United States District Court

Eastern District of Virginia

Richmond Division

The Real Truth About Obama, Inc.

Plaintiff,

v.

Federal Election Commission and

United States Department of Justice,

Defendants.

Case No. 3:08-cv-00483-JRS

Reply in Support of

Preliminary Injunction Motion

James Bopp, Jr.,*

 jboppjr@aol.com

Richard E. Coleson*

 rcoleson@bopplaw.com

Barry A. Bostrom*

bbostrom@bopplaw.com

Clayton J. Callen*

ccallen@bopplaw.com

BOPP, COLESON & BOSTROM

1 South Sixth Street

Terre Haute, IN 47807-3510

812/232-2434 telephone

812/234-3685 facsimile

 *pro hac vice motion granted

Lead Counsel for Plaintiff

Michael Boos (VA State Bar No. 37524)

Law Office of Michael Boos

4101 Chain Bridge Road, Suite 313

Fairfax, VA 22030

703/691-7717 telephone

703/691-7543 facsimile

michael.boos@gte.net

Local Counsel for Plaintiff

Preliminary Injunction Reply

Case 3:08-cv-00483-JRS Document 50 Filed 08/19/2008 Page 1 of 25
Table of Contents

ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

I. Timely Association and Speech Are Not Suspect.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II. This Case Is Justiciable... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

A. RTAO’s Challenge Is to the Vague Provisions that Prevent Timely Advance

Knowledge of Permissibility and Permit the Present Arbitrary Enforcement... . . . . 3

B. The FEC’s Effort to Distinguish RTAO’s Intended Activity from Prior Interpretations Is Unconvincing.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

C. The FEC’s Interpretation Does Not Protect RTAO Because Others May Disagree and May Sue to Require Enforcement.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

III. The Preliminary Injunction Requirements Are Met.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

A. RTAO Has Likely Success on the Merits.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

B. The Other Elements Are Met.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

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Table of Authorities

Cases

Austin v. Mich. State Chamber of Commerce, 494 U.S. 652 (1990). . . . . . . . . . . . . . . . . . . . . . . 19

Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289 (1979).. . . . . . . . . . . . . . . . . . . . . . . 3

Buckley v. Valeo, 424 U.S. 1 (1976). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 4, 7, 9, 15-18

Chamber of Commerce of the United States v. FEC, 69 F.3d 600 (D.C. Cir. 1995).. . . . . . . . . . . 7

City News & Novelty, Inc. v. City of Waukesha, 531 U.S. 278 (2001). . . . . . . . . . . . . . . . . . . . . 12

City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283 (1983).. . . . . . . . . . . . . . . . . . . . . . . . . 12

Doe v. Bolton, 410 U.S. 179 (1973).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

FEC v. Massachusetts Citizens for Life, 479 U.S. 238 (1986). . . . . . . . . . . . . . . . . . . . . . . . . . . 19

FEC v. Survival Education Fund, 65 F.3d 285 (2d Cir. 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . 17

FEC v. Wisconsin Right to Life, 127 S. Ct. 2652 (2007) . . . . . . . . . . . . . . . . . . 2, 9, 14-16, 18, 19

Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167

(2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Kolender v. Lawson, 461 U.S. 352 (1983).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

McConnell v. FEC, 540 U.S. 93 (2003).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Mills v. Alabama, 384 U.S. 214 (1966). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

New Hampshire Right to Life PAC v. Gardner, 99 F.3d 8 (1st Cir.1996).. . . . . . . . . . . . . . . . . . . 5

New York Times Co. v. Sullivan, 376 U.S. 254 (1964). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 9

North Carolina Right to Life v. Bartlett, 168 F.3d 705 (4th Cir. 1999).. . . . . . . . . . . . . . . . . . . 4-6

North Carolina Right to Life v. Leake, 525 F.3d 274 (4th Cir. 2008). . . . . . . . . . . . . . . . 11, 15-19

Northeastern Fla. Chapter of the Associated Gen’l Contractors of Am. v. City of Jacksonville, 508 U.S. 656 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Roth v. United States, 354 U.S. 476 (1957).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

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United States v. W. T. Grant Co., 345 U.S. 629 (1953).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Virginia Society for Human Life v. FEC, 263 F.3d 379 (4th Cir. 2001). . . . . . . . . . . . . . . . . 3, 5, 6

Wilson v. Stocker, 819 F.2d 943 (10th Cir.1987).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Wisconsin Right to Life v. FEC, 466 F. Supp. 2d 195 (D.D.C. 2006) . . . . . . . . . . . . . . . . . . . . . . 9

Constitution, Statutes & Regulations

2 U.S.C. § 4347g(a)(8).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 12

11 C.F.R. § 100.22(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 8, 9, 15

11 C.F.R. § 100.57.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

U.S. Const. amend. I. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Other Authorities

72 Fed. Reg. 5595. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Bob Bauer, Campaign Finance Law and What We All Know (Nov. 23, 2007). . . . . . . . . . . . . . 14

Bob Bauer, The “Real Truth” about Jim Bopp’s New Case (July 31, 2008) . . . . . . . . . . . . . . . . 13

Conciliation Agreement on Matters Under Review 5511 and 5525 (Swift Boat Veterans and

POWs for Truth) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7-9

FEC, Advisory Opinion 2007-33 (Club for Growth).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Rick Hasen, Bob Bauer Says Pro-Clinton 527 Will Face a Reckoning, Election Law Blog

(Feb. 21, 2008) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Michael Luo, Group Plans Campaign Against G.O.P. Donors (Aug. 8, 2008) .. . . . . . . . . . . . . 14

Ben Smith, Obama lawyer warns of ‘reckoning’ for Clinton 527 donors and staff (Feb. 21,

2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

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ARGUMENT

I. Timely Association and Speech Are Not Suspect.

In this case, several Americans recently decided that they wanted to exercise their right to

free expression by telling the public the truth about a prominent politician’s public-policy positions. They decided to amplify their voices by exercising their First Amendment association

right. They promptly organized effectively by incorporating as The Real Truth About Obama,

Inc. (“RTAO”) and obtaining nonprofit status. Aware that similar groups have suffered serious

consequences for similar activity, they promptly sought the pre-activity, pre-enforcement judicial

relief available in First Amendment cases. And they sought a preliminary injunction because untimely speech is of little value, and this is the time when Senator Barack Obama’s positions on

the issues of RTAO’s concern are of greatest public interest and importance.

The Federal Election Commission (“FEC”) recites this story as if it were somehow suspect.1

The FEC’s first insinuation, Doc. 31 at 1, is that individuals can’t just associate and speak with

First Amendment protection because, apparently (according to the FEC), the First Amendment

has a prescience requirement. So under this view, in order for First Amendment rights to engage,

RTAO should have known months ago that it would want to speak. Then it could have organized

long ago. The First Amendment includes no such requirement. Its protections are not limited to

long-established groups.

The timing of this association and intended speech are not suspect. It is precisely what the

Framers envisioned when “We the People” mandated that “Congress shall make no law . . .

abridging the freedom of speech.” U.S. Const. amend. I. With “no law,” citizens could speak

whenever they wanted, without thought to whether they had jumped through some series of

The Department of Justice (“DOJ”) simply incorporates the FEC’s arguments. Doc. 32. 1

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hoops or obtained the government’s prior permission. Nor is the topic of RTAO’s speech suspect: “‘[A] major purpose of [the First] Amendment was to protect the free discussion of governmental affairs. . . . of course includ(ing) discussions of candidates . . . .’” Buckley v. Valeo, 424

U.S. 1, 14 (1976) (quoting Mills v. Alabama, 384 U.S. 214, 218 (1966)). Rather than being restricted, such public “issue advocacy,” or “political speech,” must be protected: “The test to distinguish constitutionally protected political speech from speech that [government] may proscribe

should provide a safe harbor for those who wish to exercise First Amendment rights. The test

should also ‘reflec[t] our “profound national commitment to the principle that debate on public

issues should be uninhibited, robust, and wide-open.”’” FEC v. Wisconsin Right to Life, 127 S.

Ct. 2652, 2665 (2007) (“WRTL II”) (quoting Buckley, 424 U.S. at 14 (quoting New York Times

Co. v. Sullivan, 376 U.S. 254, 270 (1964))). The people have these rights because they, not their

elected officials or federal agencies, are sovereign: “In a republic where the people are sovereign,

the ability of the citizenry to make informed choices among candidates for office is essential, for

the identities of those who are elected will inevitably shape the course that we follow as a nation.” Id. at 14-15. “Discussion of public issues and debate on the qualifications of candidates are

integral to the operation of the system of government established by our Constitution. The First

Amendment affords the broadest protection to such political expression in order ‘to assure (the)

unfettered interchange of ideas for the bringing about of political and social changes desired by

the people.’” Buckley, 424 U.S. at 14 (quoting Roth v. United States, 354 U.S. 476, 484 (1957)).

The second insinuation is that RTAO’s First Amendment rights diminish “near the peak of

the election cycle.” Doc. 33 at 1. But speech in temporal and topical proximity to an election enjoys the highest protection. Buckley, 424 U.S. at 14 (“‘constitutional guarantee has its fullest and

most urgent application precisely to the conduct of campaigns for political office’” (citation

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omitted)).

The third insinuation is that RTAO doesn’t have constitutional rights until it has done something that “implicates federal election law,” such as “fundraising or electoral speech,” or that “the

Commission has taken . . . action against it.” Id. This is contrary to the right to bring pre-activity,

pre-enforcement First Amendment challenges to avoid risking activity that may lead to enforcement and penalties. RTAO has “alleged[d] ‘an intention to engage in a course of conduct arguably affected with a constitutional interest,’ and there . . . exist[s] ‘a credible threat of prosecution’ . . . .” See Virginia Society for Human Life v. FEC, 263 F.3d 379, 386 (4th Cir. 2001)

(“VSHL”) (quoting Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979)).

II. This Case Is Justiciable.

The FEC asserts that RTAO has an “unfounded fear of prosecution” because “the particular

advertisement and fundraising solicitation plaintiff intends to pursue will not be regulated as

plaintiff fears.” Doc. 31 at 1. So the FEC challenges justiciability. Id. at 6. But the convenient

interpretation of the FEC’s lawyers and/or Commissioners that these communications are not 2

regulated does not make this case non-justiciable.

A. RTAO’s Challenge Is to the Vague Provisions that Prevent Timely Advance Knowledge of Permissibility and Permit the Present Arbitrary Enforcement.

RTAO challenged the very vagueness that the FEC now employs to interpret the challenged

provisions in a way that the FEC believes will allow it to escape this case. Vague laws are unconRTAO asked lawyers from the FEC Office of General Counsel whether the position taken 2

in their opposition to preliminary injunction (that RTAO’s activity implicated no challenged regulation) was officially voted upon by the Commissioners. In a response letter, the FEC counsel

recited that “[t]he statements in the . . . Memorandum . . . were the product of consultation with

the Commission.” This constitutes a refusal to reveal whether the position was an OGC position

or a formal Commission position. Therefore, it seems a convenient litigation position. But even if

there were a Commission vote to adopt the position, as occurred in VSHL, 263 F.3d 379, that

would not prevent review. See infra.

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stitutional because they prevent speakers from knowing in advance what is permissible and per- 3

mit arbitrary enforcement. See, e.g., Kolender v. Lawson, 461 U.S. 352, 357 (1983). In the First

Amendment area, bright lines are required. Buckley, 424 U.S. at 41 & n.48. So the issue is not

what the FEC’s current litigation position is as to the interpretation of its regulations, but whether

the regulations themselves appear on their face to apply to RTAO and its planned present and

future activities.

In a similar situation, the Fourth Circuit dealt with what it called a “litigation position” in

North Carolina Right to Life v. Bartlett, 168 F.3d 705, 710 (4th Cir. 1999), cert. denied, 528 U.S.

1153 (2000). The State Board of Elections argued that there was no case or controversy because

“irrespective of the statute’s plain language, the Board interpret[ed] the definition of political

committee” in such a way as to permit the challenger’s intended activity. Id. at 710. The Fourth

Circuit disagreed for reasons that control this case:

When a plaintiff faces a credible threat of prosecution under a criminal statute he has standing

to mount a pre-enforcement challenge to that statute. See Doe v. Bolton, 410 U.S. 179, 188

(1973). A non-moribund statute that “faciallyrestrict[s] expressive activitybythe class to which

The FEC suggests that RTAO should simply get advisory opinions. Doc. 31 at 6 n.1. An 3

advisory opinion would not have been timely because the FEC has sixty days to provide one. 11

C.F.R. § 112.4. So if RTAO had requested one in late July, when it sought injunctive relief, a

response would not have been due until late September, meaning that RTAO would have lost

precious time for its issue advocacy, at key time of public interest, with no certain expectation of

the interpretation that the FEC now offers. In fact, the advisory opinion process permits public

comments, 11 C.F.R. § 112.3, and it is clear that others would not have agreed that the regulations permit RTAO to do its advocacy, see infra, so the FEC likely would have felt less free to

adopt its current litigation position in light of such comments. The FEC might have also been

less likely to be so generous in its interpretation in the absence of a challenge to its rules. There is

evidence for this in the fact that it recently rejected a request to use an abbreviated disclaimer for

brief ads, AO 2007-33 (Club for Growth), which request implicated one of the very burdens alleged here by RTAO. And RTAO wants to do materially-similar activity, which may or may not

be approved by the FEC based on the criteria that the FEC employed in reaching its present interpretation, see infra, and having to wait sixty days each time a new ad or fundraising communication is prepared is an unbearable First Amendment burden, harking back to the days of licensing

schemes, government censors, and prior restraints.

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the plaintiff belongs” presents such a credible threat, and a case or controversy thus exists in the

absence of compelling evidence to the contrary. New Hampshire Right to Life PAC v. Gardner,

99 F.3d 8, 15 (1st Cir.1996). This presumption is particularly appropriate when the presence of

a statute tends to chill the exercise of First Amendment rights. See Wilson v. Stocker, 819 F.2d

943, 946 (10th Cir.1987).

Bartlett, 168 F.3d at 710. The Fourth Circuit noted that NCRL wanted to do similar activity in

the future and that only the good graces of the Board meant that the activity would be protected

in the future because no rule guaranteed that the activity would be protected, and the Board might

change its mind. Id. at 710-11. In the present case, RTAO wants to do materially-similar future

activity—which would certainly be materially-similar in RTAO’s eyes, but perhaps not in the

FEC’s eyes (and there is no way to know, given the vague rules and application criteria employed)—and only the FEC’s interpretation might protect that activity because the challenged

rules do not. Moreover, the Fourth Circuit noted that, despite the Board’s interpretation, there 4

were others who could disagree with the Board’s interpretation and could pursue punishment of

NCRL. Id. at 711. The same is true here. See infra. The question of what the regulations at issue

mean, and to what facts they appear to apply on their face, is ultimately a question of law. Questions of law are for this Court to decide, not the FEC, even though the FEC created the challenged provisions. Agencies are not free to create vague and overbroad laws and then interpret

and apply them in arbitrary and capricious ways as they see fit.

The Fourth Circuit dealt with a similar non-justiciability claim in VSHL, 263 F.3d 379. The

For example, there is a current controversy over whether Senator Obama has actually lied 4

about his voting record as an Illinois State Senator on a state equivalent to the federal Born-Alive

Infants Protection Act (“BAIPA”) (which requires that any child born alive, even after an attempted abortion, be protected as any born child), and in turn Senator Obama has now said that

National Right to Life Committee (“NRLC”) has lied about his voting record on this issue. See

http://www.nrlc.org/ObamaBAIPA/Obamacoveruponbornalive.htm. RTAO is considering an ad

based on this issue, but it would necessarily say that Senator Obama is lying. Would the FEC

consider this a character attack and, therefore, express advocacy? There is no guidance.

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FEC in that case argued that VSHL lacked standing because the Fourth Circuit had struck down

the FEC’s alternative express-advocacy test, 11 C.F.R. § 100.22(b), in a prior case and the FEC

had adopted a policy of not enforcing the regulation in the Fourth Circuit. Id. at 386. The Fourth

Circuit first noted that its prior decision had contained dicta criticizing § 100.22(b), but had not

held it unconstitutional (the Fourth Circuit did hold it unconstitutional in VSHL, 263 F.3d at

392). It then noted the similar policy position in Bartlett, see supra, and that the court had rejected the argument against standing: “when a statute on its face restricts a party from engaging

in expressive activity, there is a presumption of a credible threat of prosecution.” Id. at 388.

VSHL noted that under the FEC’s position, “NCRL’s First Amendment rights would exist only at

the sufferance of the State Board of Elections.” Id. The Fourth Circuit noted that “[t]he FEC’s

policy of non-enforcement, adopted . . . in a closed meeting, is somewhat more formal than the

promise it made during litigation by the State in NCRL,” id., but that it had not been formalized

in a rule, with “the rigors of notice and comment rulemaking.” Id. “A simple vote of the Commission . . . could scuttle the policy.” Id. The Fourth Circuit found standing. Id. at 389.

The FEC’s present claim of nonjustiability has many similarities to VSHL. While the FEC

did enact rules in the present case, its current litigation position as to the reach of those rules was

not subject to rulemaking rigors, only to some “closed meeting” discussion that could readily be

reversed. The position was not obvious from the rules at issue. See infra. And it provides no

guidance for RTAO’s planned materially-similar activity. The vague lines of the rules remain as

vague as ever. RTAO has standing to challenge these provisions. VSHL also resolves the FEC’s

undeveloped ripeness argument, Doc. 31 at 6, because “it is enough to ‘allege[] an intention to

engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a

[regulation].” Id. at 389 (citation omitted).

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The FEC made a similar standing and ripeness claim in Chamber of Commerce of the United

States v. FEC, 69 F.3d 600 (D.C. Cir. 1995). That court rejected the FEC’s claim that plaintiff

had not suffered cognizable harm, pointing in part to the fact that federal law “permits a private

party to challenge the FEC’s decision not to enforce.” Id. at 602 (citing 2 U.S.C. § 4347g(a)(8)).

The cited statute applies to this case, too, and is discussed further infra. The court concluded that

the FEC’s “standing argument [wa]s rather weak and easily reject[ed] it.” Id. at 604. And it held

that Chevron deference is not afforded the FEC’s interpretation of the underlying statute. Id. at

605.

The FEC’s present position is precisely the sort of arbitrary and capricious enforcement that

vague laws allow, and for which they are unconstitutional. As discussed below, the FEC’s present interpretation of its regulations is highly suspect in light of prior enforcement activity and the

views of others. The FEC must not be permitted to adopt a convenient litigation position to avoid

challenge to the vague and overbroad provisions at issue.

B. The FEC’s Effort to Distinguish RTAO’s Intended Activity from Prior Interpretations

Is Unconvincing.

The FEC’s attempt to show how the FEC’s alternative express-advocacy definition, at 11

C.F.R. § 100.22(b), does not encompass the Change ad is unconvincing. While RTAO believes

that the ad is constitutionally-protected from regulation under the true express-advocacy test, see

Buckley, 424 U.S. at 44, n.52, it is not at all clear that it is protected under the regulation.

It is helpful to begin with an example of an ad that the FEC found to be express advocacy

under § 100.22(b). In the Conciliation Agreement on Matters Under Review (“MURs”) 5511 and

5525 (Swift Boat Veterans and POWs for Truth) (“SV-CA”), the FEC found that five television

ads “expressly advocated the defeat of Senator John Kerry” because

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[t]he television advertisements were broadcast shortly before the 2004 Presidential Election,

explicitly challenge Senator Kerry’s “capacity to lead,” assert that he cannot be “trusted,” and

ask why citizens should be willing to “follow” him as a leader. The Commission concludes that,

speaking to voters in this context, the advertisements unambiguously refer to Senator Kerry as

a Presidential candidate by discussing his character, fitness for office, and capacity to lead, and

have no other reasonable meaning than to encourage actions to defeat him. See 11 C.F.R.

§ 100.22(b); Explanation and Justification, 60 Fed. Reg. at 35,295.

SV-CA ¶ 25. An example of these “express advocacy” ads that, according to the Commission,

“attacked the character, qualifications, and fitness for office of Senator John Kerry,” SV-CA

¶ 15, is Any Questions?:

John Kerry has not been honest

And he lacks the capacity to lead.

When the chips are down, you could not count on John Kerry.

. . . 

I served with John Kerry . . . John Kerry cannot be trusted.

SV-CA ¶ 15. Clearly there are no express words of advocacy in Any Questions?. And while there

is clearly opposition to Sen. Kerry, there is nothing that looks like a call to action to vote against

him. To be sure, it says that he is dishonest and can’t be trusted, but since when can citizens be

barred from freely asserting that a politician is dishonest? It says he can’t lead, but politicians are

constantly being accused of poor leadership—and poor judgment, intelligence, and character. It is

a fact of life for public officials in a nation where there are no anti-sedition laws. And if Senator

Kerry put his ability to lead and his military record at issue in any way in an effort to advance

himself, aren’t those who served under or with him permitted to publicly say what they have apparently long—and vehemently—felt about him? The “Swift Vets contend[ed] that its 2004 activities were intended to set the record straight with regard to the public discussion of John

Kerry’s conduct in, and statements about, the Vietnam War, particularly Mr. Kerry’s statements

about the conduct of those who fought in Vietnam, and the declaration that he was ‘reporting for

duty’ in connection with his 2004 Presidential campaign.” SV-CA ¶ 13. SwiftVets also

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contend[ed] the reason that it ran its ads when it did “was because it had made its point on the

issue of concern at the time it was the focus of public debate.” SV-CA ¶ 13. “Setting the record

straight” as to assertions by a public official and candidate concerning his record of both private

and public actions, at a time when the issue is a focus of national debate, is well within the core

of the First Amendment’s highest protection.5

The candidate’s remedy where such an apparently long-simmering dispute among soldiers

bubbles into public view is to join public debate on the allegations against him. His legal remedy

would be constrained by the “actual malice” standard of New York Times, 376 U.S. 254 (1964),

because of “our ‘profound national commitment to the principle that debate on public issues

should be uninhibited, robust, and wide-open.’” Buckley, 424 U.S. at 14 (quoting New York

Times, 376 U.S. at 270).

Yet the Commission found that Any Questions? was express advocacy under 11 C.F.R.

§ 100.22(b) because of proximity to an election, character references, and, according to the Commission, discussion of Sen. Kerry’s “fitness for office.” SV-CA ¶ 25. Of course, none of these

criteria appear in § 100.22(b). And they are inherently vague. When does proximity count (it doesn’t for electioneering communications under WRTL II’s appeal-to-vote test, 127 S. Ct. at 2667),

and how proximate must it be? When does discussion of an incumbent politician’s actions slip

into discussing “fitness for office”? How, under our First Amendment jurisprudence, can discussIn WRTL II, the Commission and Intervenors made nearly identical arguments concerning 5

the timing of WRTL’s ads. See, e.g., Brief for Appellant Federal Election Commission at 45-47,

and some of their arguments were picked up by the WRTL II dissent, 127 S. Ct. at 2698 (Souter,

J., dissenting, joined by Stevens, Ginsburg & Breyer, JJ.), and the district court dissent. See

WRTL v. FEC, 466 F. Supp. 2d 195, 217-18 (D.D.C. 2006) (Roberts, J., dissenting). But WRTL II

either ignored the arguments or expressly rejected them. See 127 S. Ct. at 2668 (rejecting argument that ads were run near an election, not run after the election, and during a Senate recess, and

declaring that “a group can certainly choose to run an issue ad to coincide with public interest

rather than a floor vote”).

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ing the “character” of a U.S. Senator, even if he is a presidential candidate, be restricted without

reverting to the days of anti-sedition laws? The Commission’s finding that there was express advocacy required it to find that there was absolutely no doubt, no ambiguity, about whether the ad

called for a vote against Sen. Kerry—that no reasonable person could think otherwise.

With the sort of criteria applied to Any Questions? in mind, it is easy to see why RTAO is

chilled from running Change and materially-similar ads, and it is easy to see why the FEC’s current interpretation seems a convenient litigation position. The FEC’s discussion in this case of

why Change is not regulated and the new criteria it provides, do nothing to thaw the chill. The

FEC says that Change “contains several unambiguous ‘electoral portion[s]’ referring to Senator

Obama’s campaign for President,” including “appointing Justices . . . —a uniquely presidential

duty—and the manipulation of one of Senator Obama’s campaign slogans, ‘Change we can believe in’ . . . .” Doc. 31 at 12 n.5. That slogan, claims the FEC, “may be uniquely suited to adaptation for non-express advocacy because it contains no explicit electoral component and does not

reference the candidate in any way.” Id. But if it were an “explicit electoral component,” there

would be no debate because that would be express advocacy under Buckley’s magic-words definition. 424 U.S. at 44 n.52. And since the whole Change ad “reference[s] the candidate,” it is

difficult to see how the FEC can split hairs over what part of an ad does or does not reference a

candidate. Moreover, the FEC ignores the fact that Change does connect the “change” slogan

with the candidate at the beginning: “Change. Here is how I would like to change America

. . . about abortion . . . .” The “change” theme shows up twice in that quoted material (and the

closing use of the fuller version of the theme, makes it clear that it is the campaign theme that is

being referenced), and the “I” is plainly Senator Obama. So how is RTAO supposed to know

what the FEC says is permissible use of a campaign slogan and what is not? The FEC’s distincPreliminary Injunction Reply 10

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tions are unconvincing. Where is the First Amendment bright line? The FEC introduces new criteria: “the ad does not question his leadership qualities or patriotism, or compare him with other

candidates.” Doc. 31 at 12 n.5. But those new criteria appear nowhere in § 100.22(b), and they do

not define express advocacy. For example, an ad could mention another candidate and still be

issue advocacy, as in the common example of voter guides that merely compare candidate’s positions. And clearly an ad could say that someone is a lousy leader or unpatriotic without advocating his election or defeat. Finally, the FEC says that “[g]iven the ad’s devotion to speech regarding the abortion issue and the indirect and oblique references to the presidential campaign,

. . . the ad ‘as a whole’ could reasonably be interpreted as a call for the listener to learn more

about his views on abortion.” Doc. 31 at 12 n.5. But there is no “call” to do anything in Change.

RTAO is telling the truth about Senator Obama’s abortion views, not calling listeners to find out

about them. It is true that the closing says: “To learn more real truth about Obama, visit

www.The RealTruthAboutObama.com,” but that is simply making more information available.

But to the present point, is the FEC saying that if RTAO includes this line in its materially-similar ads then the FEC will deem the ads as not express advocacy under § 100.22(b)? What if it

doesn’t? The FEC doesn’t say. The FEC is applying the forbidden “we’ll know it when we see it

approach.” North Carolina Right to Life v. Leake, 525 F.3d 274, 290 (4th Cir. 2008). It is “ handing out speeding tickets without ‘telling anyone . . . the speed limit.’” Id.

In light of its prior interpretation of § 100.22(b) in Any Questions?, the FEC’s current litigation position is more in the nature of a voluntary cessation of unconstitutional activity as applied

to the particular universe of activity subject to the present litigation. However, the voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice. “If it did, courts would have to leave defendants to return to their old

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ways.” Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167,

189 (2000) (quoting City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289 & n.10

(1983)); see also Northeastern Fla. Chapter of the Associated Gen’l Contractors of Am. v. City

of Jacksonville, 508 U.S. 656, 661-62 (1993) (quoting Aladdin’s Castle, 445 U.S. at 289); United

States v. W. T. Grant Co., 345 U.S. 629, 632 (1953) (collecting cases). Indeed, “the general rule

that voluntary cessation of a challenged practice rarely moots a federal case . . . traces to the principle that a party should not be able to evade judicial review, or to defeat a judgment, by temporarily altering questionable behavior.” City News & Novelty, Inc. v. City of Waukesha, 531 U.S.

278, 284 n.1 (2001) (citations omitted).

C. The FEC’s Interpretation Does Not Protect RTAO Because Others May Disagree and

May Sue to Require Enforcement.

A central problem with the FEC’s litigation position is that it doesn’t remove the potential

for harm to RTAO because, if a complaint is filed against RTAO and the FEC declines to bring

an enforcement action, the complainant can sue to compel enforcement after 120 days in the U.S.

District Court for the District of Columbia. 2 U.S.C. § 437g(a)(8)(A). 

[T]he court may declare that the dismissal of the complaint or failure to act is contrary to law,

and direct the Commission to conform with such declaration within 30 days, failing which the

complainant may bring, in the name of such complainant, a civil action to remedy the violation

involved in the original complaint.

2 U.S.C. § 437g(a)(8)(C). As the FEC recites, Doc. 31 at 20, “courts in the D.C. Circuit have refused to enjoin application of section 100.57” (“contribution” presumption). Id. (citations omitted). As to whether there might be parties to complain of the FEC’s non-enforcement against

RTAO, based on the FEC’s interpretation of the challenged provisions as not applying to RTAO

and its intended activities, that is readily shown.

Two candidates for making a such a complaint would be the Campaign Legal Center and

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Democracy 21, who filed an amici curiae brief in this case. Doc. 39-1. The authors of this brief

showed every indication that they believe that RTAO is not free to do its intended activities. In

fact, as recited in RTAO’s opening memorandum, Doc. 4 at 4, Democracy 21 is the group that

wrote the letter to the Department of Justice urging that criminal prosecution of 527s for activities involving the challenged provisions be made a high priority. Two other potential complainants might be Professors Briffault and Ortiz, who obviously feel strongly about the case and have

also filed an amici curiae brief, in which they opine that RTAO may be a political committee,

Doc. 38-2 at 4, a position that is clearly incompatible with RTAO being free to do its intended

activity.

Another highly likely candidate for making a complaint is Senator Obama, or his campaignfinance lawyer, Bob Bauer. See Bob Bauer, The “Real Truth” about Jim Bopp’s New Case (July

31, 2008) (disclosing that he is “counsel to Obama for America”) (part of Bauer’s blog titled

“More Soft Money Hard Law Web Updates: The 2nd Edition to the Guide to the New Campaign

Finance Law”; available at www.moresoftmoneyhardlaw.com/news/html?AID=1313). Bauer

insists that Change “is all about Obama, unambiguously and only in relation to his Presidential

candidacy” and that “[s]hort of a fusillade of classic ‘magic words,’ this advertising program

could not be less ambiguous in its meaning.” Clearly, Bauer doesn’t agree with the FEC’s litigation position that RTAO is free, under the challenged provisions, to do its intended activity. With

such a view, a complaint against the FEC for non-enforcement against RTAO if RTAO proceeds

with its intended activity is a near-certainty. Bauer has also threatened, in no uncertain terms, dire

consequences for anyone who donated to a 527 created to support Senator Clinton, citing the

very provisions at issue here and the FEC’s recent history of vigorous enforcement against 527s

for activity similar to what RTAO proposes. See Ben Smith, Obama lawyer warns of ‘reckoning’

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for Clinton 527 donors and staff (Feb. 21, 2008) (published at www.politico.com; article on file

with counsel for RTAO); Rick Hasen, Bob Bauer Says Pro-Clinton 527 Will Face a Reckoning,

Election Law Blog (Feb. 21, 2008) (providing link to Bauer’s actual letter and noting that Bauer

rejected arguments from 527’s lawyers that the FEC’s new WRTL II rule protected the planned

issue advocacy) (available at http://www.politico.com/blogs/bensmith/0208/Obama_lawyer_warns_of_reckoning_for_Clinton_527_donors_and_staff.html]). On his blog, Bauer noted

the current vagueness of the law with respect to the very provisions at issue and declared the dangers:

The arguments about issue advocacywill not peter out, of course, after WRTLor the experience

with 527s in 2004. Groups, individuals, corporations and unions have the need or desire to

speak to the campaign issues, or they will find in the campaigns just the opportunity they want

to highlight an issue or introduce it to a national audience. And if they speak, they will do so in

a regulatoryenvironment thick with risk created by indeterminate “rules” All these speakers can

be told is this: that they should avoid activity that we all know is regulated campaign activity,

or accept the consequences.

See Bob Bauer, Campaign Finance Law and What We All Know (Nov. 23, 2007) (available at

http://moresoftmoneyhardlaw.com/updates/outside_groups.html?AID=1140).

Another possible complainant is Accountable America, a group attempting to intimidate Republican donors to nonprofit groups, including issue-advocacy 527s. See Michael Luo, Group

Plans Campaign Against G.O.P. Donors (Aug. 8, 2008) (available at www.nytimes.com). The

group has been sending out a threatening letter to “Republican Supporters” and has offered a

$100,000 reward for information leading to criminal convictions for violations of campaign-finance laws. See http://www.acountableamerica.com.

In sum, the FEC’s litigation position provides no protection for RTAO against harm. In fact,

in the current climate, the FEC’s suggestion that RTAO should just go ahead and do its activities

is disingenuous. It clearly bespeaks a litigation position that is convenient only for the FEC.

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RTAO’s allegation of chill is reasonable. RTAO has standing. Its claims are ripe.

III. The Preliminary Injunction Requirements Are Met.

A. RTAO Has Likely Success on the Merits.

RTAO has likely success on the merits. As to the FEC’s alternate express-advocacy rule, 11

C.F.R. § 100.22(b), the Fourth Circuit precludes it as a permissible choice:

Pursuant to their power to regulate elections, legislatures may establish campaign finance laws,

so long as those laws are addressed to communications that are unambiguously campaign

related. The Supreme Court has identified two categories of communication as being unambiguously campaign related. First, “express advocacy,” defined as a communication that uses specific election-related words. Second, “the functional equivalent of express advocacy,” defined

as an “electioneering communication” that “is susceptible of no reasonable interpretation other

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

Leake, 525 F.3d at 282-83. That post-McConnell v. FEC, 540 U.S. 93 (2003), decision is binding

in this Circuit, so those are the FEC’s only two choices for regulating expenditures for communications. There is no authority for an ambiguous hybrid test between the two. Attempting to blur

the bright lines of these two tests chills issue advocacy, which chilling is forbidden by the First

Amendment. And the FEC’s effort to justify its vague express-advocacy definition by likening it

to WRTL II’s appeal-to-vote test, Doc. 31 at 15, conveniently ignores the fact that the appeal-tovote test is vague and overbroad apart from its unique application to communications that already

meet the “electioneering communications” definition. See WRTL II, 127 S. Ct. at 2669 n.7 (defending test against vagueness charge). The FEC’s vague rule applies beyond this limited context.

Moreover, the FEC’s claim that the unambiguously-campaign-related requirement is met

because § 100.22(b) contains the word “unambiguous,” Doc. 31 at 13, simply demonstrates that

the FEC does not comprehend this core constitutional requirement for the campaign laws that the

FEC is supposed to administer. While there has been a universal requirement since Buckley that

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all campaign finance laws and regulations be “unambiguously related to the campaign of a particular candidate,” 424 U.S. at 80, the Court has consistently applied this requirement through derivative tests, e.g., the express-advocacy test for “independent expenditures,” id., the major-purpose test for “political committees,” id. at 79, and the appeal-to-vote test for “electioneering communications.” WRTL II, 127 S. Ct. at 2667. The FEC cannot sidestep the very express-advocacy

test that Buckley employed to meet the unambiguously-campaign-related requirement and claim

that it meets the requirement.

The FEC’s effort to argue that McConnell vitiated the express-advocacy test, Doc. 31 at 14,

ignores the fact that the binding Leake decision has decided that express advocacy requires magic

words, such as “vote for.” McConnell’s simply decided that in addition to express advocacy with

magic words, Congress could regulate “electioneering communications,” which do not contain

the magic words. But both McConnell and WRTL II recognized that as to express advocacy itself,

the magic words are required. See Doc. 4 at 13 and n.6 (noting that all of the Justices in WRTL II

agreed that express advocacy requires magic words). The FEC attempts to blunt this fact by, for

example, arguing that the WRTL II dissenters disagreed “with the magic words standard.” Doc.

31 at 16 n.7. But their disagreement with the standard does not change their recognition that “express advocacy” and “independent expenditures” require magic words, regardless of whatever

else they believe that Congress should be able to do.

As to the solicitation presumption, 11 C.F.R. § 100.57, the FEC relies primarily on its litigation position that RTAO’s proposed solicitation isn’t for activity that will “support or oppose”

Senator Obama. This litigation position has been dealt with at length supra, and simply does not

remove the underlying chill of the vague position itself and the risk of harm to RTAO. The FEC

attempts to import a lower standard of review by reciting that Buckley employed intermediate

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scrutiny for contribution limits, Doc. 31 at 19, but that effort must fail because the issue is what

is properly included as a contribution in a vague and overbroad regulation that creates a presumption, not whether a limit on properly-defined contributions is permissible. The FEC also wants to

dispute the fact that Buckley recognized a narrow scope for contributions. Id. But simply reading

Buckley reveals that it first noted that “for the purpose of influencing” was undefined, 424 U.S. at

23 n.24, that “[o]ther courts have given that phrase a narrow meaning to alleviate various problems in other contexts, id., that “[t]he use of the phrase presents fewer problems in connection

with the definition of a contribution because of the limiting connotation created by the general

understanding of what constitutes a political contribution,” id., and that as the Court used “contribution” it reached only “[f]unds provided to a candidate or political party or campaign committee

either directly or indirectly through an intermediary constitute a contribution. . . . [and] dollars

given to another person or organization that are earmarked for political purposes . . . .” Id. This

narrowing of the scope of “purpose of influencing” is consistent with the unambiguouslycampaign-related requirement, which the Fourth Circuit says is a requirement for all regulation in

this area. Leake, 525 F.3d at 282. By “earmarked” funds for “political purposes,” Buckley of

course would have meant for “political purposes” recognized as regulable, just as FEC v. Survival Education Fund, 65 F.3d 285, 289, 295 (2d Cir. 1995), recognized that contributions in response to a solicitation that said that donations would be used for express-advocacy independent

expenditures would be contributions. SEF provides no authority to create a vague and overbroad

“support or oppose” test. As to the vagueness of “support or oppose,” the benchmark for vagueness in this area must be Buckley’s initial construction of “relative to a clearly identified candidate,” which the Supreme Court construed to mean “advocating the election or defeat of a clearly

identified candidate.” 424 U.S. at 42. The Court said that while that construction “refocuses the

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vagueness question, the Court of Appeals was mistaken in thinking that this construction eliminates the problem of unconstitutional vagueness altogether.” Id. Buckley then explained the

dissolving-distinction problem between advocacy of issues and advocacy of the election or defeat

of candidates, id. at 43-44, which RTAO set out in its opening brief, Doc. 4 at 10, and said that

the phrase still required “express” or “explicit” words of advocacy. 424 U.S. at 44 n.52. Measuring “support or oppose” against this true benchmark readily shows its utter failure to resolve the

vagueness and dissolving-distinction problems that Buckley identified as essential to avoid in the

context of campaign-finance law.

As to the FEC’s enforcement policy on political committee (“PAC”) status, the FEC’s main

argument is that RTAO has not standing because it would have neither expenditures nor contributions to meet the statutory triggers for PAC status. That litigation position has been dealt with

above. The FEC next argues that its published refusal to make a rule on PAC status is not “final”

agency action. But the FEC’s refusal to make a rule was after notice and comment in a

rulemaking procedure, 72 Fed. Reg. 5595, making it a “final” decision not to make a rule but to

rely instead on the non-rule policy set out in the Explanation & Justification. This is different in

kind from the sort of guidelines “used by inspectors” that the FEC recites as support for its position that its decision is not “final.” Doc. 31 at 23-24. On the merits, the FEC fails to demonstrate

the bright lines that are essential to First Amendment regulation, and it totally ignores the binding

statement of the Fourth Circuit that PAC status must be based on the major-purpose test, which

requires “an empirical judgment as to whether an organization primarily engages in regulable,

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

As to 11 C.F.R. § 114.15, the FEC’s effort to state WRTL II’s appeal-to-vote test, 127 S. Ct.

at 2667, the FEC again argues that RTAO may proceed with its ad. Doc. 31 at 27. The problems

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with this convenient litigation position have already been addressed supra. The FEC then attempts to liken Change to an FEC sample ad criticizing a congressman for his environmental

record, and to distinguish it form an ad that names two candidates and characterizes their records

differently. Doc. 31 at 27-28. The sample ads are rather simplistic and don’t deal with the nuances typical of real life. For example, the FEC totally ignores its “indicia of express advocacy”

and the fact that Change mentions that Senator Obama is a “Democrat.” And RTAO still has no

guidance on when an ad might “take[] a position on . . . character, qualifications, or fitness for

office.” As noted above, supra at 5 n.4, RTAO is considering running an ad that would say that

Senator Obama has lied about his voting record. This materially-similar ad would still be about

the abortion issue, but would the FEC consider that such statements are indica of express advocacy, and, if so, what weight would they be given in determining whether the provision is permissible? Whatever else may be said of the FEC’s rule, it is not permissible in this Circuit, which

has recognized the unambiguously-campaign-related requirement and set out WRTL II’s appealto-vote test without including WRTL II’s application of the test to a unique context as part of the

test itself. Leake, 525 F.3d at 282-83.

B. The Other Elements Are Met.

As set out above, RTAO has likely success on the merits. It also has irreparable harm for the

reasons set out in its opening memorandum. The FEC attempts to dodge the inherent burden of

PAC status by arguing that RTAO has not proven that it would be harmed by PAC restrictions,

such as contribution limits. PAC status is an inherent burden, recognized as a matter of law, that

requires the FEC to justify it under strict scrutiny. See Austin v. Mich. State Chamber of Commerce, 494 U.S. 652, 658 (1990); FEC v. Massachusetts Citizens for Life, 479 U.S. 238, 256

(1986) (“MCFL”); Leake, 525 F.3d at 286-90. So RTAO has no need to prove that the pieces of

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PAC status are burdensome. For example, for an organization that wants to raise unlimited funds,

it is a burden for it to be subject to contribution limits. Although RTAO has been chilled from

soliciting funds, it has actually received $10,000 from an individual who heard of this case in the

news. Plainly it would be a harm to have to refund the portion beyond contribution limits.

Since RTAO has actual harm, the arguments that it made as to why it meets the other preliminary injunction elements remain in force. See Doc. 4 at 27-28.

CONCLUSION

For the foregoing reasons a preliminary injunction should issue and no security should be

required, or it should be nominal, since Defendants have no monetary stake.

James Bopp, Jr.,* jboppjr@aol.com

Richard E. Coleson,* rcoleson@bopplaw.com

Barry A. Bostrom,* bbostrom@bopplaw.com

Clayton J. Callen,* ccallen@bopplaw.com

BOPP, COLESON & BOSTROM

1 South Sixth Street

Terre Haute, IN 47807-3510

812/232-2434 telephone

812/234-3685 facsimile

 *pro hac vice motion granted

Lead Counsel for Plaintiff

Respectfully submitted,

Michael Boos (VA State Bar No. 37524)

Law Office of Michael Boos

4101 Chain Bridge Road, Suite 313

Fairfax, VA 22030

703/691-7717 telephone

703/691-7543 facsimile

michael.boos@gte.net

Local Counsel for Plaintiff

Preliminary Injunction Reply 20

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Certificate of Service

I hereby certify that on August 19, 2008, I served upon the below listed persons copies of

this document by electronically filing this document for electronic transmission.

John Richard Griffiths

U.S. Department of Justice

Civil Division, Federal Programs Branch

P.O. Box 883

Washington, DC 20044

john.griffiths@usdoj.gov

Debra Jean Prillaman

Office of U.S. Attorney

600 East Main Street, Suite 1800

Richmond, VA 23219

debra.prillaman@usdoj.gov

J. Gerald Hebert 

J. Gerald Hebert, P.C. 

5019 Waple Ln 

Alexandria, VA 22304 

ghebert@campaignlegalcenter.org

Audra Anne Hale-Maddox

ahale-maddox@fec.gov

Thomasenia P. Duncan

tduncan@fec.gov

David Kolkler. dkokler@fec.gov

Kevin Deeley, kdeeley@fec.gov

Holly Baker, hbaker@fec.gov

Vivien Clair, vclair@fec.gov

Seth Nesin, snesin@fec.gov

Adav Noti, anoti@fec.gov

Claire Rajan, crajan@fec.gov

Federal Election Commission

999 E Street NW

Washington, DC 20463

And I hereby certify that I will mail the document by U.S. mail to the following non-filing users:

Daniel R. Ortiz 

John Allan Love Professor of Law 

University of Virginia School of Law 

580 Massie Road 

Charlottesville, VA 22903-1738 

Richard Briffault 

Joseph P. Chamberlain Professor of

 Legislation 

Columbia University School of Law 

435 West 116th Street 

New York, NY 10027 

/s/ 

Michael Boos (VA State Bar No. 37524)

Law Office of Michael Boos

4101 Chain Bridge Road, Suite 313

Fairfax, VA 22030

703/691-7717 telephone

703/691-7543 facsimile

michael.boos@gte.net

Preliminary Injunction Reply

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