UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF VIRGINIA 

ALEXANDRIA DIVISION 

____________________________________ 

 ) 

THE HISPANIC LEADERSHIP ) 

FUND, INC. ) 

) 

 Plaintiff, ) 

) Case No. 1:12-CV-893-TSE-TRJ 

v. ) 

) 

FEDERAL ELECTION COMMISSION, ) 

) 

 Defendant. ) 

____________________________________) 

MEMORANDUM OF CAMPAIGN LEGAL CENTER AS AMICUS CURIAE IN 

SUPPORT OF THE FEDERAL ELECTION COMMISSION 

J. Gerald Hebert 

(VA Bar No. 38432) 

Paul S. Ryan 

(DC Bar No. 502514) 

Tara Malloy 

(DC Bar No. 988280) 

Megan McAllen 

(Cal. Bar No. 281830) 

THE CAMPAIGN LEGAL CENTER

215 E Street, NE 

Washington, DC 20002 

Tel.: (202) 736-2200 

Counsel for Amicus Curiae 

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FINANICAL INTEREST DISCLOSURE STATEMENT 

Pursuant to LCvR 7.1(A), amicus Campaign Legal Center (CLC) states that it has 

no parent, subsidiary, or affiliated entities (corporate or otherwise) that have issued stock 

or debt securities to the public; no publicly held entity (corporate or otherwise) owns 10% 

or more of its stock. CLC has nothing to report under LCvR 7.1(A)(1)(a).

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TABLE OF CONTENTS 

FINANCIAL INTEREST DISCLOSURE STATEMENT ....................................................... ii

TABLE OF AUTHORITIES ...................................................................................................... iv 

INTEREST OF AMICUS CURIAE ..............................................................................................1

INTRODUCTION & SUMMARY OF ARGUMENT ................................................................1 

ARGUMENT ..................................................................................................................................3 

I. Disclosure Laws Are A “Cornerstone” To Effective Campaign 

Finance Regulation And Represent The “Least Restrictive” Means Of 

Preventing Corruption And Maintaining A Well-Informed Electorate .................3

CONCLUSION. .............................................................................................................................8 

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TABLE OF AUTHORITIES 

Cases: 

Buckley v. Am. Const. Law Found., 525 U.S. 182 (1999) ...............................................................3

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

Burroughs v. U.S., 290 U.S. 534 (1934) ..........................................................................................3

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

Communist Party v. Subversive Activities Control Bd., 367 U.S. 1 (1961) .....................................5

Davis v. FEC, 554 U.S. 724 (2008) .................................................................................................4

Doe v. Reed, 130 S. Ct. 2811 (2010) ...........................................................................................4, 8 

FEC v. Beaumont, 539 U.S. 146 (2003) ..........................................................................................4

FEC v. Colo. Republican Fed. Campaign Comm., 533 U.S. 431 (2001) ........................................8

FEC v. Wisconsin Right to Life, 551 U.S. 449 (2007) .....................................................................4

Grosjean v. American Press Co., 297 U.S. 233 (1936) ...................................................................3

Human Life of Wash. v. Brumsickle, 624 F.3d 990 (9th Cir. 2010) .................................................7

McConnell v. FEC, 540 U.S. 93 (2003) ...................................................................................4, 6, 8

McConnell v. FEC, 251 F. Supp. 2d 176 (D.D.C. 2003) .................................................................6

U.S. v. Harriss, 347 U.S. 612 (1954) ...............................................................................................7 

Statutes and Regulations: 

2 U.S.C. § 431(18) .......................................................................................................................3, 9 

2 U.S.C. § 434(f) ......................................................................................................................3, 6, 9 

Administrative Rules and Materials: 

11 C.F.R. § 100.17 .......................................................................................................................3, 9 

11 C.F.R. § 100.29 .......................................................................................................................3, 9 

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Miscellaneous Resources:

Center for Responsive Politics, Outside Spending, 

http://www.opensecrets.org/outsidespending/index.php (last visited Aug. 

27, 2012) ..............................................................................................................................2 

Justice Stephen Breyer, Madison Lecture: Our Democratic Constitution, 77 

N.Y.U. L. Rev. 245 (2002) ..................................................................................................5 

Louis Brandeis, Other People’s Money (Nat’l Home Library Found. ed. 1933) ............................2 

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INTEREST OF AMICUS CURIAE 

Amicus curiae Campaign Legal Center (CLC) is a nonpartisan, nonprofit organization 

that works in the area of campaign finance law, and participates in state and federal court 

litigation throughout the nation regarding contribution limits, disclosure, political advertising, 

enforcement issues, and other campaign finance matters. CLC also participates in rulemaking 

and advisory opinion proceedings at the Federal Election Commission (FEC) to ensure that the 

agency is properly enforcing federal election laws and files complaints with the FEC requesting 

that enforcement actions be taken against individuals or organizations that violate the law. The 

CLC filed written comments with the FEC in the American Future Fund advisory opinion 

proceeding referred to repeatedly and relied upon by plaintiff Hispanic Leadership Fund (HLF), 

which are attached to this memorandum as an Appendix. 

INTRODUCTION & SUMMARY OF ARGUMENT 

The Supreme Court’s decision in Citizens United v. FEC, 130 S. Ct. 876 (2010), made it 

possible for corporations, including plaintiff Hispanic Leadership Fund (HLF), to spend 

unlimited funds on federal candidate election ads. The Court, however, recognized the 

tremendous importance of voter access to information regarding who is paying for such ads. The 

Court explained: “The First Amendment protects political speech; and disclosure permits citizens 

and shareholders to react to the speech of corporate entities in a proper way. This transparency 

enables the electorate to make informed decisions and give proper weight to different speakers 

and messages.” Id. at 916. 

HLF seeks to air ads referring to the “White House” and the “Administration” and using 

audio recordings of President Obama’s voice between now and the November presidential 

election—and also seeks to deny voters the information necessary to make informed decisions 

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and give proper weight to HLF’s messages. In short, HLF wishes to evade constitutional 

disclosure requirements, and would do so at great cost to the electorate. 

Contrary to HLF’s assertions that it is being “deprive[d] of a legal right—to engage freely 

in constitutionally protected speech and association,” Compl. at 9, and that it “will likely have to 

mute itself and curtail its own speech during the upcoming electioneering communication 

period,” Compl. at 10, HLF is in no way constrained in its ability to speak by the laws at issue in 

this case. As the Supreme Court noted in Citizens United, disclosure requirements “do not 

prevent anyone from speaking.” 130 S. Ct. at 918 (internal citations omitted). 

More than $70 million has been spent so far this year on election ads by corporations, 

unions, individuals and other outside groups.1

 This dollar total will rise dramatically between 

now and Election Day. If this Court determines that HLF’s ads referring to the “White House” 

and the “Administration” and using audio recordings of President Obama do not refer to a clearly 

identified candidate, well-funded outside groups wishing to hide their fundraising and spending 

from voters will undoubtedly follow HLF’s lead. This Court will have eviscerated campaign 

finance disclosure requirements in presidential elections—at least with respect to ads by outside 

groups opposing or praising an incumbent president running for reelection. 

Justice Brandeis famously wrote nearly a century ago: “Sunlight is . . . the best . . . 

disinfectant,” and “electric light the most efficient policeman.” Louis Brandeis, Other People’s 

Money 62 (Nat’l Home Library Found. ed. 1933), quoted in Buckley v. Valeo, 424 U.S. 1, 67 

(1976). If this Court permits HLF and others to evade the light of disclosure through the simple 

expedient of replacing “President Obama” with “White House” or the “Administration” in its 

 

1

 Center for Responsive Politics, Outside Spending, http://www.opensecrets.org/outsidespending/index.php

(last visited Aug. 27, 2012). 

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ads, this Court will have created fertile ground for the corrupting influence of secret money in 

politics to flourish. 

As the FEC makes clear, “[r]ead in context, the way the advertisements used ‘White 

House,’ ‘Administration,’ images of the White House, and an audio clip of President Obama 

made apparent that they unambiguously refer to President Obama, a candidate for federal 

office.” FEC Mem. In Opp. To Pl.’s Mot. For Prelim. Inj. at 15. Consequently, HLF’s ads will 

be subject to federal law “electioneering communication” disclosure requirements, which 

advance vital public governmental interests and do not prevent anyone from speaking. For these 

reasons, this Court should declare that the application of 2 U.S.C. §§ 431(18) and 434(f), as well 

as 11 C.F.R. §§ 100.17 and 100.29, to HLF’s proposed ads is constitutional, should deny HLF’s 

motion for preliminary injunction, and should dismiss HLF’s complaint. 

ARGUMENT 

I. Disclosure Laws Are A “Cornerstone” To Effective Campaign Finance Regulation 

And Represent The “Least Restrictive” Means Of Preventing Corruption And 

Maintaining A Well-Informed Electorate. 

The Supreme Court has repeatedly acknowledged that political disclosure laws both 

reflect and advance important First Amendment precepts. Indeed, disclosure has been called a 

“cornerstone” to campaign finance regulation. See Buckley v. Am. Const. Law Found. (Buckley 

II), 525 U.S. 182, 222–23 (1999) (O’Connor, J., dissenting). In Burroughs v. United States, 290 

U.S. 534 (1934), the Court wrote that it “cannot be denied” that disclosure “would tend to 

prevent the corrupt use of money to affect elections[.]” Id. at 548. Similarly, in Grosjean v. 

American Press Co., 297 U.S. 233 (1936), the Court made clear that “informed public opinion is 

the most potent of all restraints upon misgovernment.” Id. at 250. 

When evaluating the constitutionality of campaign regulations, the Supreme Court 

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

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the First Amendment burdens imposed. Although disclosure laws can implicate the First 

Amendment rights to speak and associate freely, they also advance the public’s interest in 

maintaining an informed electorate and open government. Because disclosure is considered a 

“less restrictive alternative to more comprehensive regulations of speech” that advance these 

interests, the Court has traditionally reviewed disclosure laws under a more relaxed standard than 

other electoral regulations. Citizens United, 130 S. Ct. at 915; see also Buckley, 424 U.S. at 68.2 

As the Court noted in Citizens United, disclosure requirements “do not prevent anyone from 

speaking.” 130 S. Ct. at 918 (internal citations omitted). 

Disclosure obligations are subject only to “exacting scrutiny”—they are valid so long as 

there is “a ‘substantial relation’ between the disclosure requirement and a ‘sufficiently important’ 

governmental interest.” Citizens United, 130 S. Ct. at 914, quoting Buckley, 424 U.S. at 64, 66 

(internal citations omitted). To withstand exacting scrutiny, “the strength of the governmental 

interest must reflect the seriousness of the actual burden on First Amendment rights.” Doe v. 

Reed, 130 S. Ct. 2811, 2818 (2010), quoting Davis v. FEC, 554 U.S. 724, 744 (2008). 

Ultimately, the fact that disclosure laws can have an appreciable effect on individual rights does 

not end the constitutional inquiry, because “important First Amendment-related interests lie on 

 

2

 By comparison, campaign contribution and expenditure limitations are subject to more 

searching review because they are considered more “restrictive” of First Amendment rights. As 

the “most burdensome” campaign finance regulations, expenditure restrictions are subject to 

strict scrutiny and reviewed for whether they are “narrowly tailored” to “further a compelling 

interest.” FEC v. Wisconsin Right to Life, 551 U.S. 449, 476 (2007); see also Buckley, 424 U.S. 

at 44–45. Contribution limits are deemed less burdensome of speech, and are constitutionally 

“valid” if they “satisf[y] the lesser demand of being closely drawn to match a sufficiently 

important interest.” McConnell v. FEC, 540 U.S. 93, 136 (2003), quoting FEC v. Beaumont, 539 

U.S. 146, 162 (2003) (internal quotations omitted). Finally, disclosure requirements are the 

“least restrictive” campaign finance regulations and are subject only to “exacting scrutiny.” 

Buckley, 424 U.S at 68.

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both sides of the constitutional equation.”3

 Although disclosure requirements may burden 

constitutionally protected rights, such requirements have reliably been upheld as constitutionally 

valid because they serve the First Amendment’s overall purpose of promoting open and 

responsive democratic governance. 

The Court in Buckley applied exacting scrutiny and upheld disclosure provisions 

contained in the Federal Election Campaign Act Amendments of 1974 (FECA), 88 Stat. 1263 

(1974). 424 U.S. at 68. Although the Buckley Court acknowledged that “compelled disclosure 

has the potential for substantially infringing the exercise of First Amendment rights,” the Court 

found “that there are governmental interests sufficiently important to outweigh the possibility of 

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

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

(1961)). The Court identified three “substantial” governmental interests served by disclosure 

requirements. First, “disclosure provides the electorate with information ‘as to where political 

campaign money comes from and how it is spent by the candidate’ in order to aid the voters in 

evaluating those who seek federal office.” Id. at 66–67 (footnotes omitted). In addition to this 

informational interest, the Court also found that “disclosure requirements deter actual corruption 

and avoid the appearance of corruption by exposing large contributions and expenditures to the 

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

an essential means of gathering the data necessary to detect violations” of the federal campaign 

finance laws. Id. at 67–68. 

 

3

 See Justice Stephen Breyer, Madison Lecture: Our Democratic Constitution, 77 N.Y.U. 

L. Rev. 245, 253 (2002). In general, “campaign finance laws, despite the limits they impose, 

help to further the kind of open public political discussion that the First Amendment also seeks to 

encourage, not simply as an end, but also as a means to achieve a workable democracy.” Id.

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More recently, the Supreme Court relied upon this analysis in McConnell v. FEC, 540 

U.S. 93 (2003), where the Court by an 8-to-1 vote upheld the “electioneering communication” 

reporting and disclosure requirements at issue in this case. Id. at 194–99 (opinion of the Court); 

id. at 321–22 (Kennedy, J., concurring in the judgment in part and dissenting in part); see also 2 

U.S.C. § 434(f)(2). The McConnell Court held that the three “important” state interests 

identified by Buckley—providing the electorate with information, deterring corruption, and 

enabling enforcement of the law—“apply in full” to the “electioneering communication” 

disclosure requirements. Id. at 196. The Court also noted that invalidating the disclosure 

provisions would disserve the First Amendment interests of the public: 

BCRA’s disclosure provisions require these [entities] to reveal their identities so 

that the public is able to identify the source of the funding behind broadcast 

advertisements influencing certain elections. Plaintiffs’ disdain for BCRA’s 

disclosure provisions is nothing short of surprising. ... Curiously, Plaintiffs want 

to preserve the ability to run these advertisements while hiding behind dubious 

and misleading names like: ‘The Coalition-Americans Working for Real Change’ 

(funded by business organizations opposed to organized labor), ‘Citizens for 

Better Medicare’ (funded by the pharmaceutical industry), ‘Republicans for Clean 

Air’ (funded by brothers Charles and Sam Wyly). ... Given these tactics, 

Plaintiffs never satisfactorily answer the question of how ‘uninhibited, robust, and 

wide-open’ speech can occur when organizations hide themselves from the 

scrutiny of the voting public. Plaintiffs’ argument for striking down BCRA’s 

disclosure provisions does not reinforce the precious First Amendment values that 

Plaintiffs argue are trampled by BCRA, but ignores the competing First 

Amendment interests of individual citizens seeking to make informed choices in 

the political marketplace.” 

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

citations omitted) (emphasis added). The Court here should take note that the name “Hispanic 

Leadership Fund” closely resembles the kind of “dubious and misleading” names mentioned by 

the Court in McConnell as grounds for upholding the disclosure requirement. 

Importantly, the Court upheld the “electioneering communication” disclosure 

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

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at 196, even though it had acknowledged that the definition of “electioneering communications” 

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

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

relatively brief preelection timespans but had no electioneering purpose is a matter of dispute 

between the parties”). In so holding, the majority suggested that the governmental interests that 

had led the Buckley Court to uphold FECA’s disclosure provisions also supported disclosure of 

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

the “electioneering communication” disclosure requirement. The “electioneering 

communication” disclosure requirements, the Court found, vindicated rather than violated the 

truly relevant First Amendment interest: that of “individual citizens seeking to make informed 

choices in the political marketplace.” Id. at 197. 

In Citizens United, the Court again by an 8-to-1 vote upheld the federal law 

“electioneering communication” disclosure requirements at issue in this case and reiterated the 

value of transparency in “[enabling] the electorate to make informed decisions and give proper 

weight to different speakers and messages.” 130 S. Ct. at 916. The Citizens United Court 

explicitly rejected the argument that disclosure requirements must be confined to speech that is 

the functional equivalent of express candidate advocacy, noting, for example, that the “Court has 

upheld registration and disclosure requirements on lobbyists.” Id. at 915 (“[W]e reject Citizens 

United’s contention that the disclosure requirements must be limited to speech that is the 

functional equivalent of express advocacy.”), citing U.S. v. Harriss, 347 U.S. 612, 625 (1954); 

see also Human Life of Wash. v. Brumsickle, 624 F.3d 990, 1016 (9th Cir. 2010) (“Given the 

Court’s analysis in Citizens United, and its holding that the government may impose disclosure 

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requirements on speech, the position that disclosure requirements cannot constitutionally reach 

issue advocacy is unsupportable.”). 

The Supreme Court continued its strong support of disclosure laws most recently in Doe 

v. Reed, where the Court upheld by an 8-to-1 vote a Washington State law providing for the 

disclosure of ballot measure petition signatories, reasoning that “[p]ublic disclosure . . . promotes 

transparency and accountability in the electoral process to an extent other measures cannot.” 130 

S. Ct. at 2820. Justice Scalia explained in concurrence: 

There are laws against threats and intimidation; and harsh criticism, short of 

unlawful action, is a price our people have traditionally been willing to pay 

for self-governance. Requiring people to stand up in public for their political 

acts fosters civic courage, without which democracy is doomed. For my part, 

I do not look forward to a society which, thanks to the Supreme Court, 

campaigns anonymously (McIntyre) and even exercises the direct democracy 

of initiative and referendum hidden from public scrutiny and protected from 

the accountability of criticism. This does not resemble the Home of the 

Brave. 

Id. at 2837 (Scalia, J., concurring). 

CONCLUSION 

“The history of Congress’ efforts at campaign finance reform well demonstrates that 

‘candidates, donors, and parties test the limits of the current law.’” McConnell, 540 U.S. at 174–

75 (quoting FEC v. Colo. Republican Fed. Campaign Comm., 533 U.S. 431, 457 (2001)). HLF 

is testing the limits of the current law in this case—for the sole purpose of avoiding 

“electioneering communication” disclosure requirements. The Supreme Court has made clear 

the vital importance of disclosure laws and that disclosure requirements “do not prevent anyone 

from speaking.” Citizens United, 130 S. Ct. at 918 (internal citations omitted). Corporations 

including HLF have been freed by Citizens United to make unlimited political expenditures, but 

they must provide voters with the information needed to “make informed decisions and give 

proper weight to different speakers and messages.” Id. at 916. 

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For these reasons, this Court should declare that the application of 2 U.S.C. §§ 431(18) 

and 434(f), as well as 11 C.F.R. §§ 100.17 and 100.29, to HLF’s proposed ads is constitutional, 

should deny HLF’s motion for preliminary injunction, and should dismiss HLF’s complaint. 

Respectfully submitted, 

/s/ J. Gerald Hebert

J. GERALD HEBERT 

(VA Bar No. 38432) 

Paul S. Ryan 

(DC Bar No. 502514) 

Tara Malloy 

(DC Bar No. 988280) 

Megan McAllen 

(Cal. Bar No. 281830) 

THE CAMPAIGN LEGAL CENTER 

215 E Street, NE 

Washington, DC 20002 

(202) 736-2200 

Counsel for Amicus Curiae 

Dated: August 29, 2012 

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Appendix 

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May 11, 2012 

By Electronic Mail 

Anthony Herman, Esq. 

General Counsel 

Federal Election Commission 

999 E Street NW 

Washington, DC 20463 

Re: Comments on Advisory Opinion Request 2012-19 (America 

Future Fund)

Dear Mr. Herman: 

These comments are filed on behalf of the Campaign Legal Center and Democracy 21 

with regard to Advisory Opinion Request (AOR) 2012-19, a request submitted on behalf of 

America Future Fund (AFF), which asks the Commission whether “any of eight proposed 

television advertisements include one or more references to a clearly identified candidate for 

Federal election, as that phrase is used in the definition of ‘electioneering communication.’” 

AOR 2012-19 at 1. AFF does not want to “subject itself to the burden of filing electioneering 

communications reports for these advertisements” and does not want to disclose its donors 

whose funds pay to produce and air the ads. Id. 

The scripts of seven of AFF’s eight proposed ads include phrases such as “The White 

House says,” “the Administration stopped,” “Call the White House,” “White House will not 

mark the two-year anniversary of Obamacare” and “Romneycare’s evil twin,” as well as images 

of the White House. See id. at 12-19 (Exhibits 1-8). All of these phrases and images constitute 

references to a clearly identified candidate for Federal office.4

Consequently, the Commission should advise AFF that all of its proposed ads except 

Advertisement #4 refer to a clearly identified candidate and, if broadcast within the applicable 

pre-election windows as proposed, will constitute electioneering communications. 2 U.S.C. § 

434(f)(3). 

I. An Unambiguous Reference Making the Identity of a Candidate Apparent is a 

Reference to a “Clearly Identified” Candidate. 

An “electioneering communication” is a broadcast ad within a defined pre-election time 

frame that “refers to a clearly identified candidate for Federal office.” 2 U.S.C. 

 

4

 Advertisement #4, by contrast, refers to HHS Secretary Kathleen Sebelius and generically to “the 

government.” We do not believe these general references constitute a reference to President Obama. 

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§434(f)(3)(A)(i)(I). The Commission’s “electioneering communication” regulation defines the 

phrase “refers to a clearly identified candidate” to mean: 

[T]he candidate’s name, nickname, photograph, or drawing appears, or the 

identity of the candidate is otherwise apparent through an unambiguous reference

such as “the President,” “your Congressman,” or “the incumbent,” or through an 

unambiguous reference to his or her status as a candidate such as “the Democratic 

presidential nominee” or “the Republican candidate for Senate in the State of 

Georgia.” 

11 C.F.R. § 100.29(b)(2) (emphasis added). 

As the Commission explained in its 2002 Explanation and Justification for section 

100.29(b)(2), the Commission’s regulations contained a definition of “clearly identified” prior to 

the enactment of the “electioneering communication” provisions of the Bipartisan Campaign 

Reform Act of 2002 (BCRA). 

Section 100.29(b)(2) defines the phrase “refers to a clearly identified candidate.” 

This phrase is already defined in the Commission’s rules at 11 CFR 100.17 . . . . 

The final rule tracks the language of the current rule in 11 CFR 100.17. This 

approach appears to be consistent with legislative intent. See 148 Cong. Rec. 

S2144 (daily ed. Mar. 20, 2002) (statement of Sen. Feingold indicating that a 

communication “refers to a clearly identified candidate” if it “mentions, identifies, 

cites, or directs the public to the candidate’s name, photograph, drawing or 

otherwise makes an ‘unambiguous reference’ to the candidate’s identity”). 

Electioneering Communications, Final Rules and Explanation and Justification, 67 Fed. Reg. 

65190, 65192 (Oct. 23, 2002) (emphasis added) (“Electioneering Communications E&J”). 

Indeed, the definitions of “clearly identified” at sections 100.29(b)(2) and 100.17 are 

indistinguishable. 

Thus, under longstanding federal law, where the identity of the candidate is “apparent 

through an unambiguous reference,” the candidate is “clearly identified.” 

II. All of AFF’s Proposed Advertisements Except #4 Refer to a Clearly Identified 

Candidate. 

Advertisement #1 

Advertisement #1 shows an image of the White House and includes the phrases “this 

Administration,” “The White House says,” “the Administration stopped,” “Call the White 

House” and “Tell the White House.” See AOR 2012-19 at 12. President Obama’s identity is 

synonymous with “the White House” and “this Administration.” Thus, President Obama’s 

identity is apparent through each of these unambiguous references. Advertisement #1 

accordingly refers to a clearly identified candidate. 

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Advertisement #2 

Advertisement #2 utilizes President Obama’s voice. See AOR 2012-19 at 13. President 

Obama, after almost four years in office, has perhaps the most recognizable voice in the country, 

and virtually all citizens will identify the President by hearing his voice. President Obama’s 

identity is apparent through this unambiguous reference to him in this ad. Advertisement #2 

refers to a clearly identified candidate. 

Advertisement #3 

Advertisement #3 includes the phrase “Call the White House.” See AOR 2012-19 at 14. 

President Obama’s identity is synonymous with “the White House.” President Obama’s identity 

is thus apparent through this unambiguous reference. Advertisement #3 refers to a clearly 

identified candidate. 

Advertisement #5 

Advertisement #5 shows images and footage of the White House and includes the phrase 

“the Administration.” See AOR 2012-19 at 16. President Obama’s identity is synonymous with 

the White House and “the Administration.” President Obama’s identity is apparent through each 

of these unambiguous references. Advertisement #5 refers to a clearly identified candidate. 

Advertisement #6 

Advertisement #6 includes the phrase “White House” twice in its text. See AOR 2012-19 

at 17. As noted above, President Obama’s identity is synonymous with the White House. 

President Obama’s identity is apparent through these unambiguous references. Advertisement 

#6 refers to a clearly identified candidate. 

Advertisement #7 

Advertisement #7 includes multiple references to the phrase “White House” and the word 

Obamacare. See AOR 2012-19 at 18. President Obama’s identity is synonymous with the White 

House; President Obama’s name is part of the word “Obamacare.” President Obama’s identity is 

apparent through these unambiguous references. Advertisement #7 refers to a clearly identified 

candidate. 

AFF notes that the Commission decided during its 2002 rulemaking on electioneering 

communications “not to adopt a broad regulatory exemption for ‘communications that mention a 

candidate’s name only as part of a popular name of a bill[.]’” AOR 2012-19 at 9. AFF further 

acknowledges that “‘Obamacare’ . . . of course includes the name ‘Obama.’” Id. at 10. Thus, 

this matter is resolved by the Commission’s 2002 decision that legislative names that include the 

names of federal candidates constitute references to those candidates. AFF nevertheless argues 

that its use of “Obamacare” does not constitute a reference to a candidate. Id. This argument 

lacks merit. 

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In rejecting an exemption for communications that mention a candidate’s name as part of 

a popular bill name, the Commission explained: 

Many commenters were opposed to this exemption. The argument most 

frequently cited in opposition to this exemption is the absence of an objective 

standard for the popular name of a bill or law. This lack of an objective standard 

would make the proposed exemption an easy means of evading the electioneering 

communication provisions, because a constructed popular name could be used to 

link a candidate to a popular or unpopular position. 

. . . . 

The Commission is persuaded by the examples cited by the commenters and other 

examples from its own history of enforcement actions that communications that 

mention a candidate’s name only as part of a popular name of a bill can 

nevertheless be crafted in a manner that could reasonably be understood to 

promote, support, attack or oppose a candidate. Furthermore, this type of 

exemption is not necessary because communications can easily discuss proposed 

or pending legislation without including a Federal candidate’s name by using a 

variety of other means of identifying the legislation. 

Electioneering Communications E&J, 67 Fed. Reg. at 65200-01. 

AFF’s Advertisement #7 is just such an attempt to evade the electioneering 

communication disclosure requirements. AFF’s “Obamacare” ad does not “discuss proposed or 

pending legislation” as a means of lobbying. AFF’s Obamacare ad can only reasonably be 

understood to attack or oppose President Obama. The Commission should reject AFF’s 

suggestion that Advertisement #7’s clear reference to President Obama does not constitute a 

reference to a clearly identified candidate. 

AFF’s attempts to analogize its reference to Obamacare in Advertisement #7 to an ad by 

a car dealership featuring a non-candidate who shared a candidate’s name is equally without 

merit. See AOR 2012-19 at 9-10 (citing AO 2004-31). Unlike AFF’s Advertisement #7, which 

refers to an actual candidate, President Obama, who was the architect of Obamacare, the car 

dealership at issue in AO 2004-31 was airing ads featuring the son of a candidate, who happened 

to share the candidate’s name. As the Commission explained in AO 2004-31: 

You represent that Russ Darrow III replaced the Candidate as RDG’s spokesman 

in the late 1980s and began appearing in RDG advertisements at that time. Russ 

Darrow III has been the public face of RDG in its advertisements for over a 

decade. You further state that the Candidate has not appeared in any of RDG’s 

advertisements in more than a decade. 

AO 2004-31 at 2. To the extent that a “Russ Darrow” appeared in the commercials, it was the 

non-candidate Russ Darrow III—and this had been the case for more than a decade. Under these 

circumstances, the Commission reasonably concluded that the car dealership’s ads featuring the 

Case 1:12-cv-00893-TSE-TRJ Document 28-1 Filed 08/29/12 Page 19 of 21 PageID# 494
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non-candidate Russ Darrow II did not refer to a clearly identified candidate. The same is not true 

with respect to AFF’s Advertisement #7, which does refer to a clearly identified candidate.5

Advertisement #8 

Advertisement #8 includes an image of the White House and multiple uses of the word 

Romneycare. See AOR 2012-19 at 19. President Obama’s identity is synonymous with the 

White House. President Obama’s identity is apparent through this unambiguous reference. 

Presidential candidate Mitt Romney’s name is part of the word Romneycare. For the reasons 

discussed above with regard to the use of the term “Obamacare,” Mitt Romney’s identity is 

apparent though the unambiguous reference to “Romneycare.” Advertisement #8 thus refers to 

two clearly identified candidates. 

III. Conclusion 

AFF is not constrained at all in running its proposed ads even if they include a reference 

to a clearly identified candidate and thus constitute “electioneering communications.” At issue is 

whether AFF has to comply with disclosure requirements for electioneering communications – 

requirements that the Supreme Court has said “impose no ceiling on campaign related activities” 

and “do not prevent anyone from speaking.” Citizens United v. FEC, 130 S. Ct. 876, 914 (2010) 

(internal quotations and citations omitted). For the reasons discussed above, seven of the ads 

proposed by AFF contain “unambiguous references” to one or both presidential candidates, and 

the Commission should accordingly advise AFF that those ads meet the standard in section 

100.29(b)(2) as “refer[ring] to a clearly identified candidate.” 

We appreciate the opportunity to submit these comments. 

Sincerely, 

/s/ Fred Wertheimer /s/ J. Gerald Hebert 

Fred Wertheimer J. Gerald Hebert 

Democracy 21 Paul S. Ryan 

 Campaign Legal Center 

Donald J. Simon 

Sonosky, Chambers, Sachse 

 Endreson & Perry LLP 

1425 K Street NW – Suite 600 

 

5

 The AOR cites comments we filed with regard to AO 2004-31 (Darrow), and attempts to portray those 

comments as consistent with the request made here. To the contrary, those comments stressed the “unique factual 

circumstances” in the Darrow AO, and that fact that the ad at issue there referred to a business and to an individual 

who was not a candidate. Comments of Democracy 21 and Campaign Legal Center et al. on AOR 2004-31 (Aug. 

13, 2004) at 2-3. By contrast, the references here are to a candidate in the guise of using the colloquial name of 

legislation that includes the name of the candidate. 

Case 1:12-cv-00893-TSE-TRJ Document 28-1 Filed 08/29/12 Page 20 of 21 PageID# 495
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Washington, DC 20005 

Counsel to Democracy 21 

Paul S. Ryan 

The Campaign Legal Center 

215 E Street NE 

Washington, DC 20002 

Counsel to the Campaign Legal Center 

Copy to: Ms. Shawn Woodhead Werth, Secretary & Clerk of the Commission 

 Mr. Kevin Deeley, Acting Associate General Counsel, Policy 

 Ms. Amy L. Rothstein, Assistant General Counsel 

 Mr. Robert M. Knop, Assistant General Counsel 

Case 1:12-cv-00893-TSE-TRJ Document 28-1 Filed 08/29/12 Page 21 of 21 PageID# 496