No. 11-1760

United States Court of Appeals for the Fourth Circuit

____________

The Real Truth About Obama, Inc., Plaintiff-Appellant

v.

Federal Election Commission and

United States Department of Justice, Defendants-Appellees

____________

Appeal from the United States District Court for the

Eastern District of Virginia, Richmond Division

____________

Appellant’s Brief

____________

Michael Boos

LAW OFFICE OF MICHAEL BOOS

Suite 313

4101 Chain Bridge Road

Fairfax, VA 22030

703/691-7717

Counsel for Plaintiff-Appellant

James Bopp, Jr.

Richard E. Coleson

Kaylan L. Phillips

BOPP, COLESON & BOSTROM

1 South Sixth Street

Terre Haute, IN 47807-3510

812/232-2434

Lead Counsel for Plaintiff-Appellant

Appeal: 11-1760 Document: 20 Date Filed: 09/19/2011 Page: 1 of 70
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

DISCLOSURE OF CORPORATE AFFILIATIONS AND OTHER INTERESTS

Only one form needs to be completed for a party even if the party is represented by more than

one attorney. Disclosures must be filed on behalf of all parties to a civil, agency, bankruptcy or

mandamus case. Corporate defendants in a criminal or post-conviction case and corporate amici

curiae are required to file disclosure statements. Counsel has a continuing duty to update this

information.

No. 11-1760 Caption: The Real Truth About Obama, Inc. v. FEC & DOJ

Pursuant to FRAP 26.1 and Local Rule 26.1,

Real Truth About Obama who is Appellant , makes the following disclosure:

(name of party/amicus) (appellant/appellee/amicus)

1. Is party/amicus a publicly held corporation or other publicly held entity? D YES [Zj NO

2. Does party/amicus have any parent corporations? D YES[ZjNO

If yes, identify all parent corporations, including grandparent and great-grandparent

corporations:

3.

4.

5.

Is 10% or more of the stock of a party/amicus owned by a publicly held c0!E..0ration or

other publicly held entity? U YES[ZjNO

If yes, identify all such owners:

Is there any other publicly held corporation or other publicly held entity that has a direct

financial interest in the outcome of the litigation (Local Rule 26.1(b))? DYES[Zj NO

If yes, identify entity and nature of interest:

Is party a trade association? (amici curiae do not complete this question) DYES [ZjNO

If yes, identify any publicly held member whose stock or equity value could be affected

substantially by the outcome of the proceeding or whose claims the trade association is

pursuing in a representative capacity, or state that there is no such member:

6. Does this case arise out of a bankruptcy proceeding? DYES[ZjNO

If yes, identify any trustee and the membel'S of any creditors' committee:

CERTIFICATE OF SERVICE

**************************

I certify that on 9/19/2011 the foregoing document was served on all parties or their

counsel of record through the CM/ECF system if they are registered users or, if they are not, by

serving a true and correct copy at the addresses listed below:

/s/ Richard E. Coleson

(signature)

9/19/2011

(date)

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Table of Contents

Table of Authorities.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

Jurisdictional Statement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Statement of Issues. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Statement of Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Statement of Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Summary of Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

I. FEC’s Alternate “Expressly Advocating” Definition Is Vague,

Overbroad, Beyond Statutory Authority, and Void... . . . . . . . . . . . . . . . . 14

A. Standards of Review.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

B. Section 100.22(b) Fails the Requirement that Government Only

Regulate Speech that Is Election-Influencing by Being Unambiguously Campaign Related.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

C. “Express Advocacy” Requires “Magic Words.”. . . . . . . . . . . . . . . . . 23

D. Section 100.22(b) Is Beyond Statutory Authority... . . . . . . . . . . . . . . 32

E. Section 100.22(b) Is Unconstitutionally Vague and Overbroad... . . . 34

F. Applying Section 100.22(b) to RTAO’s Ads Highlights the Vagueness... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

II. FEC’s PAC-Status Policy Is Vague, Overbroad, Beyond Authority, and

Void.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

A. Standards of review.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

i

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B. Citizens Declared PAC Burdens “Onerous” and Rejected PACs

as Adequate Vehicles for Corporate Political Speech and

Vague, Multi-Factor Tests.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

C. FEC Must Prove Its Policy Only Regulates Activity that Is

Election-Influencing by Being Unambiguously Campaign Related... 50

D. Major Purpose Is Based on “an Empirical Judgment [that] an Organization Primarily Engages in Regulable, Election-Related

Speech.”. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

E. FEC Employs an Impermissible Major-Purpose Policy.. . . . . . . . . . . 55

Conclusion.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

Oral Argument.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

Addendum (11 C.F.R. 100.22)

ii

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Table of Authorities

Cases

ACLU of Nevada v. Heller, 378 F.3d 979 (9th Cir. 2004). . . . . . . . . . . . . . . . . . . 27

Anderson v. Spear, 356 F.3d 651 (6th Cir. 2004).. . . . . . . . . . . . . . . . . . . . . . . . . 27

Austin v. Mich. State Chamber of Commerce, 494 U.S. 652 (1990). . . . . . . . 47-48

Broward Coal. of Condos., Homeowners Ass’ns and Cmty. Orgs., Inc. v.

Browning, No. 4:08cv445, 2009 WL 1457972 (N.D. Fla. May 22, 2009). . . 28

Brownsburg Area Patrons Affecting Change v. Baldwin, 137 F.3d 503 (7th

Cir. 1998).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Brownsburg Area Patrons Affecting Change, 714 N.E. 2d 135 (Ind. 1999). . . . . 27

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

California Pro-Life Council v. Getman, 328 F.3d 1088 (9th Cir. 2003). . . . . 27, 30

Center for Individual Freedom v. Carmouche, 449 F.3d 655 (5th Cir. 2006).. . . 27

Center for Individual Freedom v. Tennant, No. 08-190, 2011 WL 2912735

(S.D. W. Va. July 18, 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 35-37

Chamber of Commerce v. Moore, 288 F.2d 187 (5th Cir. 2002). . . . . . . . . . . 27-28

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

Colorado Right to Life Committee v. Coffman, 498 F.3d 1137 (10th Cir. 2007)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

Davis v. FEC, 554 U.S. 724 (2008).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

EMILY’s List v. FEC, 581 F.3d 1 (D.C. Cir. 2009. . . . . . . . . . . . . . . . . . . . . . . . . 13

Faucher v. FEC, 928 F.2d 468 (1st Cir. 1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

iii

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FEC v. Central Long Island Tax Reform, 616 F.2d 45 (2d Cir.1980). . . . . . . . . . 27

FEC v. Christian Action Network, 110 F.3d 1049 (4th Cir. 1997).. . . . . . 26, 30-32

FEC v. Furgatch, 807 F.2d 857 (9th Cir. 1987). . . . . . . . . . . . . . . . . . . . . 27, 30-32

FEC v. Massachusetts Citizens for Life, 479 U.S. 238 (1986). . . . 24-25, 28, 48-55

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

Gov. Gray Davis Comm. v. American Taxpayers Alliance, 102 Cal. App. 4th

449 (Cal. Ct. App. 2002).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Holder v. Humanitarian Law Project, 130 S.Ct. 2705 (2010). . . . . . . . . . . . . . . . 16

Iowa Right to Life Committee v. Williams, 187 F.3d 963 (8th Cir. 1999). . . . . . . 27

Lawrence v. Chater, 516 U.S. 163 (1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

League of Women Voters of Colo. v. Davidson, 23 P.3d 1266 (Colo. App. 2001)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Maine Right to Life Committee v. FEC, 914 F.Supp. 8 (D. Me. 1996). . . . . . 28, 33

Maine Right to Life Committee v. FEC, 98 F.3d 1 (1st Cir. 1996).. . . . . . . . . 28, 33

Marks v. United States, 430 U.S. 188 (1977). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

McConnell v. FEC, 540 U.S. 93 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . . 26-27, 34

National Right to Work Legal Defense and Education Foundation v. Herbert,

581 F. Supp. 2d 1132 (D. Utah 2008).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

New Mexico Youth Organized v. Herrera, 611 F.3d 669 (10th Cir. 2010). . . 28, 53

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

Osterberg v. Peca, 12 S.W. 3d 31 (Tex. 2000).. . . . . . . . . . . . . . . . . . . . . . . . . . . 27

iv

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Right to Life of Duchess County, lnc. v. FEC, 6 F.Supp.2d 248 (S.D. N.Y. 1998)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 33

RTAO v. FEC, 130 S.Ct. 2371 (2010).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 23, 38

RTAO v. FEC, 2008 WL 4416282 (E.D. Va. Sept. 24, 2008). . . . . . . . . . . . . . . . . 2

RTAO v. FEC, 575 F.3d 342 (4th Cir. 2009). . . . . . . . . . . . . . . . . . . . . . . . 2, 13, 22

RTAO v. FEC, 607 F.3d 355 (4th Cir. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 22

United States v. Whorley, 550 F.3d 326 (4th Cir. 2008).. . . . . . . . . . . . . . . . . . . . 15

Virginia Society for Human Life v. FEC, 263 F.3d 379 (4th Cir. 2001). . . . . . . . 26

Washington State Grange v. Washington State Republican Party, 552 U.S. 442

(2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Washington State Republican Party v. Washington State Public Disclosure

Comm’n, 4 P.3d 808 (Wash. 2000).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Constitutions, Statutes & Regulations

2 U.S.C. 431.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-5, 11, 14, 19, 27-28, 42

2 U.S.C. 431(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 15, 53

2 U.S.C. 431(8)(A)(i). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

2 U.S.C. 431(9). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

2 U.S.C. 431(9)(A)(i). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 24

2 U.S.C. 431(17). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 24, 32

2 U.S.C. 434(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

2 U.S.C. 434(f)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 33

v

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2 U.S.C. 434(f)(3)(B)(ii). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

2 U.S.C. 441b.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24-25, 49

2 U.S.C. 441d.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

5 U.S.C. 702.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-2, 14, 22

11 C.F.R. 100.22(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

11 C.F.R. 100.22(b).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

11 C.F.R. 100.22(b)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

11 C.F.R. 100.5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

11 C.F.R. 100.57. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 5, 10, 13

11 C.F.R. 109.21(c)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

11 C.F.R. 109.21(c)(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

11 C.F.R. 114.15. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 13, 38-39, 50

26 U.S.C. 527.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

28 U.S.C. 1291. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

28 U.S.C. 1331. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

28 U.S.C. 2201. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Public Law 94-283, 90 Stat. 479.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

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

U.S. Const. amend. V. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-2, 14

vi

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Other Authorities

FEC Advisory Opinion 2005-13 (Emily’s List). . . . . . . . . . . . . . . . . . . . . . . . . . . 10

FEC Campaign Guide for Corporations and Unions (2007).. . . . . . . . . . . . . . . . 46

FEC Campaign Guide for Nonconnected Committees (2008). . . . . . . . . . . . . . . . 46

FEC, Best Practices for Committee Management (no date).. . . . . . . . . . . . . . . . . 46

FEC, Committee Treasurers (updated 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

FEC, Coordinated and Independent Expenditures (updated 2011). . . . . . . . . . . . 47

FEC, Electioneering Communications (updated 2009). . . . . . . . . . . . . . . . . . . . . 47

FEC, “Coordinated Communications,” 75 Fed. Reg. 55947 (Sept. 15, 2010). . . . 38

FEC, “Express Advocacy . . . ,” 60 Fed. Reg. 35291 (July 6, 1995). . . . . . . . . . . 30

FEC, “Political Committee Status . . . ,” 69 Fed. Reg. 68056 (Nov. 23, 2004)

(“PAC-Status 1”). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 44

FEC, “Political Committee Status,” 72 Fed. Reg. 5595 (Feb. 7, 2007) (“PACStatus 2”). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 10, 44, 55-56

http://fec.gov/pages/brochures/best_practices.pdf. . . . . . . . . . . . . . . . . . . . . . . . . 46

http://fec.gov/pages/brochures/committee_treasurers_brochure.pdf. . . . . . . . . . . 46

http://fec.gov/pages/brochures/ec_brochure.pdf.. . . . . . . . . . . . . . . . . . . . . . . . . . 47

http://fec.gov/pages/brochures/ie_brochure.pdf. . . . . . . . . . . . . . . . . . . . . . . . . . . 47

http://fec.gov/pdf/colagui.pdf. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

http://fec.gov/pdf/nongui.pdf. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

http://saos.nictusa.com/saos/searchao.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

vii

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http://sers.nictusa.com/fosers/showpdf.htm?docid=4963.. . . . . . . . . . . . . . . . . . . 42

http://www.justice.gov/osg/briefs/2009/0responses/2009-0724.resp.pdf. . . . . . . 39

https://cisiweb.scc.virginia.gov/z_container.aspx. . . . . . . . . . . . . . . . . . . . . . . . . . 3

James Bopp, Jr. & Richard E. Coleson, Comments of the James Madison Center for Free Speech on Notice of Proposed Rulemaking 2007-16 (Electioneering Communications) (Sept. 28, 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

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Jurisdictional Statement

The district court had jurisdiction over all issues on appeal under 28

U.S.C. 1331 as a case arising under the First and Fifth Amendments, the Federal

Election Campaign Act (“FECA”), 2 U.S.C. 431 et seq., the judicial review provisions of the Administrative Procedure Act (“APA”), 5 U.S.C. 702-06, and the Declaratory Judgment Act, 28 U.S.C. 2201-02.1

This Court has jurisdiction over this appeal of the district court’s June 16,

2011 order (Joint Appendix (“JA–”) 81) denying summary judgment to Real Truth

About Obama, Inc. (“RTAO”) and granting summary judgment to the Federal

Election Commission (“FEC’) and Department of Justice (“DOJ”). 28 U.S.C.

1291. Notice of appeal was filed July 15. JA–82.

Statement of Issues

1. Whether FEC’s alternate “expressly advocating” definition, 11 C.F.R.

100.22(b), is unconstitutionally overbroad, void for vagueness, and contrary to

law, facially and as applied to RTAO’s intended activities, because it violates the

First and Fifth Amendments of the U.S. Constitution, exceeds statutory authority

under FECA, and should be declared void under the APA.

 Though the district court devotes Part II of its opinion to holding that

1

“RTAO’s Claims for Preliminary Relief Are Moot,” JA–62-65, it lacked jurisdiction to decide the issue since RTAO formally withdrew the motion for preliminary

injunction at oral argument. JA–55 (Tr. 2:21-25).

1

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2. Whether FEC’s enforcement policy regulating determination of “political

committee” (“PAC”) status is unconstitutionally overbroad, void for vagueness,

and contrary to law, facially and as applied to RTAO’s intended activities, because

it violates the First and Fifth Amendments, exceeds statutory authority under

FECA, and should be declared void under the APA.

Statement of Case

On July 30, 2008, RTAO filed a pre-enforcement lawsuit against FEC and

DOJ, challenging three FEC regulations and FEC’s enforcement policy for determining political committee (“PAC”) status, facially and as applied to RTAO’s intended activities. JA–57. The district court denied two motions for preliminary

injunction. JA–60; RTAO v. FEC, 2008 WL 4416282 (E.D. Va. Sept. 24, 2008).

On August 5, 2009, this Court affirmed the preliminary-injunction denials. JA–61;

RTAO v. FEC, 575 F.3d 342 (4th Cir. 2009). RTAO petitioned the Supreme Court

for a writ of certiorari, which was granted, this Court’s judgment vacated, and “the

case remanded . . . for further consideration in light of Citizens United v. Federal

Election Comm’n, 558 U.S. ----, 130 S.Ct. 876 . . . (2010) [(“Citizens”)] and the

Solicitor General’s suggestion of mootness.” RTAO v. FEC, 130 S.Ct. 2371

(2010).

2

 The district court erroneously says that RTAO “has withdrawn” its chal2

lenges to 11 C.F.R. 100.57 and 114.15. JA–60 (n.3). Actually, those became moot.

See infra at 13. In its opening summary judgment brief, RTAO recited its affirma2

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On June 8, 2010, this Court reissued only the parts of its vacated opinion

“stating the facts and articulating the standard for issuance of preliminary injunctions,” leaving the substantive issues for the district court to consider first. RTAO

v. FEC, 607 F.3d 355 (4th Cir. 2010) (per curiam).

On June 16, 2011, the district court denied summary judgment to RTAO and

granted it to FEC and DOJ on both counts. JA–81. On July 15, RTAO noticed appeal of the summary-judgment order. JA–82.

Statement of Facts

Plaintiff RTAO is a nonstock, nonprofit, Virginia corporation whose principal

place of business was Richmond, Virginia (JA–21), but now is Fredericksburg,

Virginia. See https://cisiweb.scc.virginia.gov/z_container.aspx (searchable).

Defendant FEC is the federal government agency with enforcement authority

over FECA. Its headquarters are located in Washington, DC. FEC promulgated the

regulation and adopted the enforcement policy at issue in this case. JA–21-22.

Defendant DOJ is an executive department of the United States government,

with the Attorney General as its head. It’s headquarters are in Washington, DC. It

has control over all criminal prosecutions and civil suits in which the United

States has an interest, including criminal enforcement authority over the applicable

federal laws at issue in this case. JA–22.

tion to the U.S. Supreme Court that these claims were moot. Doc. 126 at 3.

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RTAO was incorporated in July 2008. JA-22. It is nonprofit under 26 U.S.C.

527, meaning it is a “political organization” under the Internal Revenue Code that

may receive donations and make disbursements for certain identified political purposes without having to pay corporate income taxes. JA–22.

RTAO is not properly a “political committee” (“PAC”) under FECA because

none of its communications should qualify as either a “contribution” or “expenditure,” aggregating more than $1,000 during a calendar year, which is a trigger requirement for PAC status under 2 U.S.C. 431(4). See also 11 C.F.R. 100.5 (PAC

definition). JA–22.

RTAO is also not properly a PAC because, even if it were to reach the $1,000

contribution or expenditure threshold to trigger statutory PAC status under FECA,

RTAO does not meet the constitutionally required “major purpose” test. See

Buckley v. Valeo, 424 U.S. 1, 79 (1976) (limiting imposed PAC burdens to “organizations that are under the control of a candidate or the major purpose of which is

the nomination or election of a candidate” because “[t]hey are, by definition, campaign related” (emphasis added)). JA–22.

As set out in its Articles of Incorporation, RTAO’s purposes are as follows:

The specific and primary purposes for which this corporation is

formed and for which it shall be exclusively administered and operated are to receive, administer and expend funds in connection with

the following:

1. To provide accurate and truthful information about the public

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policy positions of Senator Barack Obama;

2. To engage in non-partisan voter education, registration and

get out the voter activities in conjunction with federal elections;

3. To engage in any activities related to federal electionsthat are

authorized by and are consistent with Section 527 of the Internal

Revenue Code except that the corporation shall not:

(a) expressly advocate the election or defeat of any clearly identified candidate for public office, or

(b) make any contribution to any candidate for public office; and

4. To engage in any and all lawful activities incidental to the

foregoing purposes except as restricted herein.

JA–23.

However, RTAO has a reasonable belief that it will be deemed a PAC by FEC

and DOJ because of (a) FEC’s use of the challenged provision at 11 C.F.R.

100.22(b) (along with the sort of approach taken by 11 C.F.R. 100.57, which is no

longer enforced but is the type of consideration employed by the FEC PAC-status

policy) and FEC’s enforcement policy concerning PAC status, see FEC, “Political

Committee Status,” 72 Fed. Reg. 5595 (Feb. 7, 2007) (“PAC-Status 2”) (emphasizing the need for “flexibility” in determining PAC status based on a wide range of

factors in a case-by-case analysis of “major purpose”), to deem several 527 organizations to be PACs and in violation of FECA, see id. at 5605 (listing Matters Under Review (“MURs”) in which this occurred); and (b) the similar nature of

RTAO and its planned activities to some of those in the MURs cited in PACStatus 2. JA–23.

One of the ways that RTAO intended to provide accurate and truthful informa5

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tion about the public policy positions of Senator Obama was by creating a website

at www.therealtruthaboutobama.com, where accurate statements about his public

policy positions would be stated and documented. JA–24, 43-48.

RTAO intended to produce an audio ad titled “Change” and place it on its

website, which stated the following:

(Woman’s voice) Just what is the real truth about Democrat

Barack Obama’s position on abortion?

(Obama-like voice) Change. Here is how I would like to change

America . . . about abortion:

• Make taxpayers pay for all 1.2 million abortions performed in

America each year

• Make sure that minor girls’ abortions are kept secret from

their parents

• Make partial-birth abortion legal

• Give Planned Parenthood lots more money to support abortion

• Change current federal and state laws so that babies who survive abortions will die soon after they are born

• Appoint more liberal Justices on the U.S. Supreme Court.

One thing I would not change about America is abortion on demand,

for any reason, at any time during pregnancy, as many times as a

woman wants one.

(Woman’s voice). Now you know the real truth about Obama’s

position on abortion. Is this the change that you can believe in?

To learn more real truth about Obama, visit www.The

RealTruthAboutObama.com. Paid for by The Real Truth About

Obama.

JA–24-25.

RTAO intended to produce another audio ad, titled “Survivors,” and place it

on its website, which stated the following:

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NURSE: The abortion was supposed to kill him, but he was born

alive. I couldn’t bear to follow hospital policy and leave him on a

cold counter to die, so I held and rocked him for 45 minutes until he

took his last breath.

MALE VOICE: As an Illinois Democratic State Senator, Barack

Obama voted three times to deny lifesaving medical treatment to

living, breathing babies who survive abortions.For four years, Obama

has tried to cover-up his horrendous votes by saying the bills didn’t

have clarifying language he favored. Obama has been lying. Illinois

documents from the very committee Obama chaired show he voted

against a bill that did contain the clarifying language he says he favors.

Obama’s callousness in denying lifesaving treatment to tiny babies

who survive abortions reveals a lack of character and compassion that

should give everyone pause.

Paid for by The Real Truth About Obama, Inc.

JA–25, 18-19.

RTAO also intended to broadcast Change and Survivors (collectively “Ads”)

as radio advertisements on the Rush Limbaugh and Sean Hannity radio programs

in heartland states during “electioneering communication” blackout periods thirty 3

days before the Democratic National Convention (July 29-Aug. 28, 2008) and

sixty days before the general election (Sept. 5-Nov. 4, 2008), so the Ads would

have met the electioneering communication definition. JA–25, 19.

RTAO also intended to create on its website digital postcards setting out Senator Obama’s public policy positions on abortion, and viewers would have been

 Electioneering communications are essentially non-express-advocacy, tar- 3

geted communications mentioning candidates in 30- and 60-day periods before

primary and general elections. See 2 U.S.C. 434(f)(3).

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able to send these postcards to friends from within the website. One of the planned

postcards would have been similar to the Change ad, except it would have been

done in first person and “signed” by “Barack Obamabortion.” The postcards

would have been designed to be the sort of catchy, edgy, entertaining items that

are popular for circulation on the Internet. JA–25, 44-48.

To raise money for funding its website and content, the production of the Ads,

the employment of persons knowledgeable about Internet viral marketing, and the

broadcasting of the Ads, RTAO needed to raise funds by telling potential donors

about itself and its projects. One of the ways that RTAO intended to raise funds

was by use of the following communication:

Dear x,

I need your help. We’re launching a new project to let the public

know the real truth about the public policy positions of Senator

Barack Obama.

Most people are unaware of his radical pro-abortion views. For

example, when he was a state senator in Illinois, he voted against a

state bill like the federal Born Alive Infant Protection Act. That bill

merely required that, if an abortionist was trying to abort a baby and

the baby was born alive, then the abortionist would have to treat that

baby as any other newborn would be treated. Under thislaw, the baby

would be bundled off to the newborn nursery for care, instead of

being left on a cold table in a back room until dead. It seems like

everyone would support such a law, but, as an Illinois State Senator,

Obama did not. There are lots of other examples of his radicalsupport

for abortion, and we need to get the word out. That’s where you come

in.

A new organization has just been formed to spearhead thisimportant public-information effort. It’s called The Real Truth About

Obama. We plan to do some advertising. Since we’re not a PAC,

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there won’t be any “vote for” or “vote against” type of ads—just the

truth, compellingly told.

A central planned project is directed at the world of the Internet.

We’ve already reserved www.TheRealTruthAboutObama.com to set

up a website. Here’s the exciting part. The website will feature a

weekly postcard “signed” by “Barack Obamabortion.” Like that?

While you are visiting the website, you can send the postcard by

email to anyone you designate. What could be easier?! And the postcards will be done in a catchy, memorable manner—the sort of thing

that zips around the Internet. Each postcard will feature well-documented facts about Obama’s views on abortion.

The postcards will also send people to the website for more real

truth about Obama, but we also plan to do a radio ad to do that, too.

This radio ad will give the real truth about Obama’s abortion position—all properly documented, of course. Notice the “Truth” part of

our name.

Of course it takes money to develop, host, and maintain a hottopic website, and to hire the people who specialize in getting things

noticed on the Internet (it’s called viral marketing). So we need your

help. We need for you to send us money. As much as you can donate.

Right away. We need to get the word out. We know how. We’re ready

to roll. Now we need you.

Your friend for truth,

x

P.S.—Please send your check today. Time is of the essence. Please

send the largest gift you can invest in this vital project. Together we

can get the word out.

JA–26-27.

RTAO intended to raise more than $1,000 with this fundraising communication and to disburse more than $1,000 both to broadcast the Ads and to place them

before the public on RTAO’s website. JA–27.

However, RTAO was chilled from proceeding with these activities because it

reasonably believed that it would be subject to an FEC and DOJ investigation and

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a possible enforcement action potentially resulting in civil and criminal penalties,

based on the fact that FEC has deemed 527s to be PACs, based on (a) a rule defining “express advocacy” in a vague and overbroad manner, 11 C.F.R. 100.22(b)

(broad, contextual express-advocacy test), that might have made the Ads “independent expenditures” and (b) a vague and overbroad approach to determining

whether an organization meets Buckley’s major-purpose test for imposing PAC

status. See FEC, “Political Committee Status . . . ,” 69 Fed. Reg. 68056 (Nov. 23,

2004) (“PAC-Status 1”); PAC-Status 2, 72 Fed. Reg. 5595. JA–27, 19.

4

RTAO was also chilled from proceeding because, if Defendants subsequently

deemed RTAO to have been a PAC while doing its intended activities, then RTAO

would have been required to use “federal funds” (funds raised subject to federal

source and amount restrictions) to send out the fundraising communication, see

FEC Advisory Opinion 2005-13 at 1 (Emily’s List), and RTAO would be in vio- 5

lation for not having used federal funds for the fundraising communication.

JA–23.

RTAO’s chill was heightened by the DOJ’s declaration that investigations and

criminal prosecutions of “knowing and willful” violations of these FECA provisions by 527 corporations was a priority, see JA–27-28, 49-53.

 Some FEC 527 enforcement was based on now-unenforced 11 C.F.R. 100.57.

4

 Advisory opinions are available at http://saos.nictusa.com/saos/searchao.

5

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Consequently, RTAO reasonably feared, if it proceeded with its intended activities: (a) that the Ads (both on RTAO’s website and as broadcast) would be

deemed express advocacy under 11 C.F.R. 100.22(b) and, if RTAO was not

deemed a PAC, it would be in violation of FECA for failing to place disclaimers

on them and failing to file an independent expenditure report; (b) that, if RTAO

was deemed to be a PAC under FEC’s enforcement policy on “political committees” and because publication of the Ads would be considered an “expenditure”

(under 100.22(b)), RTAO would be in violation of FECA for failure to abide by

numerous PAC requirements, including placing disclaimers on the Ads and

RTAO’s website, failure to register and report as a PAC, failure to use federal

funds for fundraising, failure to abide by limits on contributions to PACs, and failure to abide by the source limitations imposed on PACs; and (c) in any event, that

RTAO would suffer an intrusive and burdensome investigation and, possibly, an

enforcement action, potentially leading to civil and criminal penalties. So RTAO

would not proceed with its intended activities unless it received the judicial relief

requested. JA–28, 19.

In addition to the activities set out above, RTAO intends to participate in materially similar activities in the future, including broadcasting ads materially similar

to Change and Survivors. JA–29, 19. RTAO’s chill was and is irreparable harm

because it is the loss of First Amendment rights, and there is no adequate remedy

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at law. JA–29.

Summary of Argument

The Supreme Court remanded this case for reconsideration in light of its decision in Citizens. What did the Court decide in Citizens that made it find a reasonable probability of a different result in this case on remand? Citizens expressly

rejected vague, overbroad tests for regulating core political speech because such

tests chill core political speech. And Citizens pronounced PAC-burdens “onerous,”

holding that they did not provide a constitutionally adequate vehicle for corporation’s core political speech. These holdings control the present case, involving

challenges to a vague and overbroad express-advocacy test and PAC-status policy

that are of a kind with the tests rejected in Citizens. 

FEC’s alternate “expressly advocating” definition, at 11 C.F.R. 100.22(b), is

unconstitutionally vague and overbroad under controlling precedent of the Supreme Court and this Circuit. And it is beyond statutory authority because it is

governed by an “expenditure” definition that uses language that the Supreme

Court has held vague and overbroad in the context of expenditure disclosure and

construed to require “magic words” “express advocacy,” which requirement Congress imported into the “expressly advocating” definition.

FEC’s PAC-status policy is also unconstitutionally vague and overbroad under

controlling precedents of the Supreme Court and this Circuit. It is also beyond

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statutory authority because it is contrary to how binding precedents have construed

the underlying statutes.

Argument

RTAO has even stronger legal arguments than it had in its appeal of a preliminary injunction denial, RTAO v. FEC, 575 F.3d 342. First, RTAO has been proven

right on two of its four original claims, which are of a kind with the remaining

two. The D.C. Circuit held 11 C.F.R. 100.57 unconstitutional and FEC abandoned

enforcement. See EMILY’s List v. FEC, 581 F.3d 1 (D.C. Cir. 2009). The Supreme

Court declared 11 C.F.R. 114.15 “precisely what WRTL sought to avoid,” Citizens,

130 S.Ct. at 896 (referencing FEC v. Wisconsin Right to Life, 551 U.S. 449 (2007)

(“WRTL-II”)), and FEC abandoned enforcement. Yet under the erroneous ap6

proach of the court below, those provisions would remain in effect. Second, by its

grant-vacate-remand (“GVR”) order, the Supreme Court found that there was a

reasonable probability of a different result on remand. Third, Citizens reasserted

7

 The controlling opinion (“WRTL-II” herein) was by Roberts, C.J., joined by

6

Alito, J.). WRTL-II states the holding. See Marks v. United States, 430 U.S. 188,

193 (1977).

7

Where intervening developments, or recent developments that we

have reason to believe the court below did not fully consider, reveal

a reasonable probability that the decision below rests upon a premise

that the lower court would reject given the opportunity for further

consideration, and where it appears that such a redetermination may

determine the ultimate outcome of the litigation, a GVR order is, we

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bright-line protection for issue advocacy and issue groups, repudiating vague,

overbroad, we-know-it-when-we-see-it tests, such as the tests in the claims remaining before this Court.

I. FEC’s Alternate “Expressly Advocating” Definition

Is Vague, Overbroad, Beyond Statutory Authority, and Void.

RTAO challenges the alternate “expressly advocating definition, 11 C.F.R.

100.22(b), as unconstitutionally vague and overbroad under the First and Fifth

8

Amendments to the U.S. Constitution, beyond statutory authority under FECA,

and void under the APA.

FEC’s “expressly advocating” definition defines part of the “independent expenditure” definition, i.e., a non-coordinated “expenditure . . . expressly advocating the election or defeat of a clearly identified candidate.” 2 U.S.C. 431(17).

Independent expenditures require reporting and disclaimers, 2 U.S.C. 434(c) and

believe, potentially appropriate.

Lawrence v. Chater, 516 U.S. 163, 167 (1996) (per curiam) (emphasis added).

 Subpart (a) of Section 100.22 defines “expressly advocating” with the Su8

preme Court’s magic-words approach. See Addendum. Subpart (b) uses this test:

When taken as whole . . . could only be interpreted by a reasonable

person as containing advocacy of the election or defeat of one or

more clearly identified candidate(s) because —(1) The electoral portion of the communication is unmistakable, unambiguous, and suggestive of only one meaning; and (2) Reasonable minds could not

differ as to whether it encourages actions to elect or defeat one or

more clearly identified candidate(s) or encouragessome other kind of

action.

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441d, and can trigger PAC status, 2 U.S.C. 431(4) (PAC definition), which is a

particular concern of RTAO.

A. Standards of Review.

Before its “Standard of Review” discussion, the district court noted that RTAO

challenged 100.22(b) as vague and overbroad and then provided standards of review for facial vagueness and First Amendment facial-overbreadth challenges.

JA–66-67. These tests are part of the review standards. Vagueness challenges must

be resolved before overbreadth is considered because if a provision’s scope cannot

be established it is inherently overbroad. See Buckley, 424 U.S. at 76, 80 (“Vagueness Problems” make law “impermissibly broad”). And whether a provision is

properly tailored to adequate governmental interests can only be considered after

the provision is proven otherwise constitutional and the provision’s scope is established. See id. (resolving vagueness and overbreadth before holding that disclosure

“expenditure” definition “as construed, bears a sufficient relationship to a substantial governmental interest”).

Regarding vagueness, “[a] restriction is unconstitutionally vague on its face if

it fails to give ‘people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits’ or ‘authorizes or even encourages arbitrary and

discriminatory enforcement.’” United States v. Whorley, 550 F.3d 326, 333 (4th

Cir. 2008) (citation omitted). “[W]hen a statute ‘interferes with the right of free

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speech or of association, a more stringent vagueness test should apply.’” Holder v.

Humanitarian Law Project, 130 S.Ct. 2705, 2719 (2010) (citation omitted). And

Citizens requires “objective,” bright-line First Amendment tests, expressly rejecting “ambiguous” and “[multi]-part, [multi]-factor, balancing test[s].” 130 S.Ct. at

895-96.

Regarding First Amendment facial overbreadth, a provision is unconstitutional

if “‘a substantial number of its applications are unconstitutional, judged in relation

to the statute’s plainly legitimate sweep.’” Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 449 n.6 (2008) (citation omitted).

Regarding what may be called “Buckley overbreadth,” government may only

regulate “spending that is unambiguously related to the campaign of a particular

federal candidate.” Buckley, 424 U.S. at 80. See North Carolina Right to Life v.

Leake, 525 F.3d 274, 281-83 (4th Cir. 2008) (“Leake”). The district court ignored

the argument based on this standard.

Regarding statutory authority, if FEC lacks statutory authority, its regulation is

unlawful. The district court ignored the argument based on this standard.

Only after determining that 100.22(b) is not unconstitutionally vague and

overbroad, is unambiguously campaign related, and is not beyond statutory authority would any other standard of review come into play. So as to both provisions at

issue here, there is no reason to reach exacting or strict scrutiny, though strict scru16

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tiny applies (or its functional equivalent).

The district court decided that speech restrictions not banning speech are subject to complaisant exacting scrutiny easily linked to an informational interest.

JA–67-68. But Citizens only applied “exacting scrutiny” in upholding an asapplied challenge to ordinary, non-PAC-style “disclosure,” i.e., “BCRA’s disclaimer and disclosure provisions” for “electioneering communications.” Citizens,

130 S.Ct. at 913. Citizens described that scrutiny as “requir[ing] a ‘substantial relation’ between the disclosure requirement and a ‘sufficiently important’ governmental interest.” Id. at 914. (citation omitted). But that does not mean that any restriction touching on disclosure gets complaisant scrutiny.

The Supreme Court has expressly decided how exacting scrutiny functions in

the disclosure context:

The remaining issue that we must consider is the constitutionality of

§ 319(b)’s disclosure requirements. “[W]e have repeatedly found that

compelled disclosure, in itself, can seriously infringe on privacy of

association and belief guaranteed by the First Amendment.” Buckley,

424 U.S., at 64. As a result, we have closely scrutinized disclosure

requirements, including requirements governing independent expenditures made to further individuals’ political speech. Id., at 75. To

survive this scrutiny, significant encroachments “cannot be justified

by a mere showing of some legitimate governmental interest.” Id., at

64. Instead, there must be “a ‘relevant correlation’ or ‘substantial

relation’ between the governmental interest and the information required to be disclosed,” and the governmental interest “must survive

exacting scrutiny.” Ibid. (footnotes omitted). That is, the strength of

the governmental interest must reflect the seriousness of the actual

burden on First Amendment rights. Id., at 68, 71.

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Davis v. FEC, 554 U.S. 724, 744 (2008) (emphasis added). So where a disclosure

burden is high, scrutiny is high, i.e., either strict or the functional equivalent of

strict scrutiny. Buckley called exacting scrutiny a “strict standard” in the context of

disclosing independent expenditures. 424 U.S. at 75.

Since 100.22(b) can trigger statutory PAC-status, an “onerous” burden, Citizens, 130 S.Ct. at 898, and since Citizens treated onerous PAC requirements under

strict scrutiny, id., the burden is high and scrutiny is high, even if exacting scru9

tiny applies. The alternative would be that states can impose any onerous requirements they desire—the equivalent of the PAC burden for corporations that Citizens rejected, id. at 913—and claim that the informational interest justifies such

burdens under complaisant review. Citizens prohibits that.

Finally, Leake decided two issues virtually identical to those at issue here and

the decision did not turn on whether there was a ban. Leake said that the definitions of “expenditure” and “contributions” (which contained the unconstitutional

“context prong” in its definitions) affected “[m]any of North Carolina’s campaign

finance regulations—including, for example, reporting requirements and contribution limits . . . .” 525 F.3d at 280. So the district court should have simply recited

Part II.B of Leake, id. at 281-83, the controlling analysis, and then followed that

 The imposition of PAC-status or PAC-style burdens alone requires strict

9

scrutiny. See infra at 46-49.

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analysis in striking down two provisions very similar to those at issue in Leake.

B. Section 100.22(b) Fails the Requirement that Government Only Regulate

Speech that Is Election-Influencing by Being Unambiguously Campaign

Related.

The First Amendment forbids Congress from regulating core political speech

in just any way it wants. In enacting FECA under its constitutional power to regulate elections, Congress understood that it could only regulate clearly electioninfluencing speech. This is clear in numerous definitions, including the definitions

of two central things that FECA regulates, “contributions” and “expenditures.”

Both regulate transactions “for the purpose of influencing any election for Federal

office.” 2 U.S.C. 431(8)(A)(i) and (9)(A)(i).

In Buckley, the Supreme Court recognized the authority of Congress to regulate federal elections, 424 U.S. at 13, then considered the constitutionality of a

statute requiring the disclosure of expenditures. The Court described what was

required:

Section 434(e) requires “(e)very person (other than a political committee or candidate) who makes contributions or expenditures” aggregating over $100 in a calendar year “other than by contribution to a

political committee or candidate” to file a statement with the Commission. Unlike the other disclosure provisions, this section does not

seek the contribution list of any association. Instead, it requires direct

disclosure of what an individual or group contributes or spends.

424 U.S. at 74-75 (footnote omitted). The Court held that while the disclosure provision might be justified by governmental interests if otherwise constitutional, id.

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at 75-76, the expenditure and contribution definitions had vagueness and overbreadth problems: “‘Contributions’ and ‘expenditures’ are defined in parallel provisions in terms of the use of money or other valuable assets ‘for the purpose of

. . . influencing’ the nomination or election of candidates for federal office. It is

the ambiguity of this phrase that poses constitutional problems.” Id. at 77 (footnote omitted). This had to be resolved first. Id. at 76-77.

Buckley imposed an unambiguously-campaign-related construction on the

purpose-of-influencing-elections language to save it from unconstitutionality. The

problem it addressed was whether “the relation of the information sought to the

purpose of the Act [regulating elections] may be too remote,” and, therefore,

“impermissibly broad.” Id. at 80 (emphasis added). The Court required that government restrict its election-related laws to reach only First Amendment activities

that are “unambiguously related to the campaign of a particular federal candidate,”

id. (emphasis added), in short, “unambiguously campaign related,” id. at 81 (emphasis added). Thus, any provision requiring disclosure of expenditures that uses

the purpose-of-influencing-elections language is subject to this construction and is

vague and overbroad unless given it. Moreover, since this is a construction of statutory language still used in the expenditure definition, any regulation that goes

beyond this construction is beyond statutory authority.

From this requirement, the Supreme Court derived two tests that govern this

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case: (1) the major-purpose test, which determines which groups may be treated as

“political committees,” id. at 79 (“organizations that are under the control of a candidate or the major purpose of which is the nomination or election of a candidate”), and (2) the express-advocacy test, which determines which communications may be treated as purpose-of-influencing “independent expenditures,” id. at

80.

In Leake, this Court recognized this unambiguously-campaign-related requirement as the controlling analysis and as requiring a magic-word, express-advocacy

test for independent expenditures and a narrow appeal-to vote test, applying only

to statutory electioneering communications:

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 usesspecific election-related words.Second,

“the functional equivalent of express advocacy,” defined as an

“electioneering communication” that “issusceptible of no reasonable

interpretation other than as an appeal to vote for or against a specific

candidate.” This latter category, in particular, has the potential to

trammel vital political speech, and thus regulation of speech as “the

functional equivalent of express advocacy” warrants careful judicial

scrutiny.

525 F.3d at 282-83 (emphasis added).

Given Leake’s holding, 100.22(b) fails as a matter of law because it does not

fit the approved categories and because it relies on a test somewhat like the

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appeal-to-vote test that Leake said applied only to electioneering communications

(and may “trammel . . . speech”). Leake held that the unambiguously-campaignrelated requirement mandates a narrow major-purpose test for determining PAC

status. Id. at 287-90. Applying these holdings readily reveals that the challenged

regulations and enforcement policy at issue here are unconstitutionally vague and

overbroad, beyond statutory authority, and void under the APA. The Government

must bear the threshold burden of demonstrating that its regulation and enforcement policy meet the unambiguously-campaign-related requirement. Leake, 525

F.3d at 281-83.

The district court ignored Leake’s controlling analysis, simply distinguishing

the provisions at issue. JA–70-71. Superficial distinctions are typically possible

between even substantially similar provisions, as these are, but the prior constitutional analysis is controlling and should be followed because it has not been overturned or superseded. In contrast to its refusal to follow Leake, the district court

repeatedly cites as authority portions of this Court’s opinion at RTAO, 575 F.3d

342, see JA–69, 71-73, 78, that were vacated and not re-issued. See RTAO, 607

F.3d 355.

While the court below ignored Leake’s unambiguously-campaign-related requirement, another court in this Circuit recently recognized it as controlling, but

decided that it did not have to employ it in striking down an “expressly advocat22

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ing” definition that imported WRTL-II’s appeal-to-vote test. See Center for Individual Freedom v. Tennant, No. 08-190, 2011 WL 2912735 (S.D.W.Va. July 18,

2011) (“CFIF”).

C. “Express Advocacy” Requires “Magic Words.”

The Supreme Court “remanded . . . for . . . consideration in light of Citizens.”

130 S.Ct. 2371. The Court surely had in mind in finding a reasonable probability

of a different result on remand, see supra at 13 & n.7, the clear statement of the

Citizens concurrence and dissent: “If there was ever any significant uncertainty

about what counts as the functional equivalent of express advocacy, there has

been little doubt about what counts as express advocacy since the ‘magic words’

test of Buckley . . . .” 130 S.Ct. at 935 n.8 (Stevens, J., joined by Ginsburg, Breyer

& Sotomayor, JJ., concurring in part and dissenting in part) (emphasis added). See

also id. at 956 (equating express advocacy with “magic words”). This statement

directly rejects the approach of 100.22(b), and it is a reiteration of what all of the

Justices have been reaffirming repeatedly in saying that “express advocacy” requires “magic words.”

The Court created “express advocacy” as a term of art in Buckley and clearly

defined it as requiring “express words of advocacy of election or defeat, such as

‘vote for’ . . . .” 424 U.S. at 44 n.52. Buckley explicitly applied this construction to

a purpose-of-influencing “expenditure” definition in the context of independent23

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expenditure reporting. Id. at 80. So it has direct applicability here where a

purpose-of-influencing expenditure definition applies in the same disclosure context.

Buckley was decided on January 30, 1976. On May 11, 1976, Congress incorporated Buckley’s magic-words “expressly advocating” term of art in the newlyminted “independent expenditure” definition. Public Law 94-283, 90 Stat. 479.

That statute, codified at 2 U.S.C. 431(17), remains unchanged and is the authority

that FEC cites for 100.22(b), which goes beyond the magic-words statutory authority, and reintroduces the vagueness and overbreadth that Buckley removed in

construing the “expenditure” definition that is foundational to the “independent

expenditure” definition. An “independent expenditure” is an “expenditure,” which

means it must be “for the purpose of influencing” federal elections, 2 U.S.C.

431(9)(A)(i), which has already been construed as requiring (and still requires)

magic-words express advocacy.

In FEC v. Massachusetts Citizens for Life, 479 U.S. 238 (1986) (“MCFL”), the

Court considered another “expenditure” definition in the statute banning corporate

(and other) “expenditures,” defined to reach expenditures “in connection with any

election,” 2 U.S.C. 441b. The Court noted MCFL’s argument

that the definition of an expenditure under § 441b necessarily incorporates the requirement that a communication ‘expressly advocate’

the election of candidates . . . . The argument relies on the portion of

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Buckley . . . , that upheld the disclosure requirement for expenditures

by individuals other than candidates and by groups other than political committees. . . . There, in order to avoid problems of overbreadth,

the Court held that the term “expenditure” encompassed “only funds

used for communications that expressly advocate the election or defeat of a clearly identified candidate.” 424 U.S., at 80 (footnote omitted).

MCFL, 479 U.S. at 248-49 (emphasis added). The emphasized portions of the

block-quote show the clear relevance of the Court’s analysis to the present case.

Though 441b was a ban, the analysis argued that the portion of Buckley that dealt

with expenditure disclosure controlled this similar “expenditure” definition because “in connection with” suffered under the same vagueness and overbreadth

problem as the “for the purpose of influencing” language of the definition at issue

in Buckley. The Court “agree[d] . . . that this rationale require[d] a similar construction of the more intrusive provision that directly regulates independent spending” and “h[e]ld that an expenditure must constitute ‘express advocacy’ . . . to be

subject to the prohibition . . . .” Id. at 249. The Court reaffirmed “that . . . ‘express

advocacy’ depend[s] upon the use of language such as ‘vote for’ . . . .” Id. Thus,

there is no difference between disclosure and ban contexts in the standards for

vagueness, overbreadth, and the unambiguously-campaign-related requirement.

Any “expenditure” definition employing the operative language construed in

Buckley and MCFL has already been, and must be, given the magic-words expressadvocacy construction.

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In McConnell v. FEC, 540 U.S. 93 (2003), the Court repeatedly equated “express advocacy” with “magic words.” See 540 U.S. at 126, 191-93, 217-19. So

McConnell’s hyperbolic “functionally meaningless” statement about the expressadvocacy line, id. at 193, did not eliminate “express advocacy” as a category of

regulated speech requiring “magic words.” Rather McConnell merely used that

analysis to add regulation of “electioneering communications” to ongoing regulation of magic-words express advocacy.

Post-McConnell, equation of express advocacy with magic words continues. In

WRTL-II, all members of the Court equated “express advocacy” with “magic

words.” See 551 U.S. at 474 n.7 (Alito, C.J., joined by Alito, J.), 495 (Scalia, J.,

joined by Kennedy & Thomas, JJ., concurring in part and concurring in judgment),

513 (Souter, J., joined by Stevens, Ginsburg, & Breyer, JJ., dissenting). As noted

above, the Citizens concurrence and dissent added Justice Sotomayor to the unanimous pronouncement.

This Court held 100.22(b) unconstitutional for not requiring magic words, Virginia Society for Human Life v. FEC, 263 F.3d 379, 392 (4th Cir. 2001), and other

decisions held that express advocacy requires magic words, see Leake, 525 F.3d at

283 (requires “specific election-related words”); FEC v. Christian Action Network,

110 F.3d 1049, 1062 (4th Cir. 1997) (“CAN-II”) (same). These holdings directly

control this case.

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Other circuits have held that express advocacy requires a magic-words test.

See Faucher v. FEC, 928 F.2d 468, 470 (1st Cir. 1991); FEC v. Central Long Island Tax Reform, 616 F.2d 45, 53 (2d Cir.1980); Center for Individual Freedom v.

Carmouche, 449 F.3d 655, 664-65 (5th Cir. 2006); Chamber of Commerce v.

Moore, 288 F.2d 187, 195-96 (5th Cir. 2002); Anderson v. Spear, 356 F.3d 651,

664 (6th Cir. 2004); Brownsburg Area Patrons Affecting Change v. Baldwin, 137

F.3d 503, 506 (7th Cir. 1998); Iowa Right to Life Committee v. Williams, 187 F.3d

963 (8th Cir. 1999) (striking definition patterned on 11 C.F.R. 100.22(b)); California Pro-Life Council v. Getman, 328 F.3d 1088, 1098 (9th Cir. 2003) (“CPLC”).10

See also ACLU of Nevada v. Heller, 378 F.3d 979, 985 (9th Cir. 2004)

(“‘McConnell left intact the ability of courts to make distinctions between express

advocacy and issue advocacy, where such distinctions are necessary to cure vagueness and over-breadth in statutes’” (citation omitted)); Anderson, 356 F.3d at 664-

65 (same); Carmouche, 449 F.3d at 665.

11

The First Circuit “affirm[ed] for substantially the reasons set forth in the district court opinion” the holding that “‘100.22(b) is contrary to [FECA] as the Su-

 This decision recognized that even FEC v. Furgatch, 807 F.2d 857 (9th Cir.

10

1987), on which FEC relied for the challenged regulation, “presumed express advocacy must contain some explicit words of advocacy.” CPLC, 328 F.3d at 1098.

 State supreme courts have also held that “express advocacy” requires “magic 11

words.” See Brownsburg Area Patrons Affecting Change, 714 N.E. 2d 135 (Ind.

1999); Osterberg v. Peca, 12 S.W. 3d 31 (Tex. 2000).

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preme Court and the First Circuit Court of Appeals have interpreted it and thus

beyond the power of FEC.’” Maine Right to Life Committee v. FEC, 98 F.3d 1 (1st

Cir. 1996) (per curiam) (quoting Maine Right to Life Committee v. FEC, 914

F.Supp. 8, 13 (D. Me. 1996)). And Leake, 525 F.3d at 280-86, held a statute sim12

ilar to 100.22(b) unconstitutional. Other courts have rejected Furgatch-style definitions. See Moore, 288 F.3d 187; Gov. Gray Davis Comm. v. American Taxpayers Alliance, 102 Cal.App.4th 449 (Cal. Ct. App. 2002); League of Women Voters

of Colo. v. Davidson, 23 P.3d 1266 (Colo. App. 2001); Washington State Republican Party v. Washington State Public Disclosure Comm’n, 4 P.3d 808 (Wash.

2000).

And post-McConnell, other courts have joined Leake in holding that the only

two types of (non-PAC) speech that are regulable are magic-words express advocacy and federally-defined electioneering communications meeting WRTL-II’s

appeal-to-vote test. See New Mexico Youth Organized v. Herrera, 611 F.3d 669,

676 (10th Cir. 2010); Broward Coal. of Condos., Homeowners Ass’ns and Cmty.

Orgs., Inc. v. Browning, No. 4:08cv445, 2009 WL 1457972, at *5 (N.D. Fla. May

22, 2009) (order granting summary judgment); National Right to Work Legal DeSee also Right to Life of Duchess County, lnc. v. FEC, 6 F.Supp.2d 248, 253-

12

54 (S.D.N.Y. 1998) (“100.22(b)’s definition of ‘express advocacy’ is not authorized by FECA, 2 U.S.C. § 441b, as that statute has been interpreted by the United

States Supreme Court in MCFL and Buckley”).

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fense and Education Foundation v. Herbert, 581 F. Supp. 2d 1132, 1144 (D. Utah

2008).

Citizens changed this great body of authority in only one respect. It decided

that, as to disclosure, communications merely meeting the electioneering communication definition (without also passing the appeal-to-vote test) could be subject

to disclaimers and one-time, event-driven reporting requirements (not PAC-style

requirements). 130 S.Ct. at 915. But that holding merely means that, for disclosure

purposes, statutorily defined electioneering communications meet the

unambiguously-campaign-related requirement. Note that the electioneering-communication definition was a whole new approach to regulation that was not based

on vague and overbroad purpose-of-influencing or in-connection-with elections

language but based on tightly defined activity in closely confined periods near

elections, which the Court held was not vague or overbroad. Id. at 192 (“In narrowly reading the FECA provisions in Buckley to avoid problems of vagueness

and overbreadth, we nowhere suggested that a statute that was neither vague nor

overbroad would be required to toe the same express advocacy line.”). But this

does not mean that the Court has changed its mind about requiring “magic words”

for “expenditures” defined on the basis of purpose-of-influencing-elections language. In fact, the Citizens concurrence on the disclosure issue simultaneously

reaffirmed that “express advocacy” requires “magic words.” 130 S.Ct. at 935 n.8

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(Stevens, J., joined by Ginsburg, Breyer & Sotomayor, JJ.).

In the face of all this authority declaring that “express advocacy” is a magicwords standard, FEC justifies 100.22(b) based on the express-advocacy test in

Furgatch, 807 F.2d 857. See FEC, “Express Advocacy . . . ,” 60 Fed. Reg. 35291,

35294 (July 6, 1995) (explanation & justification). But 100.22(b) does not even

follow Furgatch’s mandate that “speech may only be termed ‘advocacy’ if it presents a clear plea for action, and . . . it must be clear what action is advocated[, i.e.,]

. . . a vote for or against a candidate . . . ” 807 F.2d at 864. Section 100.22(b)

13

contains no clear-plea-for-action requirement that must be to “vote.” Absent this

14

central element of Furgatch, FEC cannot assert that its test is identical to

Furgatch’s test. Anyway, Furgatch does not control here. In CAN-II, 110 F.3d

1049, this Court noted Buckley’s and MCFL’s requirement of magic words for express advocacy, interpreted the Furgatch test, then expressly rejected FEC’s 15

Furgatch applied this to an anti-Nixon ad that proclaimed “DON’T LET 13

HIM DO IT!” where the only way to “[not] let him do it” was to vote against him.

The Ninth Circuit decided that there was a “clear plea for action” and the action

solicited was “a vote for or against a candidate” so the communication at issue fit

the test.

 The Ninth Circuit has since recognized that even Furgatch “presumed ex14

press advocacy must contain some explicit words of advocacy.” CPLC, 328 F.3d

at 1098.

 This Court’s extended interpretation of what Furgatch required included 15

this:

Indeed, the simple holding of Furgatch was that, in those instances

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assertion that it followed Furgatch in promulgating 100.22(b):

Contrary to its assertions, the Commission’s regulatory definition of

“express advocacy” does not parallel this test. According to the FEC:

[l]ike the first prong in Furgatch, the Commission’s regulation

requires the “electoral portion of the communication [to be] unmistakable, unambiguous, and suggestive of only one meaning”

(11 C.F.R. § 100.22(b)(1)). Like the second and third prongs, the

Commission’s regulation requiresthat “[r]easonable minds could

not differ as to whether it encourages actions to elect or defeat

one or more clearly identified candidate(s) or encourages some

other kind of action” (11 C.F.R. § 100.22(b)(2)). Appellant’s

Reply Br. at 9 (footnote omitted). It is plain that the FEC has

simply selected certain words and phrases from Furgatch that

give the FEC the broadest possible authority to regulate political

speech (i.e., “unmistakable,” “unambiguous,” “suggestive of only

one meaning,” “encourage[ment]”, 807 F.2d at 864), and ignored

those portions of Furgatch, quoted above, which focus on the

where political communications do include an explicit directive to

voters to take some course of action, but that course of action is unclear, “context”—including the timing of the communication in relation to the events of the day—may be considered in determining

whether the action urged isthe election or defeat of a particular candidate for public office.

Id. at 1054 (emphasis in original). And this Court expressly noted that the following FEC representation in opposing certiorari for Furgatch was inconsistent with

100.22(b):

“The court of appeals’ assessment of Mr. Furgatch’s advertisement

under [the “express advocacy’] standard turns upon the particular

facts of this case, and thus does not necessarily indicate how courts

will assess other communications in other circumstances. Such a

fact-dependent determination does not warrant plenary review by this

Court, particularly since the Court discussed the proper application of

the express advocacy standard only last Term in FEC v. Massachusetts Citizens for Life, Inc. [479 U.S. at 248-50], and applied it in a

manner consistent with that of the court of appeals in this case.”

CAN-II, 110 F.3d at 1054 (citation omitted).

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words and text of the message.

CAN-II, 110 F.3d at 1054 n.5. In this Circuit, FEC cannot succeed in arguing that

100.22(b) follows Furgatch. That has already been authoritatively rejected. In fact,

CAN-II awarded attorney’s fees against FEC for asserting its baseless position. Id.

at 1064. Nothing has altered the controlling Fourth Circuit holdings that express

advocacy requires “magic words.”

D. Section 100.22(b) Is Beyond Statutory Authority.

Section 100.22(b) is beyond statutory authority for going beyond “magic

words” in defining the express-advocacy construction applied to “expenditure”

definitions employing both purpose-of-influencing-elections language. See supra

at 27-28. The regulation cites as authority 2 U.S.C. 431(17), the “independent expenditure” definition, which regulates only “an expenditure by a person [] expressly advocating the election or defeat of a clearly identified candidate.” That

definition implements the magic-words, express-advocacy constructions in

Buckley, 424 U.S. at 44, 80. There is no congressional authority anywhere for FEC

to interpret “expressly advocating” other than as requiring magic words. Congress

has only regulated two types of non-PAC campaign-related speech: (1) “independent expenditures,” 2 U.S.C. 431(17), for which it employed Buckley’s magicwords “expressly advocating” as a term of art with fixed meaning following the

Supreme Court’s construction of “expenditure” to require magic-words express

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advocacy, and (2) “electioneering communications,” 2 U.S.C. 434(f)(3), which it

defined as targeted, broadcast ads identifying candidates 30 and 60 days before

primaries and general elections respectively. Neither definition contains an appealto-vote test, so Congress has not asserted its authority to regulate under that test,

but WRTL-II did limit the electioneering-communication prohibition to communications with WRTL-II’s appeal to vote. Congress has nowhere sought to regulate

any hybrid of these, only magic-words independent expenditures and bright-line

electioneering communications. Moreover, the only “expenditure” that FEC may

regulate by statute—as an “independent expenditure”—is one “for the purpose of

influencing any election for Federal office,” 2 U.S.C. 431(9), and it was precisely

to such language in an “expenditure” definition that Buckley gave an express-advocacy construction to preserve it from vagueness and overbreadth in the disclosure context. 424 U.S. at 77, 80.

As already noted, supra at 27-28, courts have expressly held that 100.22(b) is

beyond statutory authority because its purportedly authorizing “expenditure” definition has already been construed to require magic-word express advocacy. See

Maine Right to Life Committee, 98 F.3d 1; Maine Right to Life Committee, 914

F.Supp. 8, 13; Right to Life of Duchess County, 6 F.Supp.2d at 253-54.

Furthermore, it is simply illogical to assert that any sort of “functional equivalent of express advocacy,” WRTL-II, 551 U.S. at 469 (emphasis added), can be a

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type of express advocacy. If they were the same, Congress would have included

electioneering communications within the independent-expenditure definition,

which it did not, and McConnell and WRTL-II would have simply said that an

electioneering communication was a type of independent expenditure, rather than

identifying some of it as functionally equivalent. Congress expressly provided that

any communication fitting the electioneering-communication definition that also

“constitutes an expenditure or an independent expenditure under this Act” is not

an electioneering communication. 2 U.S.C. 434(f)(3)(B)(ii). This means that Congress said that the definitions do not overlap, so that a communication either contains magic-words express advocacy and is an independent expenditure, or it

merely mentions a candidate in the requisite manner and time-frames before elections and is an electioneering communication. Thus, a narrowing construction imposed on the electioneering-communication prohibition to save it from unconstitutionality cannot be imported into the independent-expenditure definition by means

of an alternate “expressly advocating” definition. Congress enacted statutes regulating the two as separate types of communications without overlap.

E. Section 100.22(b) Is Unconstitutionally Vague and Overbroad.

The district court upheld 100.22(b) as “consistent with [WRTL-II’s] appeal-tovote test.” JA–69. But that test is not free-floating and is unconstitutionally vague

outside its electioneering-communication context. WRTL-II made this clear, in re34

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sponse to Justice Scalia’s vagueness accusation, that the appeal-to-vote test was

not vague because it was anchored by the statutory electioneering-communication

definition:

Justice SCALIA thinks our test impermissibly vague. . . . [W]e agree

with Justice SCALIA on the imperative for clarity in this area; that is

why our test affords protection unless an ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against

a specific candidate. . . . And keep in mind this test is only triggered

if the speech meets the brightline requirements of [the electioneeringcommunication definition] in the first place.

551 U.S. at 474 n.7 (underscoring added). Conversely, absent the brightline context of the electioneering-communication definition, WRTL-II agrees that the

appeal-to-vote test is unconstitutionally vague (and consequently overbroad). Neither the notion of “functional equivalence,” which was replaced by WRTL-II’s

appeal-to-vote test, id. at 469-70, nor that test itself is a free-floating test that Congress or FEC may apply elsewhere.

This was the recent holding of a court in this Circuit in a carefully reasoned

opinion reflecting the approach the court below should have taken. See CFIF, No. 08-

190, 2011 WL 2912735, at *17-21. The court first noted this Court’s unambiguouslycampaign-related requirement, including Leake’s holding that a communication

would be the “functional equivalent of express advocacy” only if it meets both the

electioneering-communication definition and the appeal-to-vote test. Id. at *17. But

it said it need not reach an analysis based on the unambiguously-campaign-related

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requirement because the case could be decided on vagueness grounds. Id. at *19. It

noted that though “Chief Justice Roberts expressly cabined the ‘appeal to vote’ test

within the . . . ‘electioneering communication’ definition to assuage the concurrence’s

vagueness concerns,” yet

the three concurring justices outright rejected the ‘appeal to vote’ test

of vagueness grounds, arguing that it

ultimately depend[s] . . . upon a judicial judgment . . . concerning

‘reasonable’ or ‘plausible’ import that is far from certain, that

rests upon consideration of innumerable surrounding circumstances which the speaker may not even be aware of, and that

lends itself to distortion by reason of the decision maker’s subjective evaluation of the importance or unimportance of the challenged speech.

[WRTL-II, 551 U.S.] at 493 (Scalia, J., concurring). The fractured

holding of the WRTL II Court leaves the “appeal to vote” test on

shaky ground, at least as to the vagueness issue identified and addressed by all five justices joining in the judgment.

Id. at 20. Thus, the CFIF court decided that the confinement of the appeal-to-vote

test to the electioneering-communication context “was a significant, if not

dispositive, reason the test survived vagueness scrutiny.” Id. So the court held that

“a stand-alone ‘appeal to vote’ test cannot survive a vagueness challenge.” Id. at

21. The

test, on its own, “ultimately depend[s] . . . upon a judicial judgment

. . . concerning ‘reasonable’ or ‘plausible’ import that is far from

certain, that rests upon consideration of innumerable surrounding

circumstances which the speaker may not even be aware of, and that

lends itself to distortion by reason of the decision maker's subjective

evaluation.” WRTL II, 551 U.S. at 493 (Scalia, J., concurring). West

Virginia’s use of the “appeal to vote” test contains none of the objec36

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tive, clearly-discernable elements that WRTL II emphasized in footnote 7. Instead, it “puts the speaker . . . wholly at the mercy of the

varied understanding of his hearers,” Buckley, 424 U.S. at 43, and

will therefore muddle the scope of attendant regulation. Due to this

impermissible vagueness, [the “expressly advocating” definition] is

unconstitutional.

Id.

The same analysis applies to 100.22(b). The extent that the district court and

Appellees rely on WRTL-II’s appeal-to-vote test to justify 100.22(b), and to the

extent the two tests are comparable, 100.22(b) is facially unconstitutional for

vagueness for not restricting the test to the limiting context in which WRTL-II narrowly upheld it against unconstitutional vagueness. Moreover, 100.22(b) contains

inherently vague terms—“electoral portion,” “encourages,” “actions,” “suggestive,” and “limited reference to external events, such as proximity to the election”—that are far from the precision that the Supreme Court required from

Buckley to Citizens. Section 100.22(b)’s reliance on “proximity to the election” to

determine the functional equivalent of express advocacy is not only vague but this

central feature of 100.22(b) has already been held unconstitutional for this purpose

in WRTL-II. Moreover, FEC has recently included the appeal-to-vote test as a 16

WRTL-II expressly rejected proximity to an election as a criterion for the

16

functional equivalent of express advocacy. See WRTL-II, 551 U.S. at 472. The limited “basic background information” that WRTL-II said may be considered included whether legislation on a mentioned issue is pending, but not any of the criteria that WRTL-II expressly rejected, id., at 474, which includes the proximity to

an election that 100.22(b) would examine.

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content standard for coordination in a coordinated-communication regulation, calling it “the functional equivalent of express advocacy” standard, and stating that

this test “is broader than express advocacy.” FEC, “Coordinated Communications,” 75 Fed. Reg. 55947, 55952 (Sept. 15, 2010). So it may not now insist that

express advocacy and the appeal-to-vote test are the same. In fact, the new coordination rule lists express advocacy as a separate content standard, conceding that

the two are not equivalent. See 11 C.F.R. 109.21(c)(3) (express advocacy) and (5)

(appeal-to-vote test).

In remanding for reconsideration in light of Citizens, the Supreme Court

clearly had in mind its forceful repudiation of FEC’s approach to regulation in 11

C.F.R. 114.15, which was based on the same sort of subjective, balancing, speechchilling, FEC-empowering, ad-hoc, we-know-it-when-we-see-it approach taken by

FEC in both 11 C.F.R. 100.22(b) and its PAC-status enforcement policy. Before

the Supreme Court in this case, FEC expressly relied on its interpretation (articulated in now-abandoned 11 C.F.R. 114.15) of WRTL-II’s appeal-to-vote test, 551

U.S. at 469-70, insisting that WRTL-II’s context-sensitive application of the

appeal-to-vote test was a part of the test itself. Br. Resp’ts at 15-16, RTAO, 130

S.Ct. 2371 (“To the extent the standards differ, 100.22(b) is narrower than the

WRTL test, as the regulation requires an ‘unambiguous’ electoral portion, 11

C.F.R. 100.22(b)(1), while the lead opinion in WRTL looks to the ‘mention’ of an

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election and similar ‘indicia of express advocacy.’”) (brief available at

http://www.justice.gov/osg/briefs/2009/0responses/2009-0724.resp.pdf). What

Citizens said about FEC’s approach to its appeal-to-vote test in 11 C.F.R. 114.15

clearly indicates that FEC may not take the same approach with regard to

100.22(b) and its PAC-status enforcement policy.

The Citizens repudiation of 11 C.F.R. 114.15 is too lengthy to reproduce here,

but bears review. See 130 S.Ct. at 895-96. Citizens noted that FEC reduced the

Court’s objective, protective test into a subjective, unprotective rule. It reduced the

appeal-to-vote test to a mere part of FEC’s “two-part, 11-factor balancing test.” Id.

at 895. FEC made details of the application of the appeal-to-vote test to particular

grassroots lobbying ads a part of 114.15. Ignoring WRTL-II’s reassertion of strong

constitutional protection for issue advocacy, FEC imposed maximum control over

it. FEC made a rule so vague and overbroad that Citizens declared it like a prior

restraint for compelling speakers to seek advisory opinions before daring to speak.

Id. at 895-96. And Citizens noted that many persons could not afford the protracted litigation necessary to dispute FEC’s de facto licensing scheme. Id. FEC

did “precisely what WRTL sought to avoid,” Citizens concluded. Id. at 896. It

chilled political speech.

Section 100.22(b) takes the same vague and overbroad approach. It allows

“limited reference to external events, such as the proximity of an election,” which

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WRTL-II expressly eschewed. 551 U.S. at 472-74. There cannot be expressadvocacy criteria that were forbidden in applying WRTL-II’s appeal-to-vote test.

WRTL-II said that ads meeting its test were the functional equivalent of express

advocacy. Id. at 469-70. But context and proximity to an election could not be

used in determining whether an ad fell within the test, rather the test must look to

the substance of the communication itself. Id. at 469, 472-74. WRTL-II repudiated

the context-and-proximity approach FEC and Intervenors took in their effort to

prove that WRTL’s ads were the functional equivalent of express advocacy, along

with the burdensome discovery imposed on WRTL in an effort to establish contextual factors. Yet 100.22(b) embraces context and proximity to an election as criteria for express advocacy (the supposed equivalent), to be determined by burdensome investigations in enforcement actions and by burdensome discovery in litigation. “Such litigation constitutes a severe burden on political speech.” WRTL-II,

551 U.S. at 468 n.5. If such severe burdens are unconstitutional in applying the

appeal-to-vote test, then WRTL-II’s declaration of equivalence mandates that these

burdens are necessarily unconstitutional in applying the express advocacy test. If

WRTL-II eschewed context-and-proximity criteria and mandated focus on the substance of the communication in applying its test, then the declared equivalence

mandates that the same criteria be employed for determining express advocacy.

Section 100.22(b) relies on a “reasonable person” standard, while WRTL-II

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required an objective standard based on the meaning of the actual words and not

what some hypothetical person might think the ad in general and in context might

mean. Id. at 469-70. It relies on the operative phrase “advocacy of the election or

defeat of . . . candidates, though Buckley expressly held that the phrase “‘advocating the election or defeat of’ a candidate ” is unconstitutionally vague and

overbroad absent the express-advocacy construction. 424 U.S. at 42, 44.

Other vague and overbroad terms in 100.22(b), such as “encourages,” “actions,” and “suggestive,” further diminish the constitutionality of, and statutory

17 18

authority for, this regulation. It requires examination of an undefined and vague

“electoral portion.” As a result, would-be speakers, enforcers, and courts are unable to tell what is permitted.

Buckley specifically defined expressly advocating election or defeat as en- 17

couraging a vote for against someone, not as encouraging actions to elect or defeat. Buckley, 424 U.S. at 44 n.52. Substituting “actions” introduces vagueness and

broadens the activity encompassed, all without precedential authority.

WRTL-II’s appeal-to-vote test employed the term “susceptible,” 551 U.S. at 18

469-70 (“susceptible of no reasonable interpretation other than as an appeal to

vote for or against a specific candidate”), which clearly indicates that the communication at issue must only be capable of one meaning in order to be restricted.

This formulation favors liberty of expression. By contrast, “suggestive” takes the

issue away from the clear meaning of the text to what a communication might suggest. It is too vague for use in restricting First Amendment activity, where bright

lines are required to protect speakers and chill would-be censors and those who

would file complaints to invoke the powers of censorship. It favors suppression of

expression. “In drawing that line [between campaign advocacy and issue advocacy], the First Amendment requires us to err on the side of protecting speech

rather than suppressing it.” WRTL-II, 551 U.S. at 457.

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Section 100.22(b) applies year-round, includes non-broadcast communications, and does not require targeting, so its vagueness is not mitigated by being

confined to communications otherwise meeting the brightline electioneering communication definition. And the other saving graces of WRTL-II’s appeal-to-vote

test and the mandated procedures for as-applied challenges are wholly absent from

the way in which FEC has been applying its alternative express advocacy test. Just

as it did to WRTL in WRTL II, FEC has sought to establish express advocacy by

engaging in wide-ranging discovery into intent and effect. It has broadly em19

ployed often marginal contextual factors. It has insisted that if an issue is a campaign issue it is essentially foreclosed as a communication topic for non-campaign

speakers absent FECA compliance. Both WRTL-II and Citizens foreclose such

speech-chilling regulation.

F. Applying Section 100.22(b) to RTAO’s Ads Highlights the Vagueness.

Applying 100.22(b) to RTAO’s proposed Ads readily demonstrates its flaws.

FEC “den[ied] that the ‘Change’ ad is express advocacy under . . . 100.22(b)” but

“admit[ted] that the ‘Survivors’ ad is express advocacy under . . . 100.22(b).” Doc.

87 (Am. Answer ¶ 26). Of course neither ad is express advocacy under the requi-

 Examples of FEC’s application of section 100.22(b) with relevant analysis

19

can be found in James Bopp, Jr. & Richard E. Coleson, Comments of the James

Madison Center for Free Speech on Notice of Proposed Rulemaking 2007-16

(Electioneering Communications) at 15-24 (Sept. 28, 2007) (available at

http://sers.nictusa.com/fosers/showpdf.htm?docid=4963).

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site magic-words test.

Despite FEC’s position that Change was not express advocacy, the district

court decided (in denying preliminary injunction) that “it is clear that reasonable

people could not differ that [Change] is promoting the defeat of Senator Obama,”

so it would be express advocacy under 100.22(b). Doc. 77 at 13; see also id. at 15

n.3 (“clearly both are expressly advocating the defeat of Senator Obama”). In its

summary judgment opinion, the district court again decided that section 100.22(b)

is constitutional as applied to the Ads, that “‘Change’ is plainly the functional

equivalent of express advocacy” and “‘Survivor’ is more obviously” so. JA–74. 

Since the FEC and the district court disagree as to whether Change is express

advocacy under 100.22(b), the flaw in the regulation is apparent. Since RTAO believes that both the district court and FEC are comprised of the “reasonable persons” envisioned by 100.22(b), the fact that they view an ad differently readily

reveals a clear problem with this reasonable-person test. If the enforcement agency

and a federal court cannot agree on the applicability of 100.22(b) how can RTAO

know what it may do and how it may be free from arbitrary enforcement? The test

is unconstitutionally vague and overbroad, beyond statutory authority, and void.

II. FEC’s PAC-Status Policy Is Vague,

Overbroad, Beyond Authority, and Void.

In remanding this case for reconsideration in light of Citizens, the Supreme

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Court surely had in mind its declaration that PACs impose “onerous” burdens, its

repudiation in of PACs as constitutionally adequate vehicles for corporate core

political speech, and its rejection of multi-factor tests in that case. See infra. What

the Court rejected is precisely what is at issue in FEC’s PAC-status enforcement

policy.

RTAO challenges FEC’s no-rule policy because RTAO reasonably fears that it

will be deemed a PAC—by FEC or a court compelling FEC to bring an enforcement action on a complaint. The policy is set out in two statements: PAC-Status 1,

69 Fed. Reg. 68056, and PAC-Status 2, 72 Fed. Reg. 5595. PAC-Status 2 cited 11

C.F.R. §§ 100.22(b) and (now-abandoned) 100.57 as central elements of its policy,

72 Fed. Reg. at 5602-05, so the flaws in those regulations negatively affect the

policy. The major-purpose test is the third element of the enforcement policy.

RTAO complains that

[b]ecause the FEC’s enforcement policy for determination of PAC

status goes beyond any permissible construction ofthe major-purpose

test, employs invalid regulations to determine whether the entity received a “contribution” or made an “expenditure,” is unconstitutionally vague and overbroad, and is in excess of the statutory

. . . authority . . .” of the FEC, it is void under 5 U.S.C. § 706.

JA–36.

A. Standards of review.

The standards for vagueness, First-Amendment substantial overbreadth,

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Buckley-overbreadth, and statutory authority are the same here as for Part I.A. See

supra at 15-16. Only if the policy survives review under those standards, which it

cannot properly do, would it be proper to consider whether exacting or strict scrutiny applies, but strict scrutiny would apply in such case.

Citizens applied two different types of scrutiny to two distinctly different types

of speech burdens. It dealt with both a ban and PAC-status and PAC-burdens on

one hand, to which it applied strict scrutiny, 130 S.Ct. at 896-98, and separately it

dealt with mere disclaimers and one-time, event-driven reports on the other hand,

to which it applied intermediate exacting scrutiny, id. at 913-14. PAC-status and

PAC-style disclosure cannot properly be conflated with, and treated as, mere “disclosure” (disclaimers and one-time, event-driven reports) as the district court erroneously did. JA–67-68.

That strict scrutiny applies to PAC-status and PAC-burdens, as well as speech

bans, is clear in Citizens. The Court first noted that “Section 441b is a ban on corporate speech notwithstanding the fact that a PAC created by a corporation can

still speak.” 130 S.Ct at 897 (emphasis added). But the Court then considered

PAC-burdens alone, i.e., as would be true if there were no ban: “Even if a PAC

could somehow allow a corporation to speak—and it does not—the option to form

PACs does not alleviate the First Amendment problems with § 441b. PACs are

burdensome . . . .” Id. at 897 (emphasis added). After explaining the “onerous”

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nature of PAC-status and PAC-burdens, the Court held that “[l]aws that burden

political speech are ‘subject to strict scrutiny,’ which requires the Government to

prove that the restriction ‘furthers a compelling interest and is narrowly tailored to

achieve that interest.’” Id. at 898 (quoting WRTL-II, 551 U.S. at 464) (emphasis

added). In both Citizens and WRTL-II, it is not “laws that ban political speech” but

rather “laws that burden political speech” that are subject to strict scrutiny—unless

that burden is truly only “BCRA’s disclaimer and disclosure provisions,” Citizens,

130 S.Ct. at 913, by which is meant one-time, event-driven reports of the sort that

Citizens considered under exacting scrutiny.

This distinction between PAC-style burdens and “BCRA’s . . . disclosure requirements” is well-known to FEC. While PAC-style burdens are well-described

in Citizens, 130 S.Ct. at 897-98, they are also set out in entire FEC manuals titled

FEC Campaign Guide for Corporations and Unions (2007) (134 pages)

(http://fec.gov/pdf/colagui.pdf) and FEC Campaign Guide for Nonconnected

Committees (2008) (134 pages) (http://fec.gov/pdf/nongui.pdf), both with extensive supplements and supporting brochures providing further information, e.g., on

Best Practices for Committee Management (no date) (http://fec.gov/pages/brochures/best_practices.pdf) and Committee Treasurers (updated 2011)

(http://fec.gov/pages/brochures/committee_treasurers_brochure.pdf). In addition,

citizens must consult numerous FEC rules, explanations and justification for the

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rules (“E&Js”), advisory opinions (“AOs”), matters under review (“MURs”), and

court decisions to track what PACs may and may not do, and how. The situation

with PAC-status and PAC-burdens is precisely what the Supreme Court described

in Citizens in describing the burden of prolix, vague laws that require hiring a lawyer in order to speak: “The First Amendment does not permit laws that force

speakers to retain a campaign finance attorney . . . before discussing the most salient political issues of our day. Prolix laws chill speech for the same reason that

vague laws chill speech: People ‘of common intelligence must necessarily guess at

[the law’s] meaning and differ as to its application.’” 130 S.Ct. at 889.

By contrast, regarding ordinary, one-time, event-driven disclosure of independent expenditures and electioneering communications, FEC has a small brochure on Coordinated and Independent Expenditures (updated 2011)

(http://fec.gov/pages/brochures/ie_brochure.pdf) (11 pages) and Electioneering

Communications (updated 2009) (http://fec.gov/pages/brochures/ec_brochure.pdf)

(6 pages). This ordinary disclosure requires no complicated work for an appointed

treasurer, and the page-number disparity between FEC publications alone reveals

the error of equating PAC-style burdens with the ordinary disclosure to which Citizens applied exacting scrutiny.

Thus, strict scrutiny applies to any provision imposing PAC status. This is

confirmed by Austin, which made clear that strict scrutiny applies to PAC burdens

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regardless of whether they are deemed a ban:

The [Michigan] Act imposes requirements similar to those in the

federal statute involved in MCFL: a segregated fund must have a

treasurer . . . ; and its administrators must keep detailed accounts of

contributions, . . . and file with state officials a statement of organization, ibid. In addition, a nonprofit corporation like the Chamber may

solicit contributions to its political fund only from members, stockholders of members, officers or directors ofmembers, and the spouses

of any of these persons. . . . Although these requirements do not stifle

corporate speech entirely, they do burden expressive activity. See

MCFL, 479 U.S., at 252 (plurality opinion); id., at 266 (O’CONNOR,

J.). Thus, they must be justified by a compelling state interest

Austin v. Mich. State Chamber of Commerce, 494 U.S. 652, 658 (1990), overturned on other grounds, Citizens, 130 S.Ct. at 913 (emphasis added). The Supreme Court held the same in MCFL: “When a statutory provision burdens First

Amendment rights, it must be justified by a compelling state interest.” 479 U.S. at

263 (emphasis added). The fact that strict scrutiny was being applied to the PAC

burdens at issue in MCFL is clear from the Court’s statement that “[t]he state interest in disclosure therefore can be met in a manner less restrictive than imposing

the full panoply of regulations that accompany status as a political committee under the Act. Id. at 262 (emphasis added). The less-restrictive-means requirement is

a strict-scrutiny standard (as is the compelling-interest requirement), and the Court

here clearly distinguishes between simple, one-time, event-driven, independentexpenditure disclosure and the “full panoply” of PAC-status and PAC-burdens,

applying strict scrutiny to the latter. Nor was a prohibition at issue here because

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the Court had already decided that MCFL-type nonprofit corporations were not

subject to the prohibition. See id. at 260 (“[T]he desirability of a broad prophylactic rule cannot justify treating alike business corporations and appellee in the regulation of independent spending.”). So the Court was applying strict scrutiny to the

FEC’s desire to impose PAC-status and PAC-burdens on entities not subject to the

corporate prohibition on independent expenditures at 2 U.S.C. 441b.

B. Citizens Declared PAC Burdens “Onerous” and Rejected PACs as Adequate Vehicles for Corporate Political Speech and Vague, Multi-Factor

Tests.

What in Citizens illumines this reconsideration on remand? Citizens held that

PACs impose “onerous” burdens, 130 S.Ct. at 895, 898, 912, so any notion that

RTAO would benefit from being a PAC is erroneous, and scrutiny of the FEC policy PAC-status policy requires strict scrutiny. The Supreme Court envisioned no

complaisant, deferential review of “onerous” burdens on core political speech on

this remand. See supra.

And Citizens forcefully repudiated both the notion that PACs are constitutionally adequate vehicles for corporate core political speech, id. at 897, and speechchilling, vague, multi-factor tests, id. at 895-96. So the Supreme Court surely envisioned that the courts below would similarly reject FEC’s vague, multi-factor

PAC-status policy that makes it unclear when an organization slips into PAC status. Citizens forcefully repudiated FEC’s appeal-to-vote-test rule at 11 C.F.R.

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114.15, which was based on the same sort of vague and overbroad, ad-hoc approach taken by FEC in its PAC-status enforcement policy. If 114.15 was “precisely what WRTL sought to avoid,” Citizens, 130 S.Ct. at 896, then FEC’s PACstatus enforcement policy was precisely what Buckley and MCFL sought to avoid.

As this Court put it—in striking down similar vague and overbroad standards

regulating (1) communications, under a contextual, reasonable-person standard,

Leake, 525 F.3d at 280-82, and (2) PACs, under a provision that “provid[es] insufficient direction to speakers and leav[es] regulators free to operate without even

the guidance of discernable, neutral criteria,” id. at 290—the government “is essentially handing out speeding tickets without ‘telling anyone . . . the speed

limit,’” id. at 290 (citation omitted). Such an approach is “dangerous” to “political

speech,” id., as stated next, id.:

is nowhere so dangerous as when protected political speech is involved. [The challenged provision]’s “we’ll know it when we see it

approach” simply does not provide sufficient direction to either regulators or potentially regulated entities.Unguided regulatory discretion

and the potential for regulatory abuse are the very burdens to which

political speech must never be subject.

C. FEC Must Prove Its Policy Only Regulates Activity that Is ElectionInfluencing by Being Unambiguously Campaign Related.

Buckley held that PAC-status could only be imposed on groups “under the

control of a candidate or the major purpose of which is the nomination or election

of a candidate” because “[t]hey are, by definition, campaign related.” 424 U.S. at

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79 (emphasis added). Leake held that the unambiguously-campaign-related requirement applies to PAC-status rules and that it mandates a narrow major-purpose test for determining PAC status. 525 F.3d at 287-90. Consequently, the Government bears the threshold burden of demonstrating that its PAC-status policy

only considers unambiguously-campaign-related activity in determining PAC status and only captures groups with Buckley’s major purpose under a permissible

interpretation of the major-purpose test.

D. Major Purpose Is Based on “an Empirical Judgment [that] an Organization Primarily Engages in Regulable, Election-Related Speech.”

Under Buckley’s major-purpose test, PAC status may only be imposed on “organizations that are under the control of a candidate or the major purpose of which

is the nomination or election of candidates.” 424 U.S. at 79. Such groups meet the

unambiguously-campaign-related requirement because they “are, by definition,

campaign related.” Id.

Determining a group’s major purpose is “an empirical judgment as to whether

an organization primarily engages in regulable, election-related speech Leake, 525

F.3d at 287. Major purpose may be determined by either an entity’s expenditures:

“should MCFL’s independent spending become so extensive that the organization’s major purpose may be regarded as campaign activity, the corporation would

be classified as a political committee.” MCFL, 479 U.S. at U.S. at 262 (major51

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purpose calculation looks at express-advocacy independent expenditures in relation to total expenditures). Or major purpose may be determined by the organization’s central purpose revealed in its organic documents. Id. at 252 n.6

(“MCFL[’s] . . . central organizational purpose is issue advocacy.”).

Thus, the first test for major purpose requires a comparison of the entity’s total

disbursements for a year with its unambiguously-campaign-related, regulable expenditures, so that only the amount of true political “contributions” and “expenditures” would be counted. The second test requires an examination of the entity’s

organic documents to determine if there was an express intention to operate as a

political committee, e.g., by being designated as a “separate segregated fund” (an

internal “PAC”) under 2 U.S.C. 441b(2)(c).

Because Buckley’s and MCFL’s major-purpose test is an authoritative construction of the definition of “political committee,” and a constitutional limit on

the application of the political committee requirements of FECA, FEC’s enforcement policy that does not comply with this construction is beyond FEC’s statutory

authority.

The Tenth Circuit agrees with the foregoing analysis:

In MCFL, the Court suggested two methodsto determine an organization’s “major purpose”: (1) examination of the organization’s central

organizational purpose; or (2) comparison of the organization’s independent spending with overall spending to determine whether the

preponderance of expenditures are for express advocacy or contribu52

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tions to candidates. 479 U.S. at 252 n. 6 (noting that MCFL’s “central

organizational purpose [wa]s issue advocacy, although it occasionally

engage[d] in activities on behalf of political candidates”); see id. at

262 (noting that “should MCFL’s independent spending become so

extensive that the organization’s major purpose may be regarded as

campaign activity, the corporation would be classified as a political

committee”). Thus, under FECA, any group that (1) spends more than

$1,000 in a year, and (2) has as its “major purpose” the influencing of

a federal election, should be considered a political committee. As a

political committee, the group must adhere to certain registration,

organizational,recordkeeping, reporting, and disclosure requirements.

See MCFL, 479 U.S. at 254 (“[M]ore extensive requirements and

more stringent restrictions . . . may create a disincentive for such

organizations to engage in political speech.”).

Colorado Right to Life Committee v. Coffman, 498 F.3d 1137, 1152 (10th Cir.

2007). See also Herrera, 611 F.3d at 678 (same two methods). Leake’s requirement that major purpose be determined based on “regulable, election-related

speech,” 525 F.3d at 287, agrees with the Tenth Circuit that only “expenditures for

express advocacy or contributions to candidates” are cognizable in calculating major purpose.

Notably, Congress did not include “electioneering communications” as a trigger for PAC status—only “contributions” and independent “expenditures,” 2

U.S.C. 431(4), so Congress did not assert an interest in counting electioneering

communications toward statutory PAC status. This is reasonable because, as

WRTL-II makes clear, the electioneering-communication definition sweeps in genuine issue advocacy along with campaign speech, which could be filtered out

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(only in the electioneering-communication context) by the appeal-to-vote test, 551

U.S. at 469-70, which in any event no longer plays any role in federal election law.

A fortiori, if even electioneering communications may not count toward major purpose, then non-regulable speech and activities may clearly not be counted.

The reason for such a bright line is threefold. First, groups must be easily able

to determine whether their activities put them at risk for the onerous burdens of

PAC status, or else they will be chilled by vague and overbroad standards from

constitutionally protected core political speech. Second, enforcement agencies and

those who might complain to them need bright lines to prevent selective enforcement risks and the burden of having to defend against frivolous complaints (often

by political rivals for perceived advantage by partially or fully disabling an opponent). Third, if a PAC-status enforcement policy is dependent on fact-intensive

investigations based on overbroad, ambiguous criteria, the investigation itself becomes an unconstitutional burden on expressive association.

Under the approved method described by MCFL and the Tenth Circuit, supra,

if an opponent complains that a group really has the major purpose of nominating

or electing candidates, the group can quickly clear itself by submitting a few,

readily available documents showing its annual expenditures and its regulable federal contributions and expenditures from which simple arithmetic will show if the

regulable, campaign-related speech comprises more than fifty percent of the

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group’s annual expenditures. Nor can FEC argue, as it did in MCFL, that there

will be inadequate disclosure, because MCFL already decided that regular disclosure of contributions and independent expenditures supplies all of the information

the government needs from groups lacking Buckley’s major purpose. 479 U.S. at

262. It is the nature of the group, determined by the major-purpose test, that determines whether a group may be treated like a PAC, not the amount of its contributions and independent expenditures. And that nature is determined with a proper

major-purpose test. But that is not FEC’s approach, as set out in its chilling and

unauthorized PAC-status enforcement policy.

E. FEC Employs an Impermissible Major-Purpose Policy.

In PAC-Status 2, after having initiated a rulemaking proceeding, FEC declared

its refusal to adopt the sort of rule set out above (or any rule) for the major-purpose test, insisting that “the major purpose doctrine . . . requires the flexibility of a

case-by-case analysis of an organization’s conduct.” 72 Fed. Reg. at 5601. Instead,

it set out its vague and overbroad enforcement policy regulating major purpose,

requiring FEC to engage in “a fact intensive inquiry,” in order to weigh various

vague and overbroad factors with undisclosed weight, requiring “investigations

into the conduct of specific organizations that may reach well beyond publicly

available statements,” including all an organization’s “spending on Federal campaign activity” (but not limited to spending on regulable activity) and other spend55

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ing, and public and non-public statements, including statements to potential donors. Id.

PAC-Status 2 also indicated that FEC would consider other factors in its ad

hoc, totality-of-the-circumstances, major-purpose test when it discussed its application of the policy to some 527 organizations in previous investigations. 72 Fed.

Reg. at 5603-04. These included the fact that an entity spent much of its money

“on advertisements directed to Presidential battleground States and direct mail

attacking or expressly advocating,” id. at 5605 (emphasis added), the fact that

groups ceased activity after an election, id., and the fact that they didn’t make disbursements in state and local races. Id. In addition, FEC thought that it could determine a 527 group’s major purpose from internal planning documents and budgets, id., which would normally be protected by First Amendment privacy and

were only obtained because the organization was subjected to a burdensome, intrusive investigation. Major purpose was even based on a private thank-you letter to a

donor, after the donation had already been made. Id.

PAC-Status 2, therefore, sets out an enforcement policy based on an ad-hoc,

case-by-case, analysis of vague and impermissible factors applied to undefined

facts derived through broad-ranging, intrusive, and burdensome investigations (often begun when a complaint is filed by a political or ideological rival) that, in

themselves, can shut down an organization, without adequate bright lines to pro56

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tect issue advocacy and issue-advocacy groups in this core First Amendment area.

Because FEC’s policy goes beyond any permissible construction of the major-purpose test, employs invalid regulations to determine whether the entity made an “expenditure,” is unconstitutionally vague and overbroad, and is “in excess of the

statutory . . . authority . . .” of FEC, it is void under 5 U.S.C. 706.

Conclusion

For the foregoing reasons the district court’s order granting summary judgment

to FEC and DOJ should be reversed and the case remanded with an order to enter

summary judgment for RTAO.

Oral Argument

RTAO requests oral argument, due to the complex nature of the issues.

Michael Boos

LAW OFFICE OF MICHAEL BOOS

Suite 313

4101 Chain Bridge Road

Fairfax, VA 22030

703/691-7717

Counsel for Plaintiff-Appellant

Respectfully submitted,

/s/ James Bopp, Jr.

James Bopp, Jr.

Richard E. Coleson

Kaylan L. Phillips

BOPP, COLESON & BOSTROM

1 South Sixth Street

Terre Haute, IN 47807-3510

812/232-2434

Lead Counsel for Plaintiff-Appellant

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Addendum

11 C.F.R. § 100.22:

Sec. 100.22 Expressly advocating (2 U.S.C. 431(17)).

Expressly advocating means any communication that—(a) Uses

phrases such as “vote for the President,” “re-elect your Congressman,” “support the Democratic nominee,” “cast your ballot for the

Republican challenger for U.S. Senate in Georgia,” “Smith for Congress,” “Bill McKay in ’94,” “vote Pro-Life” or “vote Pro-Choice”

accompanied by a listing of clearly identified candidates described as

Pro-Life or Pro-Choice, “vote against Old Hickory,” “defeat” accompanied by a picture of one or more candidate(s), “reject the incumbent,” or communications of campaign slogan(s) or individual

word(s), which in context can have no other reasonable meaning than

to urge the election or defeat of one or more clearly identified candidate(s), such as posters, bumper stickers, advertisements, etc. which

say “Nixon’s the One,” “Carter ’76,” “Reagan/Bush” or “Mondale!”;

or

(b) When taken as a whole and with limited reference to external

events, such asthe proximity to the election, could only be interpreted

by a reasonable person as containing advocacy of the election or defeat of one or more clearly identified candidate(s) because—

(1) The electoral portion of the communication is unmistakable,

unambiguous, and suggestive of only one meaning; and

(2) Reasonable minds could not differ asto whether it encourages

actions to elect or defeat one or more clearly identified candidate(s)

or encourages some other kind of action.

Appeal: 11-1760 Document: 20 Date Filed: 09/19/2011 Page: 68 of 70
No. 11-1760

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Caption: The Real Truth About Obama, Inc. v. FEe & DOJ

CERTIFICATE OF COMPLIANCE WITH RULE 28.1(e) or 32(a)

Certificate of Compliance With Type-Volume Limitation,

Typeface Requirements, and Type Style Requirements

1. This brief complies with the type-volume limitation of Fed. R. App. P. 28.1(e)(2) or

32(a)(7)(B) because:

[Appellant's Opening Brief, Appellee's Response Brief, and Appellant's Response/Reply Brief

may not exceed 14, 000 words or 1,300 lines,' Appellee's Opening/Response Briefmay not exceed

16,500 words or 1,500 lines; any Reply or Amicus Brief may not exceed 7,000 words or 650

lines; line count may be used only with monospaced type}

o this brief contains 13,636 [state the number of] words, excluding the

parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii), or

D this brief uses a monospaced typeface and contains [state the

number of] lines of text, excluding the parts of the brief exempted by Fed. R. App.

P. 32(a)(7)(B)(iii).

2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the

type style requirements of Fed. R. App. P. 32(a)(6) because:

[14-point font must be used with proportional typeface, such as Times New Roman or CG Times;

12-point font must be used with monospaced typeface, such as Courier or Courier New]

o

this brief has been prepared in a proportionally spaced typeface using

WordPerfect [state name and version ofword processing program] in

14 point Times New Roman [state font size and name ofthe type style]; or

this brief has been prepared in a monospaced typeface using

_________ [state name and version ofword processing program]

with [state number of characters per inch and name

oftype style].

(s) Richard E. Coleson

Attorney for The Real Truth About Obama

Dated: 9/19/2011

Rev. 03/03/11

Appeal: 11-1760 Document: 20 Date Filed: 09/19/2011 Page: 69 of 70
Certificate of Service

I certify that on September 19, 2011, the foregoing document was served by

electronic service through the Court’s CM/ECF system on the following counsel

of record for Defendants at the listed e-mail addresses:

Anthony Herman

 General Counsel

David Kolker

 Associate General Counsel

dkolker@fec.gov

Harry J. Summers

 Assistant General Counsel

hsummers@fec.gov

Adav Noti

 Attorney

anoti@fec.gov

Office of the General Counsel

Federal Election Commission

999 E Street, NW

Washington, DC 20463-0000

Counsel for Appellee FEC

Debra J. Prillaman

debra.prillaman@usdoj.gov

Office of the United States attorney

Suite 1800

Main Street Center

600 E. Main Street

Richmond, VA 23219-0000

Counsel for Appellee DOJ

Tony West

 Assistant Attorney General

Neil H. MacBride

 United States Attorney

Michael S. Raab

michael.raab@usdoj.gov

(202) 514-4053

Daniel Tenny

daniel.tenny@usdoj.gov

(202) 514-1838

 Attorneys, Appellate Staff

Civil Division, Room 7215

U.S. DEPARTMENT OF JUSTICE

950 Pennsylvania Avenue, NW

Washington, DC 20530-0001

Counsel for Appellee DOJ

 /s/ 

Richard E. Coleson

Appeal: 11-1760 Document: 20 Date Filed: 09/19/2011 Page: 70 of 70