 of 32
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TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................................................................................ii

INTRODUCTION AND SUMMARY OF ARGUMENT........................................................1

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

I. Strict Scrutiny Is Not Applicable to This Court’s Review of 11 C.F.R. § 100.22(b)

or the FEC’s “Major Purpose”Test............................................................................4

A. The Challenged Rules All Pertain to Disclosure, and Thus Are Subject

Only to “Exacting Scrutiny.”..........................................................................4

B. There Is No Basis for the Application of Strict Scrutiny. ................................6

II. The Definition of “Expressly Advocating”at 11 C.F.R. § 100.22(b) Is

Indistinguishable From the WRTL Express Advocacy Test and Is Constitutional......10

A. The Constitutionality of the Subpart (b) Definition of “Expressly

Advocating”Is Supported by McConnell, WRTL and Citizens United...........11

B. Lower Court Decisions Following Citizens United Have Recognized the

Validity of WRTL’s Test for the Functional Equivalent of Express

Advocacy. ....................................................................................................17

III. The FEC’s “Major Purpose”Test Is Constitutional. .................................................20

CONCLUSION .......................................................................................................................24

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TABLE OF AUTHORITIES

Cases:

Buckley v. Valeo, 424 U.S. 1 (1976)...................................................................3, 6, 7, 11, 20, 22

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

Colorado Right to Life Comm., Inc. v. Coffman, 498 F.3d 1137 (10th Cir. 2007).................19, 22

Doe v. Reed, 130 S. Ct. 2811 (2010)........................................................................................2, 7

FEC v. Beaumont, 539 U.S. 146 (2003).......................................................................................7

FEC v. Christian Coalition, 52 F. Supp. 2d 45 (D.D.C. 1999)...................................................13

FEC v. Furgatch, 807 F.2d 857 (9th Cir. 1987).........................................................................12

FEC v. GOPAC, 917 F. Supp. 851 (D.D.C. 1996) ...............................................................23, 24

FEC v. Malenick, 310 F. Supp. 2d. 230 (D.D.C. 2004)........................................................23, 24

FEC v. Massachusetts Citizens for Life, 479 U.S. 238 (1986).......................................... 9, 21, 22

FEC v. Survival Education Fund, 65 F.3d 285 (2d Cir. 1995)......................................................4

FEC v. Wisconsin Right to Life (WRTL), 551 U.S. 449 (2007)..........................3, 6, 11, 14, 15, 16

Human Life of Washington v. Brumsickle, 624 F.3d 990 (9th Cir. 2010)................................8, 16

Iowa Right to Life Committee, Inc. v. Tooker, 795 F. Supp. 2d 852 (S.D. Iowa 2011)..................8

Maine Right to Life Cmte. v. FEC, 914 F. Supp. 8 (D. Maine 1996), aff’d per curiam, 98

F.3d 1 (1st Cir. 1996), cert. denied, 522 U.S. 810 (1997)...........................................................13

McConnell v. FEC, 540 U.S. 93 (2003)............................................................3, 7, 11, 13, 17, 21

Nat’l Org. For Marriage v. McKee, 649 F.3d 34 (1st Cir. 2011)..................................................8

National Organization for Marriage Inc. v. Sec. State of Fla., 753 F. Supp. 2d 1217 (N.D.

Fla. 2010), aff’d 2012 WL 1758607 (11th Cir. May 17, 2012)......................................... 7, 15, 18

New Mexico Youth Organized v. Herrera, 611 F.3d 669 (10th Cir. 2010)........................ 8, 19, 22

Real Truth About Abortion v. FEC, 681 F.3d 544 (2012).................................................... passim

Right to Life of Duchess Co., Inc. v. FEC, 6 F. Supp. 2d 248 (S.D.N.Y. 1998) ..........................13

Shays v. FEC, 511 F. Supp. 2d 19 (D.D.C. 2007) ......................................................................23

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SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir. 2010).......................................................4, 5, 9

Yamada v. Kuramoto, 2010 WL 4603936 (D. Haw. Oct. 29, 2010) .............................................8

Statutes and Regulations:

2 U.S.C. § 432................................................................................................................. 2, 4, 5, 8

2 U.S.C. § 433................................................................................................................. 2, 4, 5, 8

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

2 U.S.C. § 434(f)(3) ..................................................................................................................13

2 U.S.C. § 434(a)(4)........................................................................................................ 2, 4, 5, 8

2 U.S.C. § 441a(a)(1)..............................................................................................................5, 8

2 U.S.C. § 441a(a)(2)..............................................................................................................5, 8

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

2 U.S.C. § 441b(b)(2)............................................................................................................9, 13

2 U.S.C. § 441b(b)(4)..................................................................................................................9

2 U.S.C. § 441d...........................................................................................................................5

11 C.F.R. 100.22(b) ........................................................................................................... passim

Miscellaneous Resources:

FEC Notice 2007-3, “Political Committee Status,”72 Fed. Reg. 5595 (Feb. 7, 2007)................21

FEC AO 2010-09 (Club for Growth)...........................................................................................5

FEC AO 2010-11 (Commonsense Ten).......................................................................................5

Free Speech AOR 2012-11 (February 29, 2012)..........................................................................1

FEC AO 2012-11, Draft B (April 11, 2012) ............................................................................1, 3

FEC AO 2012-11 (Free Speech)..................................................................................................1

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INTRODUCTION & SUMMARY OF ARGUMENT

Plaintiff Free Speech was organized in February of this year for the stated purpose of

running advertisements that discuss the positions of President Obama and other “public servants

and candidates for public office”on gun rights, land rights, environmental policy, health care and

free speech. See Complaint, ¶¶ 13, 15-17; Free Speech AOR 2012-11 (February 29, 2012). 

Plaintiff is free to spend as much money as it wishes on such independent advertisements,

and to raise this money without limit from a wide range of sources, including wealthy

individuals, corporations and unions. But fearing that its spending might qualify it as a federal

“political committee”subject to disclosure requirements under the Federal Election Campaign

Act (FECA), plaintiff filed an advisory opinion request earlier this year with the Federal Election

Commission (FEC), urging the agency to find that a number of its proposed campaign ads were

not regulable as “express advocacy.” Although the FEC issued an advisory opinion agreeing

with plaintiff and finding that four of its proposed ads were not express advocacy, see FEC AO

2012-11 (Free Speech), plaintiff nevertheless filed this suit to challenge the constitutionality of

the FEC rule defining express advocacy, the FEC’s policy governing the determination of federal

“political committee”status and the views on the definition of “solicitation”expressed in a nonbinding draft of the Free Speech advisory opinion. See Complaint, Counts 1-4 (challenging 11

C.F.R. 100.22(b), the FEC’s “major purpose”policy and FEC AO 2012-11, Draft B (April 11,

2012)). 

Plaintiff devotes its complaint and brief to denouncing the FEC’s advisory opinion

process and excoriating the challenged rule and agency policies as, inter alia, “the nation’s

largest system of prior restraint,”a “labyrinth,”a “model of murkiness,”a “comprehensive

system of speech censorship, intimidation and vagary,”a “multiverse of confusion and caprice,”

“the mountain of obscurity,”and a “complicated maze of ever-shifting, undefined regulatory

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burdens.” See Memorandum in Support of Motion for Preliminary Injunctive Relief, at 4, 6, 15,

23, 27, 28 (July 13, 2012) (“Pl. Br.”). But plaintiff’s invective should not be permitted to

obscure that its case concerns only disclosure. The rules and policies challenged here implement

only the federal disclosure requirements that are applicable to “independent expenditures”and

that accompany federal political committee status. See 2 U.S.C. § 434(c) (reporting

requirements for “independent expenditures”); 2 U.S.C. §§ 432, 433, 434(a)(4) (federal political

committee reporting and organizational requirements).

The question that is before this Court is thus not whether plaintiff can make expenditures

for the speech it proposes, nor raise money without limitation, but simply whether it must

provide disclosure of its electoral advocacy to the American public. And while plaintiff’s papers

are heavy on rhetoric, they contain virtually no legal authority supporting plaintiff’s attack on

political transparency. The omission is hardly surprising given that both the Supreme Court and

the lower courts have been overwhelmingly supportive of disclosure. Indeed, in the last three

years, the Supreme Court has twice upheld, by 8-1 votes, laws requiring disclosure of spending

in the political arena, reiterating that such “transparency” “enables the electorate to make

informed decisions and give proper weight to different speakers and messages.” Citizens United,

130 S. Ct. at 916; see also Doe v. Reed, 130 S. Ct. 2811 (2010) (upholding Washington state law

authorizing disclosure of ballot referenda petitions). Plaintiff is thus unlikely to succeed on the

merits of its challenge, and its motion for a preliminary injunction should be denied. 

First, as a threshold matter, there is no basis to plaintiff’s argument that strict scrutiny

should apply to this Court’s review of 11 C.F.R. 100.22(b) and the FEC’s policies. Plaintiff

asserts that the agency’s rule and policies govern determinations of “political committee status”

(or “PAC status”) and therefore require strict scrutiny, but concedes that political committee

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status here entails only registration, reporting and other disclosure requirements. The Supreme

Court has made clear that disclosure laws are subject not to strict scrutiny, but rather only to

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

and a ‘sufficiently important’governmental interest.” Citizen United, 130 S. Ct. at 914, quoting

Buckley v. Valeo, 424 U.S. 1, 64, 66 (1976) (internal citations omitted).

Second, plaintiff’s contention that the FEC rule defining “express advocating,”11 C.F.R.

100.22(b), is overbroad and unconstitutionally vague is contrary to all recent Supreme Court

precedent in this area. The Supreme Court has reiterated in a series of cases that Congress and

the FEC may regulate communications beyond a narrow class that constitutes “magic words”

express advocacy, and that disclosure laws in particular may be applied beyond even the

“functional equivalent of express advocacy.” McConnell v. FEC, 540 U.S. 93, 190 (2003); FEC

v. Wisconsin Right to Life (WRTL), 551 U.S. 449, 469-70 (2007); Citizen United, 130 S. Ct. at

915. 

Third, with regard to the Supreme Court standard of determining whether a group has a

“major purpose”to influence elections, plaintiff provides no legal authority for its claim that the

FEC impermissibly implements this standard by making an inquiry into vague and overbroad

factors. The Supreme Court in Buckley created the “major purpose”test to narrow the statutory

definition of “political committee,”but the Court in no way restricted the scope of the inquiry

that the FEC may make in determining a group’s “major purpose.” Buckley, 424 U.S. at 79. 

Finally, plaintiff complains about the views on the solicitation of contributions expressed

in Advisory Opinion 2012-11 Draft B,1see Complaint at Count 3 & Exhibit C, but this draft was

 1 Furthermore, even if Draft B had been adopted by the FEC and was a final agency action, this

draft uses the same standard for assessing solicitations as urged by plaintiff, i.e., a standard drawn from

FEC v. Survival Education Fund (SEF), 65 F.3d 285 (2d Cir. 1995). Compare Draft B at 17 (quoting

SEF for the principle that “[r]equests for funds that ‘clearly indicate[] that the contributions will be

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not adopted by the FEC and thus does not constitute reviewable agency action. Amici will not

address this argument in further detail as it is self-evident that plaintiff does not have standing to

challenge a draft document that has no legal effect.

ARGUMENT

I. Strict Scrutiny Is Not Applicable to This Court’s Review of Section 100.22(b) or the

FEC’s Policy for Determining Political Committee Status. 

A. The Challenged Rules All Pertain to Disclosure, and Thus Are Reviewed Under

“Exacting Scrutiny.”

Plaintiff filed suit to challenge, on an as-applied and facial basis, the FEC’s definition of

“express advocating,” see 11 C.F.R. 100.22(b), the FEC’s policy for determining political

committee status, and a draft advisory opinion pertaining to when donations given in response to

solicitations will be deemed “contributions”under FECA. Even insofar as these rules and

policies represent reviewable final agency actions, they all implement only disclosure

requirements. See 2 U.S.C. § 434(c) (reporting requirements for “independent expenditures”); 2

U.S.C. §§ 432, 433, 434(a)(4) (federal political committee reporting and organizational

requirements).

Prior to Citizens United and a decision of the D.C. Circuit Court of Appeals,

SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir. 2010), these rules had considerably broader

impact.

Section 100.22(b) previously implemented the federal restrictions on corporate

independent spending, see 2 U.S.C. § 441b. But by striking down the federal corporate spending

restrictions, Citizens United has greatly limited the scope of 11 C.F.R. 100.22(b): no longer does

 

targeted to the election or defeat of a clearly identified candidate for federal office’raise ‘contributions’

under the Act.”), with Complaint, ¶ 82 (citing SEF for the principle that “a fundraising or donation

request may fall within the reach of the FECA and constitute a solicitation ‘if it contains solicitations

clearly indicating that the contributions will be targeted to the election or defeat of a clearly identified

candidate for federal office.’”). Plaintiff’s objection to the draft opinion thus remains unclear. 

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it define the scope of “expenditures” covered by the now-invalidated corporate spending

restrictions, but rather now simply delineates which political advertisements are subject to

disclosure. 

Similarly, Section 100.22(b) and the FEC’s “major purpose” policy govern FEC

determinations of federal political committee status, and this status previously entailed

disclosure, 2 U.S.C. §§ 432, 433, 434(a)(4), as well as contribution limits, 2 U.S.C. §§

441a(a)(1), (a)(2), and restrictions on corporate and union contributions, 2 U.S.C. § 441b(a). But

in SpeechNow.org, the D.C. Circuit invalidated the federal contribution limits as applied to

federal political committees that make only independent expenditures and that do not coordinate

expenditures with candidates or political parties. 599 U.S. at 696. The FEC clarified the impact

of this decision by issuing two advisory opinions confirming that political committees that make

only independent expenditures are not bound by the federal contribution limits, and in addition,

are not subject to the corporate and union contribution source restrictions. See FEC AO 2010-09

(Club for Growth); FEC AO 2010-11 (Commonsense Ten). Today, potential “PAC status”for

independent groups such as plaintiff2 has thus lost much of its former bite. An “independent

expenditure only committee” is now subject only to disclosure requirements, including

registration, reporting and organizational obligations. 2 U.S.C. §§ 432, 433, 434(a)(4).

Despite these developments, plaintiff argues that strict scrutiny applies to this Court’s

review of its challenge to 11 C.F.R. 100.22(b) and the FEC’s “major purpose”and “solicitations”

policies. See Pl. Br. at 5-6, 27-28. But the challenged rule and policies today give rise only to

disclosure obligations, and consequently, plaintiff’s case is governed not by strict scrutiny, but

 2 Plaintiff describes itself as a group organized under Section 527 of the Internal Revenue Code, 26

U.S.C. § 527, that does not coordinate its activities with candidates or national, state, district, or local

political party committees or their agents. Complaint, at ¶¶ 10, 58.

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rather only by “‘exacting scrutiny,’which requires a ‘substantial relation’between the disclosure

requirement and a ‘sufficiently important’governmental interest.’” Citizen United, 130 S. Ct. at

914, quoting Buckley, 424 U.S. at 64, 66 (internal citations omitted). 

B. There Is No Basis for the Application of Strict Scrutiny.

Plaintiff argues that both 11 C.F.R. 100.22(b) and the FEC’s “major purpose” and

“solicitation” policies warrant strict scrutiny review because (1) they “implicate political

speech,”and (2) they impose PAC status and such status entails “severe burdens of registration

and reporting.” Pl. Br. at 5, 27. The first argument, however, is so vague as to be meaningless. 

The second argument contradicts all applicable judicial authority on the subject of disclosure,

including that of the Tenth Circuit, which has applied only exacting scrutiny to reporting and

registration requirements. 

First, the fact that the challenged regulations “implicate speech” means only that

heightened scrutiny may apply; it does not speak to what level of heightened scrutiny is

appropriate. It is the substantive requirements imposed by a law that determine the degree of

scrutiny to be applied. 

The Supreme Court applies varying standards of scrutiny in the campaign finance context

depending on the nature of the regulation and the weight of the First Amendment burdens

imposed by such regulation. Expenditure restrictions, as the most burdensome campaign finance

regulations, are subject to strict scrutiny and reviewed for whether they are “narrowly tailored”

to “further[] a compelling interest.” WRTL, 551 U.S. at 476; see also Buckley, 424 U.S. at 44-45. 

Contribution limits, by contrast, are deemed less burdensome of speech, and are constitutionally

“valid” if they “satisfy the lesser demand of being closely drawn to match a sufficiently

important interest.” McConnell, 540 U.S. at 136, quoting FEC v. Beaumont, 539 U.S. 146, 162

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(2003) (internal quotations omitted). Disclosure requirements, the “least restrictive”campaign

finance regulations, Buckley, 424 U.S at 68, are subject to “exacting scrutiny,”which requires

only that there exist a “‘relevant correlation’or ‘substantial relation’between the governmental

interest and the information required to be disclosed.” Id. at 64 (internal footnotes omitted). 

Indeed, the Supreme Court twice in 2010 reaffirmed that “exacting scrutiny”applies to political

disclosure requirements in both the sphere of campaign finance law and in the context of ballot

referenda. See Citizens United, 130 S. Ct. at 914 (“The Court has subjected [disclosure]

requirements to ‘exacting scrutiny,’... .”); Reed, 130 S. Ct. at 2818 (finding that disclosure law

relating to ballot referenda petitions was subject only to “exacting scrutiny”). Thus, because the

challenged regulation and policies here trigger only reporting and registration obligations, this

case is governed by exacting –not strict –scrutiny. 

Plaintiff also attempts to heighten the level of scrutiny here by emphasizing that the

challenged regulations impose “political committee status,”arguing that the registration and

reporting obligations entailed in political committee status warrant strict scrutiny. Pl. Br. at 27. 

But plaintiff cannot find a single case to support this proposition. All courts that have examined

political committee registration and reporting requirements following Citizens United have

eschewed strict scrutiny and instead applied the more relaxed standard of exacting scrutiny. Real

Truth About Abortion (RTAA) v. FEC, 681 F.3d 544, 549 (2012) (“[A]n intermediate level of

scrutiny known as ‘exacting scrutiny’ is the appropriate standard to apply in reviewing

provisions that impose disclosure requirements, such as the regulation and policy.”); Nat’l Org.

For Marriage v. Sec. State of Fla., 753 F. Supp. 2d 1217, 1222 (N.D. Fla. 2010) (noting that the

“Florida statutes being challenged would not prohibit NOM from engaging in its proposed

speech”and that consequently “instead of strict scrutiny, a standard known as ‘exacting scrutiny’

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applies”), aff’d 2012 WL 1758607 (11th Cir. May 17, 2012); Nat’l Org. For Marriage v. McKee,

649 F.3d 34, 56 (1st Cir. 2011) (“Because Maine’s PAC laws do not prohibit, limit, or impose

any onerous burdens on speech, but merely require the maintenance and disclosure of certain

financial information, we reject NOM’s argument that strict scrutiny should apply.”); Human

Life of Washington v. Brumsickle, 624 F.3d 990, 1005 (9th Cir. 2010) (noting that Citizens

United and Reed decisions “have eliminated the apparent confusion as to the standard of review

applicable in disclosure cases”by confirming that “a campaign finance disclosure requirement is

constitutional if it survives exacting scrutiny, meaning that it is substantially related to a

sufficiently important governmental interest.”); see also Iowa Right to Life Committee, Inc.

(IRTL) v. Tooker, 795 F. Supp. 2d 852, 863-84 (S.D. Iowa 2011); Yamada v. Kuramoto, 2010

WL 4603936, *11 (D. Haw. Oct. 29, 2010). 

Nor do the cases cited by plaintiff from this Circuit support the application of strict

scrutiny. To the contrary, New Mexico Youth Organized (NMYO) v. Herrera, 611 F.3d 669, 676

(10th Cir. 2010), makes clear that regulations that “require disclosure,” in contrast to

“regulations that limit the amount of speech a group may undertake,”must pass only “exacting

scrutiny.”

To be sure, PAC status for independent groups entailed more restrictive regulations and

these regulations may have warranted more stringent review than “exacting scrutiny.” As

discussed in Section I.A. supra, prior to recent judicial decisions, an “independent expenditure

only committee” was subject not only to disclosure requirements, 2 U.S.C. §§ 432, 433,

434(a)(4), but also to contribution limits, 2 U.S.C. §§ 441a(a)(1), (2), and source prohibitions, 2

U.S.C. § 441b(a). Corporate and union PACs were subject to additional restrictions, including a

prohibition on the use of treasury funds to finance either political contributions or independent

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expenditures, 2 U.S.C. § 441b(b)(2), and restrictions on the class of individuals that the corporate

or union parent could solicit for contributions, 2 U.S.C. § 441b(b)(4). Thus, it is unremarkable

that earlier cases such as FEC v. Massachusetts Citizens for Life, 479 U.S. 238 (1986) and

Citizens United noted that political committee status “impose[d] administrative costs.” See Pl.

Br. at 30-31, quoting MCFL, 479 U.S. at 254–55; Citizens United, 130 S. Ct. at 898. 

Establishment of a corporate PAC in those cases was a highly-regulated alternative to an

absolute prohibition on corporate spending. But now, by contrast, “political committee status”

entails nothing more than registration and reporting. Because the applicable standard of scrutiny

turns on the nature of the specific political committee regulation at issue, here “PAC status”

warrants only exacting scrutiny.

This principle is well illustrated by the D.C. Circuit’s decision in SpeechNow.org v. FEC. 

There, the Court of Appeals reviewed both the contribution limits connected to federal political

committee status, and the registration, reporting and organizational requirements connected to

such status. It struck down the contribution limits as applied to “independent expenditure only

committees”after reviewing such limits under the “closely drawn”level of scrutiny appropriate

for contribution limits. 599 F.3d at 692 (noting that contribution limits must be “closely drawn

to serve a sufficiently important interest”) (citing Davis v. FEC, 128 S. Ct. 2759, 2772 n.7

(2008)). By contrast, the Court of Appeals upheld the political committee disclosure

requirements under a more relaxed standard, stating that “the government may point to any

‘sufficiently important’ governmental interest that bears a ‘substantial relation’” to the

requirements.” Id. at 696. The appropriate standard of scrutiny thus turned on the nature of the

substantive regulation associated with political committee status.

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This was also the approach of the Fourth Circuit Court of Appeals in RTAA, which

applied exacting scrutiny to the same regulations as challenged in this case. The Court

recognized that Section 100.22(b) and the Commission’s “major purpose”policy effected only

disclosure requirements and that “disclosure and organizational requirements . . . are not as

burdensome on speech as are limits imposed on campaign activities or limits imposed on

contributions to and expenditures by campaigns.” 681 F.3d at 548; see also id. at 552, n.3 It

acknowledged that the Supreme Court in Citizens United had “used the word ‘onerous’in

describing certain PAC-style obligations and restrictions”but noted that “it did so in a context

significantly different than that facing RTAA.” Id. at 549. It highlighted, for example, that the

law invalidated in Citizens United, 2 U.S.C. § 441b, required corporations to set up a separate

PAC with segregated funds to make expenditures, and that these funds were “subject to several

limitations on allowable contributions, including a prohibition on the acceptance of funds from

the corporation itself.” Id. Because PAC status for RTAA entailed none of these burdens –and,

like this case, involved only reporting and registration –Citizens United was inapplicable, and

the Court of Appeals applied only exacting scrutiny. Id. 

This Court should follow the clear guidance of Buckley, Citizens United and recent lower

court decisions and apply exacting scrutiny to the challenged law.

II. The Definition of “Expressly Advocating” at Section 100.22(b) Is

Indistinguishable From the WRTL “Functional Equivalent” Test and Is

Constitutional.

Plaintiff claims that the so-called “subpart (b)” definition of express advocacy is

unconstitutionally vague and overbroad, suggesting that “express advocacy” cannot extend

beyond “magic words.” Pl. Br. at 11-27. However, this stance flies in the face of all recent

Supreme Court precedent. 

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In McConnell, the Supreme Court cast doubt on the functionality of the “magic words”

construction of “express advocacy.” 540 U.S. at 193. WRTL made clear that the state may

regulate not only “magic words”express advocacy, but also the “functional equivalent of express

advocacy,”and articulated a test for the latter that is virtually identical with subpart (b). WRTL,

551 U.S. at 474 n.7. Citizens United cast further doubt on the “magic words”test by finding that

a communication need not constitute express advocacy –or even the functional equivalent of

express advocacy –to be regulable under the federal “electioneering communications”disclosure

requirements. 130 S. Ct. at 915. Thus, all three cases contradict plaintiff’s suggestion that the

FEC can only regulate “magic words” express advocacy and strongly support the

constitutionality of the subpart (b) test definition of express advocacy.

Finally, arguments almost identical to those asserted by plaintiff have been rejected by

the Fourth and Eleventh Circuits; both Courts of Appeals recognized that the WRTL test –and

disclosure laws based on this test –are neither vague nor overbroad, but rather are consistent

with all recent Supreme Court precedent.

A. The Constitutionality of the Subpart (b) Definition of “Expressly

Advocating”Is Supported by McConnell, WRTL and Citizens United.

The debate over the role and scope of the “express advocacy”standard dates back to

FECA’s enactment. An expenditure limit originally included in FECA provided that “[n]o

person may make any expenditure ... relative to a clearly identified candidate during a calendar

year which, when added to all other expenditures made by such person during the year

advocating the election or defeat of such candidate, exceeds $1,000.” Buckley, 424 U.S. at 39. 

The Buckley Court was troubled by the vagueness of the phrase “relative to a clearly identified

candidate,”and consequently construed the “relative to”phrase to “apply only to expenditures

for communications that in express terms advocate the election or defeat of a clearly identified

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candidate for federal office.” Id. at 44 (emphasis added). The Court explained in a footnote that

“[t]his construction would restrict the application of [the spending limit] to communications

containing express words of advocacy of election or defeat, such as ‘vote for,’‘elect,’‘support,’

‘cast your ballot for,’‘Smith for Congress,’‘vote against,’‘defeat,’‘reject.’” Id. at 44 n.52. 

These phrases became known as the “magic words”of express advocacy.

More than a decade after Buckley, the Ninth Circuit in FEC v. Furgatch, 807 F.2d 857

(9th Cir. 1987), concluded that, “[S]peech need not include any of the words listed in Buckley to

be express advocacy under the Act, but it must, when read as a whole, and with limited reference

to external events, be susceptible of no other reasonable interpretation but as an exhortation to

vote for or against a specific candidate.” Id. at 864 (emphasis added).

In 1995, the FEC codified this Furgatch test in subpart (b) of its regulation defining

“expressly advocating.” Section 100.22(b) of the FEC’s regulations provides that “expressly

advocating”means any communication that:

When taken as a whole and with limited reference to external events, such as the

proximity to the election, could only be interpreted by a reasonable person as

containing advocacy of the election or defeat of one or more clearly identified

candidate(s) because—

(1) The electoral portion of the communication is unmistakable, unambiguous,

and suggestive of only one meaning; and

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

or defeat one or more clearly identified candidate(s) or encourages some other

kind of action.

11 C.F.R. § 100.22(b) (emphasis added).

In the time period following the adoption of this rule but prior to the Supreme Court’s

decisions in McConnell and WRTL, the courts of a few jurisdictions outside the Ninth Circuit

expressed doubts as to the constitutionality of this formulation of express advocacy. All of the

cases plaintiff cites in support of its argument are drawn from this period. See Pl. Br. at 10,

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citing Right to Life of Duchess Co., Inc. v. FEC, 6 F. Supp. 2d 248 (S.D.N.Y. 1998); Maine Right

to Life Cmte. v. FEC, 914 F. Supp. 8, 13 (D. Maine 1996), aff’d per curiam, 98 F.3d 1 (1st Cir.

1996), cert. denied, 522 U.S. 810 (1997); FEC v. Christian Coalition, 52 F. Supp. 2d 45 (D.D.C.

1999). But plaintiff fails to acknowledge that the Supreme Court in McConnell and WRTL

revised its analysis of “express advocacy,”effectively overturning the cases cited by plaintiff. 

Both McConnell and WRTL confirm that the First Amendment does not limit the scope of

campaign finance regulation to “magic words,”but rather allows regulation of a broader category

of speech consisting of the “functional equivalent of express advocacy,” and thus strongly

support the constitutionality of subpart (b).

First, in McConnell, the Supreme Court explained that Buckley’s express advocacy test

was merely an “endpoint of statutory interpretation, not a first principle of constitutional law.” 

540 U.S. at 190. The Court reached this conclusion in its review of Title II of the Bipartisan

Campaign Reform Act of 2002 (BCRA), which prohibited the use of corporate or union treasury

funds to pay for an “electioneering communication”–defined as any broadcast ad that refers to a

clearly identified federal candidate, is targeted to the candidate’s electorate and is aired within 30

days of a primary or 60 days of a general election. 2 U.S.C. §§ 434(f)(3), 441b(b)(2). These

provisions were challenged on grounds that they regulated “‘communications’that do not meet

Buckley’s [magic words] definition of express advocacy.” 540 U.S. at 190. The Court rejected

this assertion, however, making clear that “the express advocacy limitation ... was the product of

statutory interpretation rather than a constitutional command.” Id. at 191-92. The Court

concluded that “the unmistakable lesson from the record in this litigation . . . is that Buckley’s

magic-words requirement is functionally meaningless[,]”and “has not aided the legislative effort

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to combat real or apparent corruption.” Id. at 193-94 (emphasis added). Accordingly, the Court

upheld BCRA’s “electioneering communication”funding provisions against a facial challenge.

In WRTL, the Court re-visited Title II of BCRA in the context of a challenge to the

“electioneering communication”provisions as applied to three broadcast ads that WRTL wished

to air. Chief Justice Roberts, writing the controlling opinion for the Court, interpreted

McConnell as upholding the Title II funding restrictions only insofar as “electioneering

communications”contained either express advocacy or “the functional equivalent of express

advocacy.” 551 U.S. at 469-70. As to the latter category, “a court should find that an ad is the

functional equivalent of express advocacy only if the ad is susceptible of no reasonable

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

added). Applying this test, the Court held that WRTL’s ads were not the functional equivalent of

express advocacy and accordingly were exempt from the funding restriction. Id. at 476.

WRTL’s “functional equivalent”test closely correlates to the FEC’s subpart (b) standard

for express advocacy. Under WRTL, an ad constitutes the functional equivalent of express

advocacy if it is “susceptible of no reasonable interpretation other than as an appeal to vote for or

against a specific candidate”; under subpart (b), an ad constitutes express advocacy if it “could

only be interpreted by a reasonable person as containing advocacy of the election or defeat of

one or more clearly identified candidate(s)” There is no legal or practical difference between

these tests.

Further, Chief Justice Roberts in WRTL specifically addressed the argument asserted by

plaintiff here that the “functional equivalent”test is unconstitutionally vague because it does not

incorporate a “magic words”standard. 551 U.S. at 474 n.7. The Chief Justice explained that the

“magic words”standard of express advocacy formulated in Buckley is not “the constitutional

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standard for clarity . . . in the abstract, divorced from specific statutory language,”and the

standard “does not dictate a constitutional test.” Id. In light of Justice Robert’s strong

affirmation of his “functional equivalent”test, the fact that FEC did not “issue a conclusive

opinion”on some of plaintiff’s proposed ads in the advisory opinion process is immaterial. Pl.

Br. at 23. The FEC’s partial deadlock cannot render a test endorsed by the Supreme Court

unconstitutionally vague. As noted by the Fourth Circuit, some degree of disagreement over

application of the subpart (b) test “is simply inherent in any kind of standards-based test.” 

RTAA, 681 F.3d at 554. See also Sec. State of Fla., 753 F.Supp.2d at 1221 (“The fact that it may

be difficult in some cases to determine whether these clear requirements have been met does not

mean that the statute is void for vagueness.”) (internal quotations omitted).

And even insofar as subpart (b) definition includes “limited reference to external events,”

see Pl. Br. at 13, the WRTL Court made clear that courts “need not ignore basic background

information that may be necessary to put an ad in context –such as whether an ad describes a

legislative issue that is either currently the subject of legislative scrutiny or likely to be the

subject of such scrutiny in the near future[.]” 551 U.S. at 474 (internal quotations omitted). In

keeping with this directive, consideration of context is permitted, but greatly limited, under the

subpart (b) test (“with limited reference to external events”). Thus, contrary to plaintiff’s claims,

Section 100.22(b)’s reference to “external events” does not broaden the rule beyond Chief

Justice Roberts’s test. 

Finally, Citizens United reaffirmed the constitutionality of the WRTL test. There, the

Supreme Court again reviewed the corporate funding restriction of Title II of BCRA, and in a 5-

4 opinion, struck down the federal prohibition on corporate expenditures in its entirety, see 2

U.S.C. § 441b. 130 S. Ct. at 913. Far from questioning the validity of the WRTL “functional

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equivalent”test, the Supreme Court actually applied WRTL’s test to the communications at issue

in Citizens United to determine whether they would be prohibited by 2 U.S.C. § 441b; only

because it found that the communications would be prohibited, did the Court then proceed to

consider the constitutionality of that prohibition.3

 See RTAA, 681 F.3d at 551 (noting that by

“[u]sing Wisconsin Right to Life’s ‘functional equivalent’test”the Court concluded that Hillary:

The Movie “qualified as the functional equivalent of express advocacy”) (emphasis added). 

The Citizens United Court also consigned the “magic words” standard for “express

advocacy”to further irrelevance. In an 8-1 opinion, the Court upheld the federal disclaimer and

disclosure requirements applicable to all “electioneering communications.” 130 S. Ct. at 914. In

so holding, the Court “reject[ed] Citizens United’s contention that the disclosure requirements

must be limited to speech that is the functional equivalent of express advocacy.” Id. at 915. 

Otherwise expressed, the Supreme Court not only rejected the “magic words”standard when

delineating the constitutionally permissible scope of disclosure, but also found that disclosure

could extend beyond speech that was the “functional equivalent of express advocacy.” Id. See

also Human Life, 624 F.3d at 1016 (“Given the Court’s analysis in Citizens United, and its

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

disclosure requirements cannot constitutionally reach issue advocacy is unsupportable.”). The

Citizens United decision thus directly contradicts plaintiff’s argument that the subpart (b)

definition is overbroad with respect to disclosure. 

 3 The Supreme Court applied the WRTL test to Citizens United’s film, Hillary: The Movie, to

determine how broadly the Court would have to rule in order to decide the case. Had Hillary not met

WRTL’s test for the “functional equivalent of express advocacy,”then the film would not have been

prohibited by 2 U.S.C. § 441b, and the case could have been resolved on these “narrower grounds.” 130

S. Ct. at 888. The Court ultimately found that “under the standard stated in McConnell and further

elaborated in WRTL, the film qualifies as the functional equivalent of express advocacy,”id. at 890, and

thereby considered itself bound to consider the broader question of “whether Austin should be overruled.” 

Id. at 888. The fact that the Citizens United Court applied the WRTL test without difficulty, however,

belies plaintiff’s argument that this test is unconstitutionally vague or unworkable. 

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In short, since the lower court decisions cited by plaintiff were decided, new Supreme

Court case law –including McConnell, WRTL and Citizens United –has in effect overruled those

decisions. McConnell made clear that the “magic words” standard was “functionally

meaningless.” 540 U.S. at 190. WRTL made clear that the state may regulate not only “magic

words” express advocacy, but also the functional equivalent of express advocacy, which it

defined in a manner that closely tracked the language of subpart (b). Finally, Citizens United

declared that for the purposes of disclosure, regulation can extend even beyond communications

that meet the WRTL test for the “functional equivalent of express advocacy.” All three cases

thus strongly support the constitutionality of subpart (b), and indeed suggest that disclosurerelated regulation may sweep yet more broadly.

B. Lower Court Decisions Following Citizens United Have Recognized the

Validity of WRTL’s Test for the Functional Equivalent of Express Advocacy.

Following the Supreme Court’s decision in WRTL and Citizens United, multiple lower

courts have upheld laws based on WRTL’s “functional equivalent”test. Plaintiff offers no

authority to the contrary.

Indeed, plaintiff acknowledges that the Fourth Circuit in RTAA rejected a challenge to

Section 100.22(b) that is virtually identical to the one plaintiff brings here. In RTAA, the Court

of Appeals held that the subpart (b) definition of express advocacy was neither vague nor

overbroad according to recent Supreme Court decisions in McConnell, WRTL and Citizens

United. It dismissed RTAA’s overbreadth argument on grounds that the McConnell Court held

that “Congress could permissibly regulate not only communications containing the ‘magic

words’of Buckley, but also communications that were ‘the functional equivalent’of express

advocacy.’” 681 F.3d at 550-51. The Court further found that Citizens United also suggested

that the subpart (b) test was not overbroad, noting that the Supreme Court there actually held that

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disclosure regulations could extend beyond the functional equivalent of express advocacy to

include some issue speech. Id. at 551. The Court also rejected RTAA’s vagueness argument,

highlighting that in WRTL, the Supreme Court’s formulated a test for the “functional equivalent

of express advocacy”that is “consistent”with the “language of § 100.22(b).” Id. at 552.4

 

Similarly, the Eleventh Circuit Court of Appeals recently upheld Florida’s electioneering

communications disclosure statute which incorporates WRTL’s test for the “functional equivalent

of express advocacy.” National Organization for Marriage Inc. v. Sec. State of Fla., 753 F.

Supp. 2d 1217 (N.D. Fla. 2010), aff’d 2012 WL 1758607 (11th Cir. May 17, 2012). The plaintiff

there had challenged the state’s definition of “electioneering communications”on grounds that

its inclusion of language drawn from the WRTL test rendered it vague and overbroad. See FLA.

STAT. § 106.011(18) (defining “electioneering communications”as a communication that, inter

alia, refers to “a clearly identified candidate for office without expressly advocating the election

or defeat of a candidate but that is susceptible of no reasonable interpretation other than an

appeal to vote for or against a specific candidate”) (emphasis added). The district court

disagreed, holding that the language included in Florida’s statute “provides an objective standard

that was created and applied by the United States Supreme Court”in WRTL. 753 F. Supp. 2d at

1221. The Court also rejected plaintiff’s argument that Citizens United cast doubt on the validity

of the WRTL test, finding that “[f]ar from overruling WRTL, the Court [in Citizens United]

embraced a straight forward application of the appeal to vote test.” Id. at 1220.

The Tenth Circuit cases that plaintiff cites do not hold to the contrary. Both cases instead

ruled on a different issue, namely the constitutionality of a statutory definition of “political

 4 In Center for Individual Freedom, Inc. (CIF) v. Tennant, --- F.Supp.2d ----, 2011 WL 2912735

(S.D.W. Va. July 18, 2011), a West Virginia district court found WRTL’s “functional equivalent”test

vague. Id. at *21. However, this decision predated the Fourth Circuit’s RTAA decision, which controls

and would seem to effectively overrule CIF. 

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committee”that used a monetary spending threshold as a substitute for a more traditional “major

purpose”test. See Pl. Br. at 18-19, citing Colorado Right to Life Comm., Inc. (CRTL) v.

Coffman, 498 F.3d 1137, 1152 (10th Cir. 2007) and NMYO, 611 F.3d 669. First, in CRTL, the

Court of Appeals struck down Colorado’s statutory definition of “political committee”on an asapplied basis because it relied on a $200 monetary threshold as a proxy for a group’s major

purpose. See 498 F.3d at 1141, citing Colo. Const. art. XXVIII, § 2(12)(a) (defining political

committee as “any person, other than a natural person, or any group of two or more persons,

including natural persons that have accepted or made contributions or expenditures in excess of

$200 to support or oppose the nomination or election of one or more candidate”); id. at 1154. 

NMYO similarly considered and rejected a state statute that used a $500 spending threshold as a

proxy for the “major purpose”test. 611 F.3d at 677-78. 

While both CRTL and NMYO support the use of a “major purpose”test as a prerequisite

for political committee status, neither case even considered the definition of express advocacy,

much less suggested that the WRTL test was constitutionally suspect. Indeed, insofar as the issue

arose at all, the Tenth Circuit indicated that speech that was the “functional equivalent of express

advocacy for the election or defeat of a specific candidate is unambiguously related to the

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

NMYO, 611 F.3d at 676 (emphasis added). Thus, contrary to plaintiff’s argument, the Tenth

Circuit appears to be in accord with other appellate decisions that have upheld WRTL’s test for

the “functional equivalent of express advocacy”–and by extension, the subpart (b) test for the

same.

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III. The FEC’s Methodology for Determining a Group’s “Major Purpose” Is

Constitutional.

Plaintiff also challenges the FEC’s “case-by-case approach to determining political

committee status”and its use of a “host of elusive factors”to implement the “major purpose”

test. Pl. Br. at 33, 34. The FEC, however, is simply using the standard established by the

Supreme Court to determine a group’s “major purpose”and evaluating factors identified as

relevant by the courts to this analysis. Plaintiff fails to identify any actual constitutional defects

in this methodology.

The so-called “major purpose”test was first articulated by the Supreme Court in Buckley

in its analysis of FECA’s disclosure requirements. 424 U.S. at 78-81. FECA established

disclosure requirements both for individuals and for “political committees,”prompting the Court

to address constitutional concerns that the statutory definition of the term “political committee”

was overbroad and, to the extent it incorporated the definition of “expenditure,”vague as well. 

The Court feared that because the term “expenditure”potentially “encompass[ed] both issue

discussion and advocacy of a political result,”the “political committee”definition (which relies

on the definition of “expenditure”) might “reach groups engaged purely in issue discussion.” Id.

at 79.

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

committee”to only “encompass organizations that are under the control of a candidate or the

major purpose of which is the nomination or election of a candidate.” Id. (emphasis added). For

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

of “expenditure”because, the Court held, “expenditures”by such groups “are, by definition,

campaign related.” Id. (emphasis added). 

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In MCFL, the Court expressed the “major purpose” test in slightly different terms,

describing political committees as “those groups whose primary objective is to influence political

campaigns.” 479 U.S. at 262 (emphasis added). The Court in McConnell restated the “major

purpose”test for political committee status as articulated by Buckley. 540 U.S. at 170 n.64.

Plaintiff argues that the FEC’s implementation of the “major purpose”test, as set forth in

its most recent statement on the question, see FEC Notice 2007-3, “Political Committee Status,”

72 Fed. Reg. 5595 (Feb. 7, 2007), relies upon an impermissible “case-by-case”approach. It

provides no legal authority to support its argument, however, beyond a snippet drawn out-ofcontext from Citizens United. See Pl. Br. at 32, citing 130 S. Ct. at 32 (“We decline to adopt an

interpretation that requires intricate case-by-case determinations to verify whether political

speech is banned.”). But this language does not purport to set forth a general rule forbidding a

case-by-case approach in the entire area of campaign finance –and plaintiff does not seriously

suggest as much. Furthermore, even insofar as the Supreme Court declined to endorse a case-bycase approach in Citizens United, that case concerned an expenditure ban, the most onerous of

campaign finance regulations. The Supreme Court made no suggestion that a case-by-case

approach was in any way suspect in a different context, such as to implement the far less

restrictive disclosure regulations at issue here.

Plaintiff also complains that the FEC conducts a “vague and overbroad”inquiry into

impermissible factors when determining a group’s major purpose, objecting to the analysis of,

for instance, the “timing of an organization’s formation” or the “geographic targeting of

advertisements.” Pl. Br. at 34. While plaintiff never articulates the constitutional defect in a

multi-factor major purpose analysis, it implies that the Supreme Court allows only the review of

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a group’s expenditures for express advocacy communications in this analysis. Id. at 33 (claiming

that MCFL Court “specifically tied the definition of express advocacy to major purpose”).

But this is a limitation that plaintiff simply makes up. It cites MCFL as support, but this

case contained no such restrictions on the major purpose inquiry. 479 U.S. at 262. The test set

forth in Supreme Court precedent is whether a group’s “major purpose”or “primary objective”is

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

campaigns.” Buckley, 424 U.S. at 78-81; MCFL, 479 U.S. at 262.

Nor has this Circuit endorsed the highly circumscribed major purpose inquiry that

plaintiff urges. See Pl. Br. at 27 (arguing that the Tenth Circuit has “consistently demanded strict

protection against intrusive political committee registration and reporting requirements”). Both

CRTL and NMYO focused on whether a “major purpose”test was required to be included in a

definition of “political committee,”not how the major purpose test should be implemented. 

Insofar as the cases touched upon the determination of a group’s major purpose, they suggested

two methods for such a determination: (1) “examination of the organization’s central

organizational purpose”; or (2) “comparison of the organization’s independent spending with

overall spending to determine whether the preponderance of expenditures are for express

advocacy or contributions to candidates.” CRTL, 498 F.3d at 1152 (citing MCFL, 479 U.S. at

252, 262);5 NMYO, 611 F.3d at 678. Neither approach constricts the analysis of major purpose

 5 Although the scope of CRTL’s two methods for “major purpose”determinations is somewhat

unclear, amici note that the CRTL Court’s reliance on MCFL as the basis for its methodology is

misplaced. 498 F.3d at 1152. The CRTL Court highlighted two passages in MCFL: first, the Supreme

Court’s statement that MCFL’s “central organizational purpose [wa]s issue advocacy,”MCFL, 479 U.S.

at 252 n.6, and second, its statement that “if MCFL’s independent spending become so extensive that the

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

as a political committee,”id. at 262. But the first statement was merely a description of MCFL in dicta:

MCFL’s “central purpose”was not in dispute in the litigation, id. at 252 n.6. With respect to the second

statement, as the Fourth Circuit points out, the MCFL Court “indicates that the amount of independent

spending is a relevant factor in determining PAC status, but it does not imply that the Commission may

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to only an examination of a group’s express advocacy spending as plaintiff demands. To the

contrary, “an examination of the organization’s central organizational purpose”would appear to

potentially allow a even broader inquiry than the FEC’s approach that plaintiff decries here.

Plaintiff also ignores the fact that every court to have specifically considered the FEC’s

case-by-case, multi-factor approach has upheld it as constitutional. In Shays v. FEC, 511 F.

Supp. 2d 19 (D.D.C. 2007), the plaintiff sought a judicial determination requiring the FEC to

issue a regulation governing when “527 organizations”would be deemed political committees. 

The FEC defended its decision to not adopt a regulation but, instead, to make political committee

status determinations through enforcement actions, arguing that the major purpose doctrine

“requires the flexibility of a case-by-case analysis of an organization’s conduct,” including

“whether there is sufficiently extensive spending on federal campaign activity,”“the content of

[a group’s] public statements,”“internal statements of the organization,”“all manner of the

organization’s spending”and “the organization’s fundraising appeals.” Id. See also FEC v.

Malenick, 310 F. Supp. 2d. 230, 234 (D.D.C. 2004), quoting FEC v. GOPAC, 917 F. Supp. 851,

859 (D.D.C. 1996) (“An organization’s purpose may be evidenced by its public statements of its

purpose or by other means, such as its expenditures in cash or in kind to or for the benefit of a

particular candidate or candidates.”). The district court approved the FEC’s approach, noting

that “Buckley established the major purpose test, but did not describe its application in any

fashion.” Id.

More recently, the Fourth Circuit upheld the FEC’s case-by case method for political

committee determinations in RTAA. It found that “[a]lthough Buckley did create the major

purpose test, it did not mandate a particular methodology for determining an organization’s

 

only consider spending.” RTAA, 681 F.3d at 557. Thus neither passage from MCFL highlighted by the

CRTL Court purported to set forth a particular methodology for the major purpose inquiry, and the CRTL

Court had no grounds to characterize such passages as authoritative in terms of the major purpose test.

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major purpose.” 681 F.3d at 556. It went on to note that “the necessity of a contextual inquiry is

supported by judicial decisions applying the major purpose test, which have used the same factintensive analysis that the Commission has adopted.” Id. at 557, citing FEC v. Malenick, 310 F.

Supp. at 234–37; GOPAC, 917 F. Supp. at 859, 864–66. The Court of Appeals concluded that

the FEC had “adopted a sensible approach to determining whether an organization qualifies for

PAC status,”id. at 558, highlighting that “[t]he determination of whether the election or defeat of

federal candidates for office is the major purpose of an organization, and not simply a major

purpose, is inherently a comparative task, and in most instances it will require weighing the

importance of some of a group’s activities against others,”id. at 556. 

In short, the Supreme Court in Buckley added the “major purpose” test to narrow

statutory definition of “political committee.” But neither the Supreme Court nor any lower court

has constricted the scope of the inquiry that the FEC is to use in making a “major purpose”

determination as narrowly as plaintiff apparently demands. This Court should therefore reject

plaintiff’s challenge to the FEC’s “major purpose” policy, and deny plantiff’s motion for

preliminary injunction.

CONCLUSION

For the foregoing reasons, the challenged rule, see 11 C.F.R. 100.22(b), the FEC’s

implementation of the “major purpose” test for political committee status and Draft B of

Advisory Opinion 2012-11 do not violate the First Amendment. Accordingly, this Court should

deny plaintiff’s motion for preliminary injunction.

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Respectfully submitted,

 /s/ Larry B. Jones

Larry B. Jones

(WSB # 5-1847)

SIMPSON, KEPLER & EDWARDS, LLC

The Cody, Wyoming Division of

BURG SIMPSON ELDREDGE HERSH & 

JARDINE, P.C.

1135 14th Street

P.O. Box 490

Cody, WY 82414

ljones@skelaw.com

Tel.: (307) 527-7891

Fax: (307) 527-7897

*Counsel of Record

J. Gerald Hebert

(VA Bar No. 38432)

Tara Malloy

(DC Bar No. 988280)

Paul S. Ryan

(DC Bar No. 502514)

THE CAMPAIGN LEGAL CENTER

215 E Street, NE

Washington, DC 20002

Tel.: (202) 736-2200

Fax: (202) 236-2222

Donald J. Simon

(DC Bar No. 256388)

SONOSKY, CHAMBERS, SACHSE

ENDRESON & PERRY, LLP

1425 K Street, NW, Suite 600

Washington, D.C. 20005

Tel.: (202) 682-0240

Fax: (202) 682-0249

Fred Wertheimer,

(DC Bar No. 154211)

DEMOCRACY 21

2000 Massachusetts Avenue, NW

Washington, D.C. 20036

Tel.: (202) 429-2008

Fax: (202) 355-9606

Case 2:12-cv-00127-SWS Document 27-2 Filed 08/10/12 Page 29 of 32
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Counsel for Amici Curiae

Dated: August 10, 2012

Case 2:12-cv-00127-SWS Document 27-2 Filed 08/10/12 Page 30 of 32
1

CERTIFICATE OF SERVICE

I certify that on August 10, 2012, I electronically filed a copy of the foregoing document

using the CM/ECF system, which will then send a notification of such filing on the following

counsel of record at the listed e-mail addresses:

John B. Speight,

 jbspeight@gmail.com

4021 Snyder

Cheyenne, WY 82001

Stephen R. Klein,

 stephen.klein@wyliberty.org

WYOMING LIBERTY GROUP

1902 Thomes Avenue, Suite 201

Cheyenne, WY 82001

Benjamin T. Barr,

 benjamin.barr@gmail.com

10737 Hunting Lane

Rockville, MD 20850

Counsel for Plaintiff

Anthony Herman,

 aherman@fec.gov

David B Kolker,

 dkolker@fec.gov

Erin R Chlopak,

 echlopak@fec.gov

Lisa J Stevenson,

 lstevenson@fec.gov

FEDERAL ELECTION COMMISSION

999 E Street, NW

Washington, DC 20463-0000

Nicholas Vassallo,

 nick.vassallo@usdoj.gov

US ATTORNEY'S OFFICE

P O Box 668

Cheyenne, WY 82003-0668

Counsel for Defendant

Case 2:12-cv-00127-SWS Document 27-2 Filed 08/10/12 Page 31 of 32
2

I further certify that courtesy copies of the brief were sent to the above counsel on

August 10, 2012 via email (where email addresses were available and known).

 /s/ Larry B. Jones

Larry B. Jones

(WSB # 5-1847)

SIMPSON, KEPLER & EDWARDS, LLC,

The Cody, Wyoming Division of

BURG SIMPSON ELDREDGE HERSH &

JARDINE, P.C.

1135 14th Street

P.O. Box 490

Cody, WY 82414

Dated: August 10, 2012

Case 2:12-cv-00127-SWS Document 27-2 Filed 08/10/12 Page 32 of 32