UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

CHRIS VAN HOLLEN, 

 Plaintiff, 

v. 

FEDERAL ELECTION COMMISSION, 

 Defendant, 

and 

CENTER FOR INDIVIDUAL 

FREEDOM, 

 Defendant, 

and 

HISPANIC LEADERSHIP FUND, 

 Defendant. 

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Civ. A. No. 1:11-cv-00766 (ABJ) 

DEFENDANT CENTER FOR INDIVIDUAL FREEDOM’S 

MOTION FOR STAY PENDING APPEAL 

April 5, 2012 

Jan Witold Baran (D.C. Bar No. 233486) 

Thomas W. Kirby (D.C. Bar No. 915231) 

Caleb P. Burns (D.C. Bar No. 474923) 

Andrew G. Woodson (D.C. Bar No. 494062) 

WILEY REIN LLP 

1776 K St., NW 

Washington, D.C. 20006 

202.719.7000 

Counsel for Center for Individual Freedom

Case 1:11-cv-00766-ABJ Document 51 Filed 04/05/12 Page 1 of 15
i 

TABLE OF CONTENTS

Legal Standard ................................................................................................................................ 1 

Argument ........................................................................................................................................ 4 

I. AN APPEAL HAS A SUBSTANTIAL LIKELIHOOD OF SUCCESS............................ 4 

II. THE STAY WILL PREVENT IRREPARABLE HARM.................................................. 8 

III. A STAY WILL NOT HARM CONGRESSMAN VAN HOLLEN. ................................ 11 

IV. THE PUBLIC INTEREST FAVORS GRANTING A STAY.......................................... 12 

Conclusion .................................................................................................................................... 13 

Case 1:11-cv-00766-ABJ Document 51 Filed 04/05/12 Page 2 of 15
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Defendant Center for Individual Freedom, Inc. (“CFIF”) respectfully requests this Court 

to stay its March 30, 2012, order (Doc. No. 47), as revised by its Amending Order (Doc. No. 49) 

and elaborated upon in its Memorandum Opinion (Doc. No. 48), pending final resolution of the 

appeal in this matter. CFIF is committed to pursuing an appeal, is discussing the notice of appeal 

with its co-defendants, and will file or join in such notice within the next week. Defendant 

Hispanic Leadership Fund supports CFIF’s motion. Defendant FEC has not indicated its 

position. Plaintiff Van Hollen does not consent to a stay but has agreed to respond to the motion 

by Friday, April 13, 2012. 

In support of its motion, CFIF states as follows: 

LEGAL STANDARD

In determining whether to grant a stay pending appeal, the Court considers four factors: 

“(1) whether the stay applicant has made a strong showing that he is likely to succeed on the 

merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance 

of the stay will substantially injure the other parties interested in the proceeding; and (4) where 

the public interest lies.” Nken v. Holder, 129 S. Ct. 1749, 1761 (2009). See also Washington 

Metro. Area Transit Comm’n v. Holiday Tours, Inc., 559 F.2d 841, 842-43 & n.1 (D.C. Cir. 

1977); D.C. Cir. Rule 8(a)(1). 

All “four factors have typically been evaluated on a sliding scale,” Davis v. Pension 

Benefit Guar. Corp., 571 F.3d 1288, 1291 (D.C. Cir. 2009) (internal quotation marks omitted),1

but the first two factors are the most important, see Nken, 129 S. Ct. at 1761.2

 The “[p]robability 

 

1

 Although Davis, 571 F.3d at 1291, involved a preliminary injunction, the test for “a stay 

or injunction pending appeal is essentially the same.” Al-Anazi v. Bush, 370 F. Supp. 2d 188, 

193 & n.5 (D.D.C. 2005). 

2

 Following the Supreme Court’s decision in Winter v. NRDC, 555 U.S. 7 (2008), courts 

have been “unclear whether the ‘sliding scale’ is still controlling” or whether a somewhat 

different test applies. In re Special Proceedings, Misc. No. 09-0198, 2012 WL 859578, at *1 

Case 1:11-cv-00766-ABJ Document 51 Filed 04/05/12 Page 3 of 15
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of success” element also “is inversely proportional to the degree of irreparable injury evidenced. 

A stay may be granted with either a high probability of success and some injury, or vice versa.” 

Cuomo v. NRC, 772 F.2d 972, 974 (D.C. Cir. 1985). See also CREW v. Office of Admin., 593 F. 

Supp. 2d 156, 159 (D.D.C. 2009) (same). 

To find a “strong showing” of likely success, a district court need not conclude that its 

ruling is probably wrong.3 The movant “must show more than a mere possibility of success on 

appeal,” Baker v. Socialist People’s Libyan Arab Jamahirya, 810 F. Supp. 2d 90, 97 (D.D.C. 

2010), but it is sufficient to show that “serious legal questions” present “a fair ground for 

litigation,” id.; Al-Adahi v. Obama, 672 F. Supp. 2d 81, 83 (D.D.C. 2009) (quoting Holiday 

Tours, 559 F.2d at 844). 

The presence of “novel and weighty” questions “squarely favors” a finding that the 

movant has satisfied the first element, Al Maqaleh v. Gates, 620 F. Supp. 2d 51, 56 (D.D.C. 

2009), as does litigation where the reviewing court is the “first court to interpret” a law, Pan Am 

 

(D.D.C. Feb. 27, 2012). See also Sherley v. Sebelius, 644 F.3d 388, 393 (D.C. Cir. 2011) 

(discussing circuit split); Davis, 571 F.3d at 1292. But see Pan Am Flight 73 Liaison Grp. v. 

Dave, 711 F. Supp. 2d 13, 34 (D.D.C. 2010) (continuing to apply “sliding scale” analysis after 

Winter). This Court need not decide the issue, however, because CFIF’s showing independently 

satisfies each of the four factors. 

3

 See, e.g., Al-Adahi, 672 F. Supp. 2d at 83 (Kessler, J.) (“While the Court believes that the 

Memorandum Opinion speaks for itself in terms of how the case should be decided, it is true that 

it deals with complicated issues that represent ‘fair ground for litigation and thus for more 

deliberative investigation.’”) (citation omitted); CREW v. Office of Admin., 593 F. Supp. 2d 156, 

161 (D.D.C. 2009) (Kollar-Kotelly, J.) (“although the Court cannot agree with CREW that there 

is a substantial likelihood that it will prevail on the merits of its appeal, the Court recognizes that 

the question . . . is a close one, and is not easily resolved by reference to the limited body of D.C. 

Circuit case law addressing the” general issue) (internal quotation marks omitted); CREW v. 

Office of Admin., 565 F. Supp. 2d 23, 28 (D.D.C. 2008) (Kollar-Kotelly, J.) (a “court is not 

required to find that ultimate success by the movant is a mathematical probability, and indeed, [ ] 

may grant a stay even though its own approach may be contrary to the movant’s view of the 

merits.”) (citation omitted); Nader v. Butz, 60 F.R.D. 381, 386 (D.D.C. 1973) (Jones, J.) (in 

granting stay, “the Court does not retreat from its earlier view [of what] is required under present 

law[, but rather] recognizes that the public interest will best be served by a fair and orderly 

disposition of the public controversy surrounding” the constitutional question). 

Case 1:11-cv-00766-ABJ Document 51 Filed 04/05/12 Page 4 of 15
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Flight 73 Liaison Group v. Dave, 711 F. Supp. 2d 13, 37 (D.D.C. 2010) (explicitly finding that a 

“fair ground for litigation” exists). See also In re Any and All Funds or Other Assets in Brown 

Bros. Harriman & Co. Account No. 8870792 in the Name of Tiger Eye Invs. Ltd., Civ. A. No. 

08–mc–0807, 2009 WL 613717, at *1 (D.D.C. Mar. 10, 2009) (holding same). Moreover, the 

combination of a “novel” legal question and “irreparable harm” caused by a disclosure 

requirement justify a stay pending appeal, even where other factors cut against the stay. Ctr. For 

Envtl. Law v. Office of U.S. Trade Representative, 240 F. Supp. 2d 21, 22-23 (D.D.C. 2003). 

Where First Amendment rights are at stake, a substantial likelihood of success on the 

merits typically establishes all four elements necessary for preliminary relief, including the 

element of irreparable injury. See Phelps-Roper v. Nixon, 509 F.3d 480, 488-89 (8th Cir. 2007) 

(reversing denial of preliminary relief); Connection Distrib. Co. v. Reno, 154 F.3d 281, 288 (6th 

Cir. 1998) (collecting authority). This is because any loss of precious First Amendment 

freedoms is irreparable injury as a matter of law, see, e.g., Elrod v. Burns, 427 U.S. 347, 373 

(1976) (plurality opinion); In re Sealed Case, 237 F.3d 657, 665 (D.C. Cir. 2001) (public 

disclosure makes legal issues “effectively unreviewable”); Branch v. FCC, 824 F.2d 37, 40 (D.C. 

Cir. 1987) (quoting and applying Elrod),4 and members of the public and the Government both 

share a vital interest in protecting First Amendment rights from threat. See Phelps-Roper, 509 

F.3d at 485-86; PETA v. Gittens, 215 F. Supp. 2d 120, 134 (D.D.C. 2002); Connection Distrib. 

Co., 154 F.3d at 288. Thus, a likelihood of success on a First Amendment claim generally 

satisfies all four preliminary injunction factors. 

 

4

 This irreparable injury further lowers the necessary showing of the likelihood of success 

as explained previously in Cuomo v. NRC, 772 F.2d 972 (D.C. Cir. 1985), and Citizens for 

Responsibility and Ethics in Washington v. Office of Administration, 593 F. Supp. 2d 156, 159 

(D.D.C. 2009). 

Case 1:11-cv-00766-ABJ Document 51 Filed 04/05/12 Page 5 of 15
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The primary election season is well underway. Like many other organizations, CFIF has 

made plans to communicate its message to citizens in reliance on the existing rule. Staying the 

Court’s March 30, 2012, order would preserve the status quo for all parties pending appellate 

review and, indeed, for thousands of other parties that, perforce, planned for this election on the 

basis of the FEC regulation issued in 2007 and not previously challenged. See, e.g., CREW v. 

Office of Admin., 593 F. Supp. 2d 156, 161 (D.D.C. 2009) (“[u]nder this Circuit’s precedent, 

[the] Court must consider the significance of the change from the status quo which would arise in 

the absence of a stay”) (citing Cuomo, 772 F.2d at 976). 

In this case, all four factors favor a stay, as CFIF now shows. 

ARGUMENT

I. AN APPEAL HAS A SUBSTANTIAL LIKELIHOOD OF SUCCESS. 

Several threshold factors indicate this is a case that presents a fair ground for litigation, 

including the following: 

 First, as the Court’s Memorandum Opinion points out (at 1-2), this case presents a 

“novel question” that no “authority . . . directly addresses.” When the controlling 

rule must be divined from first principles, there always is more room for differing 

legal judgments. 

 Second, the Memorandum Opinion turns on the conclusion that a specialized 

agency misconstrued the clear meaning of its own statute. Although agency 

views do not control at Chevron Step One, the fact that the FEC’s considered 

judgment conflicts with the Court’s is empirical evidence that informed opinion 

may differ, showing a fair ground for appellate review. 

Case 1:11-cv-00766-ABJ Document 51 Filed 04/05/12 Page 6 of 15
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 Third, the Memorandum Opinion does not rest on factual findings or discretionary 

rulings to which an appellate court will owe deference. Instead, an appeal will 

involve unrestricted de novo evaluation of the controlling questions of law. 

In addition to those threshold considerations, the Memorandum Opinion identifies a 

series of serious legal questions for appeal. Baker, 810 F. Supp. 2d at 97; Al Maqaleh, 620 F. 

Supp. 2d at 56. The Court wrestled with the difficult legal issues in preparing its lengthy 

Memorandum Opinion. Among those issues are the following: 

 The statute defines “contribution” in terms of the giver’s purpose, yet the Court 

ruled (Mem. Op. at 23-25) that the statute clearly does not allow a similar 

meaning for the terms “contributor” and “contributes” because the FEC chose not 

to rely upon the statutory definition in an earlier rulemaking or in this case. 

However, as CFIF showed in its summary judgment briefing, (i) an intervening 

Defendant is entitled to raise and rely on the statutory ambiguity,5

 and (ii) the 

FEC’s rulemaking views do not affect whether the statute has a clear meaning and 

whether the challenged regulation may be invalidated at Chevron Step One.6 

 

5

 Having been granted intervention, CFIF now “becomes a full participant in the lawsuit 

and is treated just as if it were an original party.” Schneider v. Dumbarton Developers Inc., 767 

F.2d 1007, 1017 (D.C. Cir. 1985). 

6

 Step One of the Chevron analysis turns on the statute’s text, not on a term first employed 

in a subsequent regulation. The key phrase is the language of the statute: “contributors who 

contributed.” Although “contributor” and “contributed” are not defined in the statute, they draw 

from the same root as “contribution.” Courts regularly give the same meaning to noun and verb 

forms of the same term, see, e.g., United States v. Granderson, 511 U.S. 39, 46 (1994), and the 

statute defines “contribution” in terms of the giver’s relevant purpose – i.e., “for the purpose of 

influencing any election for federal office.” 2 U.S.C. § 431(8)(A)(i). The Supreme Court also 

has consistently referred to those who make a “contribution” under the statute as “contributors.” 

See, e.g., Buckley v. Valeo, 424 U.S. 1, 21 (1976) (a “contribution” shows the “contributor’s 

support” for a particular “candidate and his views”). Thus, a “contributor who contributed” is 

one who made a “contribution” as defined by the statute, which requires an election-influencing 

purpose. 

Case 1:11-cv-00766-ABJ Document 51 Filed 04/05/12 Page 7 of 15
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 The Court ruled (Mem. Op. at 26-27) that the dictionary meaning of contributor 

and contribution means only putting money in a common pot without regard to 

the reason behind the donation. But giving for a common purpose is one meaning 

authorized by standard dictionaries, including the dictionary cited by Plaintiff.7

 

This dictionary definition, of course, would reinforce the statutory meaning of 

“contributor” and “contributes” as just discussed. 

 The Court ruled (Mem. Op. at 27-29) that constitutional considerations were not 

before the Court because the FEC had no authority to engage in constitutional 

adjudication. But the doctrine of constitutional avoidance is a traditional tool of 

statutory construction that the courts should apply in deciding whether the statute 

clearly forbade the FEC regulation.8 If the courts find a statutory ambiguity on 

that basis, they would not invalidate a regulation resolving the ambiguity. At Step 

One of Chevron, it would not matter whether the agency identified that ambiguity. 

 The Court also ruled (Mem. Op. at 29-30) that Citizens United v. FEC, 130 S. Ct. 

876 (2010), eliminated any constitutional concerns about speech burdens imposed 

 

7

 See Concise Oxford English Dictionary 310 (11th ed. 2004) (to “contribute” is “to give in 

order to help achieve something.”) (emphasis added); Webster’s Third New Int’l Dictionary 496 

(2002) (“contribute,” i.e., “to give or grant in common with others (as to a common fund or for a 

common purpose): give (money or other aid) for a specified object.”) (emphasis added). 

8

 The doctrine of constitutional avoidance is a traditional tool for ascertaining 

congressional intent at Step One of Chevron and provides a reasonable Step Two basis for 

agencies to exercise their discretion to minimize constitutional concerns. See Edward J. 

DeBartolo Corp. v. Fla. Gulf Coast Bldg. and Constr. Trades Council, 485 U.S. 568, 575 

(1988); AFL-CIO v. FEC, 333 F.3d 168, 175-79 (D.C. Cir. 2003) (constitutional avoidance may 

apply at either step of the inquiry in Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984)); Diouf 

v. Napolitano, 634 F.3d 1081, 1086 n.7 (9th Cir. 2011) (the doctrine is a “cardinal principle” of 

construction) (citation omitted); Clark v. Martinez, 543 U.S. 371, 381 (2005) (the doctrine 

reveals congressional intent). In this case, applying the constitutional avoidance doctrine at 

either step yields the same answer: the FEC’s interpretation of the statute must be upheld to 

avoid serious First Amendment concerns raised by Plaintiff’s construction. 

Case 1:11-cv-00766-ABJ Document 51 Filed 04/05/12 Page 8 of 15
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by the statutory disclosure requirements or the accompanying regulation at issue 

here. However, an appellate judge could conclude that Citizens United was 

addressing the statutory disclosure requirements as limited by the FEC regulation 

and did not even consider, much less approve, the much broader and more 

burdensome disclosure obligations that result from the statutory construction 

adopted by this Court.9

 For the reasons discussed at oral argument,10 if the Court were to reach Chevron

Step Two, it is extremely likely that the FEC’s regulation would be upheld. Thus, 

when viewed as a whole, CFIF’s “probability of success” on its summary 

judgment motion is particularly strong. 

 Under the Court’s ruling, the disclosures required of an organization making 

electioneering communications are actually broader and more invasive than if the 

organization were making independent expenditures to expressly advocate the 

election or defeat of a candidate. Compare 2 U.S.C. § 434(c)(2)(C) with 2 U.S.C. 

 

9

 Citing the very FEC regulation at issue here, the Government’s brief in Citizens United

explained that disclosure was limited to “the amount spent on the advertisement and any large 

contributions earmarked to underwrite it.” Brief for Appellee at 30, 39, Citizens United v. FEC, 130 S. Ct. 876 (2010) (No. 08-205), available at

http://fec.gov/law/litigation/citizens_united_sc_08_fec_brief.pdf (emphasis added); see also id.

at 30 (noting that Citizens United only disclosed funds “made or pledged for the purpose of 

furthering the production or public distribution of” the electioneering communication). Rather 

than question its validity, Citizens United, 130 S. Ct. at 914, 916, held that the required 

disclosure of “certain contributors” – i.e., those contributing large, “earmarked” amounts as 

explained by the Government – was a constitutional and “effective disclosure” regime. Brief for 

Appellee, Citizens United v. FEC, at 39. 

10 “[THE COURT]: Well, I think the fundamental question I have to answer here is the 

question I started with at the beginning, which is the Chevron I question, because I think that 

question is ultimately, while I understand that your Chevron I arguments also go to your 

Chevron II objection to the statute, once you get to Chevron II your burden is much higher 

because of the level of deference. So the Chevron I decision is close to being the outcome 

determinative decision, or it may very well be the outcome determinative decision.” Tr. at 73:1-

10 (emphasis added). 

Case 1:11-cv-00766-ABJ Document 51 Filed 04/05/12 Page 9 of 15
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§ 434(f)(2)(F). An appellate judge might think it is highly unlikely that Congress 

intended to require heightened disclosures from organizations whose speech is 

less connected to an election, and even if it did, Congress has not justified such 

differential treatment. 

In sum, this case called upon the Court to exercise its judicial judgment to resolve a series 

of legal issues that provide “a fair ground for litigation” and review by the Court of Appeals. 

The ultimate question was, as the Memorandum Opinion observed, novel and not directly 

addressed by any precedent. In these circumstances, it would suggest no lack of confidence in its 

own ruling for this Court to acknowledge that the legal issues here present “serious legal 

questions” that provide a “fair ground” for appeal. Baker, 810 F. Supp. 2d at 97 (citing Holiday 

Tours, 559 F.2d at 844). 

II. THE STAY WILL PREVENT IRREPARABLE HARM. 

The Memorandum Opinion recognizes (at 7) that the FEC adopted the challenged 

regulation because “compliance with the disclosure requirements would impose a heavy burden 

on corporations and labor organizations.” Those burdens result in First Amendment harm. See

Electioneering Commc’ns, 72 Fed. Reg. 72899, 72901 (Dec. 26, 2007). Vacating the FEC 

regulation will, of course, expose CFIF and other speakers to that “heavy burden” if they engage 

in the core political speech that triggers the statute. 

The FEC’s view is fully supported by the Supreme Court. In Buckley v. Valeo, 424 

U.S. 1, 64 (1976), the Court held that compelled disclosures of the type required by the 

underlying statute “can seriously infringe on . . . the First Amendment.” See also Doe v. Reed, 

130 S. Ct. 2811, 2818 (2010); McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 343 & n.6, 

357 (1995). Speech about how we are governed and who governs us “occupies the highest 

rung . . . of First Amendment values, and is entitled to special protection.” Snyder v. Phelps, 131 

Case 1:11-cv-00766-ABJ Document 51 Filed 04/05/12 Page 10 of 15
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S. Ct. 1207, 1215 (2011) (citation omitted); see also Brown v. Entm’t Merchs. Ass’n, 131 S. Ct. 

2729, 2733 (2011) (“The Free Speech Clause exists principally to protect discourse on public 

matters”); Liberty Lobby, Inc. v. Person, 390 F.2d 489, 491 (D.C. Cir. 1968) (“[E]very person or 

group engaged . . . in trying to persuade Congressional action is exercising the First Amendment 

right of petition.”). The First Amendment does not merely forbid outright bans. Instead, if a 

“statute’s practical effect may be to discourage [such] protected speech,” that is “sufficient to 

characterize [it] as an infringement on First Amendment activities.” FEC v. Mass. Citizens for 

Life, Inc., 479 U.S. 238, 255 (1986) (plurality opinion); see also AFL-CIO v. FEC, 333 F.3d 168, 

175-76 (D.C. Cir. 2003); Block v. Meese, 793 F.2d 1303, 1315 (D.C. Cir. 1986). 

The right is not absolute, but in its seminal Buckley decision, the Supreme Court held 

that, because “compelled disclosure, in itself, can seriously infringe on . . . the First 

Amendment,” disclosure laws such as those at issue here must survive “exacting scrutiny,” 424 

U.S. at 64. Such exacting scrutiny demands “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); see also Doe, 130 S. Ct. at 2811. 

Because the primary election season already is under way, injury to speech and 

associational rights already is occurring. CFIF and similar organizations that will not accept the 

threatened disclosure burdens cannot plan for speech that, unless relief is granted, will be selfcensored and suppressed. See Decl. of Jeffrey A. Mazzella Supporting Mot. to Intervene, at ¶¶ 4, 

7.11 At worst, they stand silent. Id. at ¶ 7. At best, they are forced to divert resources that would 

have been devoted to electioneering communications to secondary messages and means of 

 

11 The Declaration of Jeffrey A. Mazzella Supporting [the] Motion to Intervene was 

originally listed on the Docket as Doc. No. 15-1. The document also is attached to this motion 

for the Court’s convenience. 

Case 1:11-cv-00766-ABJ Document 51 Filed 04/05/12 Page 11 of 15
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communication. See id. ¶ 3 (explaining that CFIF has a history of speaking out through print, 

telephone, and Internet communications, types of media not covered by the federal statute); Decl. 

of Jeffrey L. Mazzella Supporting Mot. for Stay Pending Appeal, at ¶ 3 (explaining that CFIF 

will now be forced to use forms of media “not as effective in communicating CFIF’s messages”). 

Importantly, these First Amendment burdens were not evaluated by Congress and 

determined to be justified. To the contrary, when the underlying statute was adopted, ordinary 

corporations and labor unions were thought to have no right to engage in the types of speech that 

would trigger disclosure. Only in Citizens United did the Supreme Court make clear that such 

speech is as fully protected by the First Amendment as the speech of individuals. 

Although the Court ruled (Mem. Op. at 23-28) that the plain language of the statute 

requires sweeping application, it did not find that Congress actually intended and evaluated the 

resulting burdens on constitutionally protected speech. The FEC is the only element of 

government to have evaluated the burdens of sweeping disclosure, and it found them to be 

unreasonable and excessive. Of course, the question of whether the FEC was legally authorized 

to implement its conclusion will be contested on appeal. But the fact remains that the only 

element of government to assess the burdens associated with sweeping application of the statute 

found those burdens to be serious and unjustified. 

The Memorandum Opinion says (at 29-30) that Citizens United approved the disclosure 

statute and said that it served justifying purposes. However, as noted above, see supra at n.9, the 

Court was speaking of the statute as limited by the regulation that this Court now has ruled 

invalid. See Brief for Appellee at 30, Citizens United v. FEC, 130 S. Ct. 876 (2010) (No. 08-

205), available at http://fec.gov/law/litigation/citizens_united_sc_08_fec_brief.pdf (citing 

11 C.F.R. § 104.20(c)(9) in explaining that disclosure was limited to funds “made or pledged for 

Case 1:11-cv-00766-ABJ Document 51 Filed 04/05/12 Page 12 of 15
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the purpose of furthering the production or public distribution of” the electioneering 

communication). Citizens United did not purport to evaluate the burdens that the statute would 

inflict in the absence of the regulation or to find that such burdens are justified. 

In short, the challenged regulation was intended to and did protect the core political 

speech of CFIF and other corporations and labor unions from serious burdens associated with 

disclosure. Unless the ruling invalidating that regulation is stayed, that injury will continue to 

occur and core speech and related association will be suppressed. Such First Amendment injury 

is irreparable as a matter of law. 

III. A STAY WILL NOT HARM CONGRESSMAN VAN HOLLEN. 

Congressman Van Hollen’s claimed injury is that he “likely will be subjected to attack 

ads or other ‘electioneering communications’ financed by anonymous donors.” Doc. 1, ¶ 11. But 

“Van Hollen is in a safe district in blue Maryland, removing any worries about re-election.” 

Matt Mackowiak, Mackowiak: The Political Winners of 2011, Roll Call, Dec. 29, 2011, 

available at http://www.rollcall.com/news/matt_mackowiak_political_winners_2011-211282-

1.html. See also Courtney Pomeroy, Van Hollen, Timmerman Pick Up 8th District Victories, 

Frederick News-Post, April 4, 2012 (noting that the 8th District is heavily Democratic, with 

228,653 registered Democrats and only 126,169 registered Republicans). Indeed, Congressman 

Van Hollen has won re-election the past four election cycles with no less than 73% of the vote, 

thus making it very unlikely that outside organizations will make electioneering communications 

that reference Congressman Van Hollen.12 There is therefore little likelihood that Plaintiff Van 

Hollen will be harmed by a stay. 

 

12 See Md. State Bd. of Elections, 2010 General Election Official Results, Representative in 

Congress, Congressional District 08, available at

http://elections.state.md.us/elections/2010/results/General/StateResults_office_008_district_08.ht

ml; Md. State Bd. of Elections, Official 2008 Presidential General Election Results for 

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12 

Moreover, in his capacity as a federal officeholder, Congressman Van Hollen also has an 

interest in assuring that First Amendment rights are fully respected and implemented. See U.S. 

Const. art. VI. This interest would further offset any claim of personal injury by Plaintiff Van 

Hollen. 

IV. THE PUBLIC INTEREST FAVORS GRANTING A STAY. 

There “is a very strong public interest in ensuring that fundamental constitutional issues 

are fully aired and carefully considered by the courts.” Emergency Mot. for Stay Pending 

Appeal, In the Matter of the Search of Rayburn House Office Bldg. Room Number 2113, 

Washington, D.C. 20515, No. 06-3105 (D.C. Cir. July 20, 2006), available at 

http://www.scotusblog.com/archives/Jeff%20emergency%20stay%20mtn.pdf. This is because a 

“weighty public interest [exists] in ensuring that constitutional rights are vindicated,” 

Al Maqaleh v. Gates, 620 F. Supp. 2d at 57, and “there can be no public interest in enforcing an 

unconstitutional law,” Nat’l Black Police Ass’n v. Dist. of Columbia Bd. of Elections and Ethics, 

858 F. Supp. 251, 263 (D.D.C. 1994). See also Christian Legal Soc’y v. Walker, 453 F.3d 853, 

859 (7th Cir. 2006) (“injunctions protecting First Amendment freedoms are always in the public 

interest”); G&V Lounge, Inc. v. Mich. Liquor Control Comm’n, 23 F.3d 1071, 1079 (6th Cir. 

1994) (“it is always in the public interest to prevent the violation of a party’s constitutional 

rights”); PETA, 215 F. Supp. 2d at 134 (“the public interest favors a preliminary injunction 

whenever First Amendment rights have been violated”). The public interest is equally “served 

 

Congressional District 08, Representative in Congress, available at

http://elections.state.md.us/elections/2008/results/general/congressional_district_08.html; Md. 

State Bd. of Elections, Official 2006 Gubernatorial General Election Results for Representative 

in Congress, available at

http://elections.state.md.us/elections/2006/results/general/office_Representative_in_Congress.ht

ml; Md. State Bd. of Elections, 2004 Presidential General Official Results, County Breakdown, 

Representative in Congress, available at 

http://elections.state.md.us/elections/2004/general/congress.html. 

Case 1:11-cv-00766-ABJ Document 51 Filed 04/05/12 Page 14 of 15
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by ensuring that [a party’s] First Amendment rights are not infringed before the constitutionality 

of [a] regulation has been definitively determined,” particularly where “Congress did not 

specifically contemplate the First Amendment implications when formulating its statute, much 

less whether the statute . . . might violate [the First Amendment].” R.J. Reynolds Tobacco Co. v. 

FDA, Civ. Case No. 11-1482, 2011 WL 5307391, at *10 (D.D.C. Nov. 7, 2011). Thus, the 

public interest factors also weighs decidedly in CFIF’s favor. 

CONCLUSION

For all of the reasons discussed above, the Court should grant Defendant CFIF’s motion 

for a stay pending appeal. 

April 5, 2012 Respectfully submitted, 

 /s/ Thomas W. Kirby 

Jan Witold Baran (D.C. Bar No. 233486) 

 E-mail: jbaran@wileyrein.com

Thomas W. Kirby (D.C. Bar No. 915231) 

 E-mail: tkirby@wileyrein.com

Caleb P. Burns (D.C. Bar No. 474923) 

 E-mail: cburns@wileyrein.com

Andrew G. Woodson (D.C. Bar No. 494062) 

 E-mail: awoodson@wileyrein.com

WILEY REIN LLP 

1776 K St., NW 

Washington, D.C. 20006 

202.719.7000 

Counsel for Center for Individual Freedom

Case 1:11-cv-00766-ABJ Document 51 Filed 04/05/12 Page 15 of 15