UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

____________________________________ 

 ) 

SPEECHNOW.ORG, ) 

DAVID KEATING, ) 

FRED M. YOUNG, JR., ) 

EDWARD H. CRANE, III, ) 

BRAD RUSSO, and ) 

SCOTT BURKHARDT ) 

 ) 

 Plaintiffs, ) 

 ) 

 v. ) Civil Case No. 1:08-cv-00248 (JB) 

 ) 

FEDERAL ELECTION COMMISSION ) 

 ) 

 Defendant. ) 

____________________________________) 

______________________________________________________

PLAINTIFFS’ RESPONSE TO DEFENDANT 

FEDERAL ELECTION COMMISSION’S 

MOTION TO ALTER OR AMEND THE JUDGMENT 

_______________________________________________________

William H. Mellor (DC Bar No. 462072) 

Steven M. Simpson (DC Bar No. 462553) 

Robert Gall (DC Bar No. 482476) 

Robert P. Frommer (DC Bar No. 497308) 

Paul M. Sherman (DC Bar No. 978663) 

INSTITUTE FOR JUSTICE

901 N. Glebe Road, Suite 900 

Arlington, VA 22203 

Tel: (703) 682-9320 

Stephen M. Hoersting* 

Bradley A. Smith* 

CENTER FOR COMPETITIVE POLITICS

124 W. Street South, Suite 201 

Alexandria, VA 22314 

Tel: (703) 894-6800 

Attorneys for Plaintiffs

*Admitted Pro Hac Vice 

Case 1:08-cv-00248-JDB Document 81 Filed 06/25/10 Page 1 of 13
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TABLE OF CONTENTS 

Page 

TABLE OF AUTHORITIES ......................................................................................................... iii 

INTRODUCTION ...........................................................................................................................1 

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

I. The FEC Does Not Meet the Strict Standards that Govern Motions to 

 Amend or Alter a Judgment.....................................................................................1 

II. This Court Did Not “Clearly Err” either in Completing the Purely 

 Ministerial Act of Entering Judgment or By Enjoining the FEC from 

 Enforcing Contribution Limits against SpeechNow.org’s Nonparty 

 Contributors .............................................................................................................2 

III. Because the Court of Appeals Already Declared that Applying the PoliticalCommittee Requirements to SpeechNow.org is Constitutional, this Court 

 Properly Refrained from Entering a Redundant Declaration...................................6 

CONCLUSION................................................................................................................................7 

Case 1:08-cv-00248-JDB Document 81 Filed 06/25/10 Page 2 of 13
iii

TABLE OF AUTHORITIES 

Cases Pages

ACLU v. Mineta, 

 19 F. Supp. 2d 69 (D.D.C. 2004).........................................................................................4

Am. Fed’n of Gov’t Emps v. Gates, 

 86 F.3d 1316 (D.C. Cir. 2007).............................................................................................4

Am. Fed’n of Gov’t Emps v. Rumsfeld, 

 22 F. Supp. 2d 16 (D.D.C. 2006).........................................................................................4

*Citizens United v. FEC, 

 130 S. Ct. 876 (2010)...................................................................................................3, 4, 5

Cleveland Board of Education v. Loudermill, 

 70 U.S. 532 (1985)...............................................................................................................3

Crocker v. Piedmont Aviation, Inc., 

 49 F.3d 735 (D.C. Cir. 1995)...............................................................................................3

*Firestone v. Firestone, 

 76 F.3d 1205 (D.C. Cir. 1996).............................................................................................1

Hoffman v. District of Columbia, 

 681 F. Supp. 2d 86 (D.D.C. 2010).......................................................................................1 

Humane Soc’y of the U.S. v. Johanns, 

 20 F. Supp. 2d 8 (D.D.C. 2007)...........................................................................................4

MBI Group, Inc. v. Credit Foncier du Cameroun, 

627 F. Supp. 2d 35 (D.D.C. 2009).......................................................................................1 

Nat’l Treasury Emps Union v. Yeutter, 

 918 F.2d 968 (D.C. Cir. 1990).............................................................................................4

New York v. United States, 

 880 F. Supp. 37 (D.D.C. 1995)............................................................................................2 

*SpeechNow.org v. FEC, 

 599 F.3d 686 (D.C. Cir. 2010).............................................................................2, 3, 4, 5, 6 

*Authorities upon which Plaintiffs chiefly rely are marked with asterisks

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Statutes

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

2 U.S.C. § 441a(a)(3).......................................................................................................................5 

Rules

Fed. R. Civ. P. 59(e) ................................................................................................................1, 6, 7 

Other Authority

11 Wright & Miller, Federal Practice and Procedure § 2810.1 (2d ed. 1995).................................1 

Lyle Denniston, No appeal in SpeechNow, (June 17, 2010, 11:55 AM), 

http://www.scotusblog.com/2010/06/no-appeal-in-speechnow...........................................1 

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INTRODUCTION 

 The FEC, in its motion to amend, has asked this Court to re-open its final judgment and 

essentially relitigate issues that the D.C. Circuit and this Court have already resolved. None of 

the FEC’s arguments satisfy the high standard that Federal Rule 59(e) requires. The Court’s 

final judgment simply gave effect to the clear language of the Court of Appeals’ decision. As a 

result, the FEC’s quarrel is not with this Court’s judgment, but with the decision of the D.C. 

Circuit—a decision that the Solicitor General has said that it will not ask the Supreme Court to 

review. Lyle Denniston, No appeal in SpeechNow, (June 17, 2010, 11:55 AM), 

http://www.scotusblog.com/2010/06/no-appeal-in-speechnow. Plaintiffs respectfully request that 

this Court deny the Defendant’s motion to amend. 

ARGUMENT 

I. The FEC Does Not Meet the Strict Standards that Govern Motions to Amend or 

Alter a Judgment. 

 Courts in this Circuit view motions to alter or amend judgments with disfavor and do not 

grant them lightly. See, e.g., Hoffman v. District of Columbia, 681 F. Supp. 2d 86, 89 (D.D.C. 

2010) (“A motion pursuant to Rule 59(e), to alter or amend a judgment after its entry, is not 

routinely granted.”); MBI Group, Inc. v. Credit Foncier du Cameroun, 627 F. Supp. 2d 35, 40 

(D.D.C. 2009). Reconsideration is an “extraordinary remedy which should be used only 

sparingly,” see 11 Charles Alan Wright et al., Federal Practice and Procedure § 2810.1 (2d ed. 

1995), precisely because of the strong interest in judicial finality and the conservation of scarce 

judicial resources. Hence, courts refrain from altering or amending final judgments unless 1) 

there has been an intervening change in controlling law; 2) new evidence has become available; 

or 3) there has been a clear error or granting the motion will prevent a manifest injustice. 

Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996). 

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 In order to prevail, the FEC must present “new facts or a clear error of law which 

‘compel’ a change in the court’s ruling.” New York v. United States, 880 F. Supp. 37, 39 

(D.D.C. 1995). The FEC’s motion presents neither. Instead, it asserts that this Court committed 

“clear error” by entering final judgment before the FEC submitted its response to Plaintiffs’ 

Motion for Entry of Judgment—a response in which it claimed that Plaintiffs were not entitled to 

an injunction. It also asserts that this Court committed “clear error” by not entering a declaration 

that Plaintiffs could be constitutionally required to register and report as a political committee. 

As more fully explained below, the District Court committed no error at all—much less “clear 

error;” it simply completed the purely ministerial act of entering a final judgment that gave effect 

to the D.C. Circuit’s decision that “the contribution limits set forth in certified questions 1, 2, and 

3 cannot be constitutionally applied against SpeechNow and the individual plaintiffs.”1

 

Judgment at 1, SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir. 2010) (Nos. 08-5223, 09-5342). 

Accordingly, the FEC cannot show any error whatsoever, let alone the “clear error” that would 

compel a change in this Court’s ruling. 

II. This Court Did Not “Clearly Err” either in Completing the Purely Ministerial Act 

of Entering Judgment or By Enjoining the FEC from Enforcing Contribution 

Limits against SpeechNow.org’s Nonparty Contributors. 

 The FEC complains that this Court should have waited to receive its response, which 

argues against the entry of an injunction, before entering judgment for Plaintiffs. But the FEC 

cites no authority for the proposition that it is “clear error” for a court to perform the ministerial 

act of entering final judgment, pursuant to the instructions of an appellate court, before a party 

can raise an objection. Here, the Court of Appeals made clear in both its opinion and judgment 

 

1

 Because the D.C. Circuit specifically held that the Federal Election Communication could not impose any limits on 

the contributions that SpeechNow.org accepts to fund its independent expenditures, the FEC’s request that this Court 

conduct an entirely perfunctory “summary judgment” proceeding before entering final judgment is the very essence 

of elevating form over substance. 

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that an injunction should be issued against the FEC. Indeed, the only issue cited by the Court of 

Appeals in remanding the case was the matter of injunctive relief: The D.C. Circuit specifically 

vacated the District Court’s refusal to enter injunctive relief and remanded the case for “further 

proceedings, in accordance with the opinion of the court filed herein.” Judgment at 1, 

SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir. 2010) (Nos. 08-5223, 09-5342). Had the D.C. 

Circuit not wanted this Court to enter an injunction on Plaintiffs’ behalf, there would have been 

no reason to remand at all. 

The FEC cites Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985), in 

support of its argument, but that case is inapposite. In Loudermill, the Cleveland School Board 

undertook completely discretionary actions by terminating two different “for-cause” publicschool employees. The Court held that before the Board could exercise that discretion, it had to 

give the employees an opportunity to “present reasons, either in person or in writing, why 

proposed action should not be taken.” 470 U.S. at 546. But terminating employees without a 

hearing is a vastly different situation than a district court entering a final judgment that reflects 

the clear mandate of an appellate court’s decision. Here, the D.C. Circuit, in its order and 

judgment, clearly laid out what should occur upon remand. And it is black-letter law that a 

district court must follow the terms of the mandate issued by an appellate court. See Crocker v. 

Piedmont Aviation, Inc., 49 F.3d 735, 739 (D.C. Cir. 1995). Because this Court had no 

discretion to deviate from the Court of Appeals’ ruling, nothing the FEC could have said in its 

response would have made the slightest difference.2

 This Court’s decision to act quickly, so that 

Plaintiffs may speak in the quickly ending primary season, was not error. Cf. Citizens United v. 

 

2

 Indeed, because the Court of Appeals’ disposition of this case left nothing for this Court to resolve, this Court 

would have been entitled to enter final judgment on its own motion immediately upon remand. The fact that 

Plaintiffs sent the Court a Motion for Entry of Final Judgment and a Proposed Order before this Court entered 

judgment in no way removed this inherent power from the Court. 

Case 1:08-cv-00248-JDB Document 81 Filed 06/25/10 Page 7 of 13
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FEC, 130 S. Ct. 876, 895 (2010) (“Today, Citizens United finally learns, two years after the fact, 

whether it could have spoken during the 2008 Presidential primary—long after the opportunity to 

persuade primary voters has passed.”). 

 It is not clear from reading its motion whether the FEC is arguing that this Court’s entry 

of injunctive relief was itself clear error. To the extent that it is, that argument must fail. As 

noted above, the Court of Appeals remanded this case to allow the District Court to enter an 

injunction. And the FEC’s response to the Motion for Entry of Judgment perfectly illustrated 

why such an injunction is needed: The FEC, left to its own devices, would provide Plaintiffs 

with no injunctive relief whatsoever and would instead grant them only a narrow declaratory 

ruling that applied to them and them alone.3

 

 But, as described above, this Court’s entry of an injunction flows directly from the Court 

of Appeals’ decision. Furthermore, the scope of the injunction that this Court entered—which 

reached not just Plaintiffs, but those nonparties who wish to give to SpeechNow.org—was 

entirely proper. In its opinion and judgment, the Court of Appeals repeatedly recognized that 

many people other than the individual Plaintiffs want to donate to SpeechNow.org. 

SpeechNow.org, 599 F.3d at 690 (noting that “seventy-five other individuals had indicated on 

SpeechNow’s website that they were interested in making donations”). The Court of Appeals 

did not limit its holding to only the five individual Plaintiffs, and it is not at all clear it could 

 

3

 In defending the miserly relief that it would afford Plaintiffs, the Federal Election Commission says that enjoining 

a government agency is an “extraordinary remedy” because the government can always presume that an agency will 

comply with a judgment in good faith. While that justification is itself subject to debate, the fact is that courts in the 

D.C. Circuit frequently enter injunctions against the government. See, e.g., Nat’l Treasury Emps Union v. Yeutter, 

918 F.2d 968, 977 (D.C. Cir. 1990) (enjoining the USDA from conducting unconstitutional drug-testing); Humane 

Soc’y of the U.S. v. Johanns, 520 F. Supp. 2d 8, 37-38 (D.D.C. 2007) (permanently enjoining the USDA from 

implementing a rule); Am. Fed’n of Gov’t Emps v. Rumsfeld, 422 F. Supp. 2d 16, 52-53 (D.D.C. 2006) (permanently 

enjoining the implementation of regulations regarding collective bargaining), rev’d on other grounds sub nom. Am. 

Fed’n of Gov’t Emps v. Gates, 486 F.3d 1316 (D.C. Cir. 2007); ACLU v. Mineta, 319 F. Supp. 2d 69, 87-88 (D.D.C. 

2004) (permanently enjoining the Secretary of Transportation from enforcing a statute that violated the First 

Amendment). 

Case 1:08-cv-00248-JDB Document 81 Filed 06/25/10 Page 8 of 13
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have done so in any event. See Citizens United v. FEC, 130 S. Ct. 876, 919 (2010) (Roberts, 

C.J., concurring) (“Regardless whether we label Citizens United’s claim a “facial” or “asapplied” challenge, the consequences of the Court’s decision are the same.”); see also id. at 893. 

Instead, it held “that the contribution limits of 2 U.S.C. § 441a(a)(1)(C) and 441a(a)(3) are 

unconstitutional as applied to individuals’ contributions to SpeechNow.” SpeechNow.org, 599 

F.3d at 689 (emphasis added). 

 The practical effect of the FEC’s proposed relief would be to vitiate the Court of 

Appeals’ decision and render this case a nullity. The FEC admits that it may not enforce the 

contribution limits “against these very plaintiffs” on res judicata and collateral estoppel grounds. 

Def.’s Opp’n to Mot. for Entry of J. at 8. But nowhere does the FEC even imply that it would 

refrain from enforcing the limits against nonparties who give to SpeechNow.org. Indeed, the 

FEC plainly states that under the principle of intercircuit nonacquiescence, it retains the authority 

to “pursue similar claims in different circuits against non-parties to prior judgments.” Def.’s 

Opp’n to Mot. for Entry of J. at 7. 

 In effect, the FEC’s approach would turn the Court of Appeals’ opinion into little more 

than a pyrrhic victory for Plaintiffs: while SpeechNow.org would have a First Amendment right 

to take unlimited contributions from anybody, only David Keating, Fred Young, and the 

individual Plaintiffs could actually make such contributions. Anyone else who gave more than 

$ 5,000 would run the risk of a possible FEC enforcement action. This schizophrenic outcome 

would chill SpeechNow.org from vigorously exercising its First Amendment rights. 

 Thus, the District Court properly followed the clear instructions of the Court of Appeals 

when it permanently enjoined the FEC “from enforcing the contribution limits . . . and any 

implementing regulations against SpeechNow.org, the individual Plaintiffs, and others who wish 

Case 1:08-cv-00248-JDB Document 81 Filed 06/25/10 Page 9 of 13
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to contribute to SpeechNow.org.”4

 Order Granting Pls.’ Mot. for Entry of J. at 1-2, 

SpeechNow.org v. FEC, No. 1:08-cv-00248 (May 26, 2010). Indeed, given the unanimous 

decision of the en banc Court of Appeals and the strong language in its opinion and judgment, it 

would have been error for the District Court to not enter such relief. 

III. Because the Court of Appeals Already Declared that Applying the PoliticalCommittee Requirements to SpeechNow.org is Constitutional, this Court Properly 

Refrained from Entering a Redundant Declaration. 

Although Plaintiffs prevailed on their contribution-limits claims before the D.C. Circuit, 

the Court of Appeals denied their request for a declaration stating that they need not register, 

organize, and report as a political committee. In its judgment, the Court stated that “there is no 

constitutional infirmity in the application of the organizational, administrative, and reporting 

requirements set forth in certified questions 4 and 5.” Judgment at 1, SpeechNow.org v. FEC, 

599 F.3d 686 (D.C. Cir. 2010) (Nos. 08-5223, 09-5342). Plaintiffs respectfully disagree with 

this facet of the D.C. Circuit’s opinion. Until such time as the en banc Court of Appeals or the 

Supreme Court overrules it, however, Plaintiffs recognize that SpeechNow.org must register as a 

political committee once it takes in more than $1,000 in contributions. 

The FEC now complains—without citing to any rule of law in support of its point—that 

this Court’s final judgment should have explicitly stated that the political-committee 

requirements may be constitutionally applied to Plaintiffs. Mot. to Alter or Amend the J. at 4-5. 

But this position makes no sense because the Court of Appeals upheld the political-committee 

requirements as applied to Plaintiffs. See Judgment at 1, SpeechNow.org v. FEC, 599 F.3d 686 

 

4

 Despite the FEC’s claims that “it plainly cannot enforce the relevant implementing regulations,” that is true only as 

to the Plaintiffs to this action. Just as the FEC did not disclaim any intent to enforce the statutes as to nonparties 

who wished to give to SpeechNow.org, neither did it claim that it would not continue to enforce its regulations 

against nonparties. The District Court’s decision to enjoin these implementing regulations therefore was entirely 

reasonable. Moreover, if the FEC is correct, then there is no harm in entering an injunction and no good reason not 

to do so. As a result, even if the FEC were correct in claiming it cannot enforce its regulations, its argument would 

still not meet the strict standards of Rule 59(e). 

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(D.C. Cir. 2010) (Nos. 08-5223, 09-5342). That decision maintained the status quo; there was no 

reason and no good grounds for the district court to enter a judgment declaring that existing 

statutes that were not unconstitutional before the D.C. Circuit’s decision are still not 

unconstitutional. The FEC never filed a counterclaim in this action or asked for a declaratory 

ruling that the organizational, administrative, and continuous reporting requirements were 

constitutional. As a result, it is not entitled to such a judgment. The FEC’s argument is thus 

wrong and does not meet the strict standards under Rule 59(e). 

CONCLUSION 

For the reasons detailed in this response, and to let SpeechNow.org operate without 

concern that the FEC will harangue and pursue its contributors, Plaintiffs respectfully request 

that this Court deny Defendant Federal Election Commission’s motion to alter or amend the 

judgment. 

Dated: June 25, 2010. 

Respectfully submitted, 

/s/ Steven M. Simpson

Steven M. Simpson (DC Bar No. 462553) 

William H. Mellor (DC Bar No. 462072) 

Robert Gall (DC Bar No. 482476) 

Robert P. Frommer (DC Bar No. 497308) 

Paul M. Sherman (DC Bar No. 978663) 

INSTITUTE FOR JUSTICE

901 N. Glebe Road, Suite 900 

Arlington, VA 22203 

Tel: (703) 682-9320 

Fax: (703) 682-9321 

Email: ssimpson@ij.org 

Stephen M. Hoersting* 

Bradley A. Smith* 

CENTER FOR COMPETITIVE POLITICS

124 W. Street South, Suite 201 

Case 1:08-cv-00248-JDB Document 81 Filed 06/25/10 Page 11 of 13
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Alexandria, VA 22314 

Tel: (703) 894-6800 

Email: shoersting@campaignfreedom.org, 

BSmith@law.capital.edu 

Attorneys for Plaintiffs

 *Admitted Pro Hac Vice 

Case 1:08-cv-00248-JDB Document 81 Filed 06/25/10 Page 12 of 13
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CERTIFICATE OF SERVICE

 I HEREBY CERTIFY that on this 25th Day of June 2010, a true and correct copy of 

PLAINTIFFS’ RESPONSE TO DEFENDANT FEDERAL ELECTION COMMISSION’S 

MOTION TO ALTER OR AMEND THE JUDGMENT was filed electronically using the court’s 

ECF system and sent via the ECF electronic notification system to the following counsel of 

record: 

Robert W. Bonham, III 

David B. Kolker 

Steve N. Hajjar 

Kevin Deeley 

FEDERAL ELECTION COMMISSION

999 E. Street, N.W. 

Washington, DC 20463 

 /s/ Steven M. Simpson

 Attorney for Plaintiffs 

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