United States District Court

Eastern District of North Carolina

Northern Division

Holly Lynn Koerber and

Committee for Truth in Politics, Inc.,

Plaintiffs,

v.

Federal Election Commission,

Defendant.

Case No. 2:08-cv-00039-H

Memorandum in Support of 

Plaintiffs’ Motion to Stay all Proceedings 

Pending a Decision in Citizens United v. FEC

Plaintiffs Holly Lynn Koerber and Committee for Truth in Politics, Inc. (“CTP”) respectfully move for a stay of all proceedings in this action pending a decision from the United States

Supreme Court in Citizens United v. FEC, 2008 WL 2788753 (D.D.C. July 18, 2008), prob.

juris. noted, -- S.Ct. -- (Nov. 14, 2008). A stay would be a proper exercise of this Court’s discretion because Citizens United will likely be dispositive on a question of law at issue here. See

U.S. v. Jones, 136 F.3 342 (4th Cir. 1998) (lower court granted motion to stay proceedings until

the Supreme Court ruled on similar issues in a pending case). 

At issue in Citizens United is one of the very same questions at issue in the present case:

Whether “electioneering communications” that may not be prohibited under FEC v. Wisconsin

Right to Life, 127 S. Ct. 2652 (2007) (“WRTL II”), may nonetheless be subject to reporting requirements, BCRA § 201, and disclaimer requirements, BCRA § 311.”1

 The ads at issue in 

1

 The relevant question presented to the Supreme Court is as follows:

Whether BCRA's disclosure requirements impose an unconstitutional burden

Motion to Stay all Proceedings Memo 1

Case 2:08-cv-00039-H Document 42 Filed 01/02/2009 Page 1 of 4
Citizens United qualify as “electioneering communications” but are protected from prohibition

by WRTL II ’s “appeal to vote” test. WRTL II, 127 S. Ct. at 2670. Citizens United asserts that because these ads have a reasonable interpretation other than as an appeal to vote, they are not

unambiguously-campaign-related and must be free from regulation, including disclosure requirements. Here, CTP’s Ads are also “electioneering communications” protected from prohibition

under WRTL II’s appeal to vote test. Verified Complaint (Dkt. 1) ¶¶ 4-5 (“VC”), Defendant

FEC’s Opposition to Plaintiff’s Motion for Preliminary Injunction (Dkt. 21) at 8 (agreeing that

CTP’s Ads may not be prohibited under WRTL II). And just like Citizens United, CTP argues

that because its Ads may reasonably be interpreted as something other than an appeal to vote,

WRTL II, 127 S. Ct. at 2670, they are not unambiguously-campaign-related and must be free

from all regulation, including disclosure requirements. VC ¶¶ 47-48. Thus, the Supreme Court’s

ruling on this issue in Citizens United has direct bearing on the constitutional question before this

court. 

Furthermore, whether CTP’s Ads may be constitutionally subject to regulation has direct

bearing on the second issue in this case, CTP’s challenge to the FEC’s enforcement policy for

determining PAC status, see FEC, “Political Committee Status,” 72 Fed. Reg. 5595 (Feb. 7,

2007), VC ¶¶ 14-15. This challenge asserts that the FEC employs a vague and overbroad totalitywhen applied to electioneering communications protected from prohibition by the

appeal-to-vote test, FEC v. Wisconsin Right to Life, 127 S. Ct. 2652, 2667 (2007)

("WRTL II”), because such communications are protected "political speech," not

regulable “campaign speech,” id. at 2659, in that they are not "unambiguously

related to the campaign of a particular federal candidate," Buckley v. Valeo, 424

U.S. 1, 80 (1976), or because the disclosure requirements fail strict scrutiny when

so applied.

Citizens United v. FEC, Questions Presented, Docket 08-205 (available at http://origin.www.

supremecourtus.gov/qp/08-00205qp.pdf) (fourth question presented omitted). 

Motion to Stay all Proceedings Memo 2

Case 2:08-cv-00039-H Document 42 Filed 01/02/2009 Page 2 of 4
of-the-circumstances test for determining major purpose instead of the required “empirical judgment as to whether an organization primarily engages in regulable, election-related speech,”

North Carolina Right to Life v. Leake, 525 F.3d 274, 287 (4th Cir. 2008) (emphasis added). Central to this challenge is whether CTP’s ads are “regulable.”

In sum, because the issues to be decided in Citizens United will have a substantial impact

on the disposition of CTP’s claims, a stay is appropriate. Moreover, Defendant FEC does not object to a stay in this case. Joint Report of the Parties (Dkt. 40) ¶ 1. Plaintiffs respectfully request

that the Court stay all proceedings in this matter until the Supreme Court of the United States has

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

On this 2nd day of January, 2009. 

/s/ James Bopp, Jr. 

James Bopp, Jr., jboppjr@aol.com

 Ind. Bar No. 2838-84

Richard E. Coleson, rcoleson@bopplaw.com

 Ind. Bar No. 11527-70

Clayton J. Callen, ccallen@bopplaw.com

 Mo. Bar No. 59885

Sarah Troupis, stroupis@bopplaw.com

 Wis. Bar No. 1061515

BOPP, COLESON & BOSTROM

1 South Sixth Street

Terre Haute, IN 47807-3510

812/232-2434 telephone

812/234-3685 facsimile

Lead Counsel for Plaintiffs

Respectfully submitted,

/s/ Paul Stam 

Paul Stam, paulstam@bellsouth.net

State Bar No. 6865

STAM FORDHAM & DANCHI, P.A.

P.O. Box 1600

510 W. Williams Street

Apex, NC 27502

919/362-8873 telephone

919/387-7329 facsimile

Local Counsel for Plaintiffs

Motion to Stay all Proceedings Memo 3

Case 2:08-cv-00039-H Document 42 Filed 01/02/2009 Page 3 of 4
Certificate of Service

I hereby certify that on January 2, 2008, I served upon the below listed persons copies of

this document by electronically filing this document for electronic transmission.

David B. Kolker, dkolker@fec.gov

Claire N. Rajan, crajan@fec.gov

Harry J. Summers, hsummers@fec.gov

FEDERAL ELECTION COMMISSION

999 E Street, NW

Washington, DC 20436

R.A. Renfer, Jr.

U.S. ATTORNEY’S OFFICE

Rm. 800, 310 New Bern Ave.

Raleigh, NC 27601

rudy.renfer@usdoj.gov

Anita S. Earls

SOUTHERN COALITION FOR SOCIAL JUSTICE

6 Superior Ct. 

Durham, NC 27713

anitaearls@gmail.com

/s/ Paul Stam 

Paul Stam, paulstam@bellsouth.net

State Bar No. 6865

STAM FORDHAM & DANCHI, P.A.

P.O. Box 1600510 W. Williams Street

Apex, NC 27502

919/362-8873 telephone

919/387-7329 facsimile

Local Counsel for Plaintiffs

Motion to Stay all Proceedings Memo 4

Case 2:08-cv-00039-H Document 42 Filed 01/02/2009 Page 4 of 4