No. _________ 

================================================================ 

In The 

Supreme Court of the United States 

--------------------------------- ♦ --------------------------------- 

SPEECHNOW.ORG, et al., 

Petitioners, 

v. 

FEDERAL ELECTION COMMISSION, 

Respondent. 

--------------------------------- ♦ --------------------------------- 

On Petition For A Writ Of Certiorari 

To The United States Court Of Appeals 

For The District Of Columbia Circuit 

--------------------------------- ♦ --------------------------------- 

PETITION FOR WRIT OF CERTIORARI 

--------------------------------- ♦ --------------------------------- 

INSTITUTE FOR JUSTICE

WILLIAM H. MELLOR

STEVEN M. SIMPSON* 

ROBERT W. GALL

ROBERT P. FROMMER

PAUL M. SHERMAN

901 N. Glebe Road, Suite 900 

Arlington, VA 22203 

(703) 682-9320 

ssimpson@ij.org 

CENTER FOR COMPETITIVE POLITICS

BRADLEY A. SMITH

STEPHEN M. HOERSTING

124 W. Street South, Suite 201 

Alexandria, VA 22314 

(703) 894-6800 

Counsel for Petitioners

*Counsel of Record

================================================================ COCKLE LAW BRIEF PRINTING CO. (800) 225-6964 

OR CALL COLLECT (402) 342-2831 
i 

QUESTION PRESENTED

 In Citizens United v. FEC, this Court held that 

the government cannot require a corporation to speak 

through a political committee or “PAC” as an alternative to banning the corporation’s speech outright. 

In direct conflict with that holding, the D.C. Circuit 

held that SpeechNow.org – an unincorporated group 

that makes only independent expenditures and thus 

poses no risk of corruption or its appearance – must 

organize as a political committee in order to speak. 

 The question presented is whether, under the 

Free Speech Clause of the First Amendment, the 

federal government may require an unincorporated 

association that makes only independent expenditures to register and report as a political committee 

despite the fact that a more narrowly tailored means 

of disclosing its independent expenditures exists in 

2 U.S.C. § 434(c). 
ii 

PARTIES TO THE PROCEEDING

 In addition to the parties named in the caption, 

the following five individuals were parties in the 

court of appeals proceeding: David Keating, Fred M. 

Young, Jr., Edward H. Crane III, Brad Russo, and 

Scott Burkhardt. 

 The parties to this proceeding are the five 

individuals listed above and the Federal Election 

Commission. Because SpeechNow.org was not a party 

to the D.C. Circuit’s ruling under 2 U.S.C. § 437h, but 

rather a party to a consolidated appeal of a preliminary injunction denial, the organization itself is 

not a party to this petition. It remains in the caption 

only because it is the caption that was used by the 

court below. However, David Keating, SpeechNow. 

org’s president and treasurer, is subject to both 

official and personal liability if SpeechNow.org 

violates the law, and therefore has standing to assert 

SpeechNow.org’s claims. See Statement of Policy 

Regarding Treasurers Subject to Enforcement Proceedings, 70 Fed. Reg. 3, 3-6 (Jan. 3, 2005); Cal. Med. 

Ass’n v. FEC, 453 U.S. 182, 187 n.6 (1981). 
iii 

TABLE OF CONTENTS 

Page 

QUESTION PRESENTED................................... i 

PARTIES TO THE PROCEEDING ..................... ii 

TABLE OF CONTENTS ...................................... iii 

TABLE OF AUTHORITIES ................................. vi 

OPINIONS BELOW ............................................. 1 

JURISDICTION ................................................... 1 

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ....................................... 1 

STATEMENT OF THE CASE .............................. 2 

 I. Background ................................................ 2 

 II. Proceedings Below ..................................... 7 

REASONS FOR GRANTING THE PETITION ..... 9 

 I. In Holding That an Association of Citizens Must Become a PAC in Order to 

Make Unlimited Independent Expenditures, the D.C. Circuit’s Decision Directly 

Conflicts with This Court’s Decision in 

Citizens United v. FEC .............................. 14 

A. The D.C. Circuit disregarded this 

Court’s holding that PACs are burdensome as a matter of law ................. 14 

B. The D.C. Circuit failed to apply strict 

scrutiny to the PAC requirements and 

it misapplied intermediate scrutiny ..... 21 
iv 

TABLE OF CONTENTS – Continued 

Page 

 II. This Case Raises Important Issues of National Significance Regarding the Scope 

of Regulation of Groups That Make 

Independent Expenditures ........................ 26 

 III. This Case Provides the Court with the 

Opportunity to Clarify the Scope and Application of the “Major Purpose” Test ........ 29 

A. Originally introduced as a shield for 

political speech, “major purpose” has 

since become a sword wielded by the 

government as a regulatory tool ......... 31 

B. The “major purpose” test as currently 

applied is inconsistent with this 

Court’s decisions in Buckley and 

Citizens United .................................... 35 

CONCLUSION ..................................................... 40 

APPENDIX INDEX 

U.S. Court of Appeals for the District of 

Columbia Opinion ....................................... App. 1-26 

U.S. Court of Appeals for the District of 

Columbia Judgment .................................. App. 27-28 

U.S. District Court for the District of Columbia 

Order Granting Plaintiffs’ Motion for Entry 

of Judgment ............................................... App. 29-30 

U.S. District Court for the District of Columbia 

Memorandum and Findings ..................... App. 31-53 
v 

TABLE OF CONTENTS – Continued 

Page 

Title 2 of the United States Code, §§ 431, 432, 

433, 434 ................................................... App. 54-115 

U.S. Court of Appeals for the District of 

Columbia Transcript from Oral Argument 

held on January 27, 2010 ..................... App. 116-178 

SpeechNow.org Advisory Opinion Request filed 

with the FEC November 14, 2007 ........ App. 179-221 

FEC Response to SpeechNow.org’s Advisory 

Opinion Request, January 28, 2008 ..... App. 222-223 

FEC Draft Advisory Opinion .................... App. 224-254 

Declaration of David Keating in Support of 

Plaintiffs’ Proposed Findings of Fact .... App. 255-278 

U.S. District Court for the District of Columbia 

Docket Sheet ......................................... App. 279-315 

Simpson Declaration 36, Summary of PAC 

Expenditures ......................................... App. 316-321 

FEC Exhibit 99, Summary of PAC 

Activity .................................................. App. 322-324 
vi 

TABLE OF AUTHORITIES 

Page 

CASES

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

Cal. Med. Ass’n v. FEC, 453 U.S. 182 (1981) .............. ii 

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

Davis v. FEC, 128 S. Ct. 2759 (2008) ................. passim

FEC v. Mass. Citizens for Life, Inc., 479 U.S. 

238 (1986) ........................................................ passim

FEC v. Wis. Right to Life, Inc., 551 U.S. 449 

(2007) ............................................................... passim

McConnell v. FEC, 540 U.S. 93 (2003) ........... 24, 25, 35 

N.Y. Times Co. v. Sullivan, 376 U.S. 254 (1964) ........ 27 

United States v. Thirty-Seven (37) Photographs, 

402 U.S. 363 (1971) ................................................. 34 

Ward v. Rock Against Racism, 491 U.S. 781 

(1989) ....................................................................... 23 

CODES AND STATUTES

11 C.F.R. § 100.5(b) ..................................................... 21 

11 C.F.R. § 102.1(d) ....................................................... 4 

11 C.F.R. § 102.3(a)(1) .................................................. 5 

11 C.F.R. § 102.9(a)(4)(i)-(ii) ......................................... 4 

11 C.F.R. § 102.9(b)(2) .................................................. 4 

11 C.F.R. § 102.9(c) ....................................................... 4 
vii 

TABLE OF AUTHORITIES – Continued 

Page 

11 C.F.R. § 103.3 ........................................................... 4 

11 C.F.R. § 104.1(a) ....................................................... 5 

11 C.F.R. § 104.2(e)(3) ................................................... 5 

11 C.F.R. § 104.5(c) ....................................................... 5 

11 C.F.R. § 104.5(g) ....................................................... 5 

11 C.F.R. § 114.5(b) ....................................................... 4 

11 C.F.R. § 114.10(c) ..................................................... 5 

2 U.S.C. § 431(4) ............................................. 1, 4, 7, 16 

2 U.S.C. § 431(8) ....................................................... 1, 7 

2 U.S.C. § 431(17) ......................................................... 3 

2 U.S.C. § 432 ................................................. 1, 4, 7, 16 

2 U.S.C. § 433 ................................................. 1, 4, 7, 16 

2 U.S.C. § 434 ............................................................... 1 

2 U.S.C § 434(a) .................................................. 4, 7, 16 

2 U.S.C § 434(c) .................................................. passim

2 U.S.C § 434(e) .............................................. 24, 25, 32 

2 U.S.C § 434(f ) .................................................... 11, 19 

2 U.S.C. § 437h ............................................................. 8 

2 U.S.C. § 441a(a)(1)(C) ............................................ 7, 9 

2 U.S.C. § 441a(a)(3) ................................................. 7, 9 

2 U.S.C. § 441b ........................................... 9, 15, 21, 27 

2 U.S.C. § 441d ................................................. 3, 11, 22 
viii 

TABLE OF AUTHORITIES – Continued 

Page 

26 U.S.C. § 527(j) .......................................................... 6 

26 U.S.C. § 527(j)(1) ...................................................... 6 

26 U.S.C. § 527(j)(5)(D) ................................................ 6 

28 U.S.C. § 1254(1) ....................................................... 1 

OTHER AUTHORITIES

Federal Election Campaign Act Amendments of 

1979, Pub. L. No. 96-187, 93 Stat. 1339 (Jan. 

8, 1980) .................................................................... 25 

Section 527 of the Internal Revenue Code .................. 3 

Statement of Policy Regarding Treasurers 

Subject to Enforcement Proceedings, 70 Fed. 

Reg. 3 (Jan. 3, 2005) ................................................. ii 

Supplemental Explanation & Justification, 72 

Fed. Reg. 5595 (Feb. 7, 2007) ......................... passim

Amanda Adams, FEC Will Eventually Consider 

Guidance for Disclosing Independent Expenditures, OMB Watch (July 16, 2010), 

http://www.ombwatch.org /node/11141 ................... 29 

Herbert E. Alexander, Financing Politics: 

Money, Elections, and Political Reform (4th 

ed. 1992) .................................................................. 33 

Stephen D. Ansolabehere et al., Why Is There 

So Little Money in American Politics?, 17 J. 

Econ. Persp. 105 (2003) .......................................... 28 
ix 

TABLE OF AUTHORITIES – Continued 

Page 

FEC Advisory Op. Request 2010-09 (Club for 

Growth), available at http://saos.nictusa.com/ 

aodocs/1139699.pdf ................................................. 28 

FEC Advisory Op. Request 2010-11 (Commonsense Ten), available at http://saos.nictusa. 

com/aodocs/1140639.pdf .......................................... 28 
1 

PETITION FOR A WRIT OF CERTIORARI 

 David Keating, Fred M. Young, Jr., Edward H. 

Crane III, Brad Russo, and Scott Burkhardt respectfully petition for a writ of certiorari to review the 

judgment of the United States Court of Appeals for 

the District of Columbia Circuit in this case. 

--------------------------------- ♦ ---------------------------------

OPINIONS BELOW 

 The opinion of the court of appeals (App. 1-26) is 

reported at 599 F.3d 686. The decision of the district 

court certifying Petitioners’ constitutional questions 

(App. 31-53) is unreported. 

--------------------------------- ♦ ---------------------------------

JURISDICTION 

 The judgment of the court of appeals was entered 

on March 26, 2010. The jurisdiction of this Court is 

invoked under 28 U.S.C. § 1254(1). 

--------------------------------- ♦ ---------------------------------

CONSTITUTIONAL AND 

STATUTORY PROVISIONS INVOLVED 

 The First Amendment to the United States 

Constitution provides, in relevant part: “Congress 

shall make no law . . . abridging the freedom of 

speech.” Sections 431 and 432 through 434 of Title 2 

 
2 

of the United States Code are reproduced in the 

appendix to this petition. App. 54-115. 

--------------------------------- ♦ ---------------------------------

STATEMENT OF THE CASE 

 This case raises the question of whether the government may impose the full panoply of burdensome 

requirements that apply to political committees or 

“PACs” on a group that makes only independent 

expenditures. The group – known as SpeechNow.org – 

will willingly comply with the same sort of disclosure 

and disclaimer provisions that Congress provided for 

groups, other than PACs, that make independent 

expenditures. These provisions, which are very similar to those this Court upheld in Citizens United v. 

FEC, 130 S. Ct. 876 (2010), as they applied to corporations, are far less burdensome than the PAC 

requirements that the Court struck down in Citizens 

United. The question is thus whether the government 

can impose burdensome PAC requirements on groups 

like SpeechNow.org when this Court, in Citizens 

United, just held that those same requirements cannot be applied to corporations. 

I. Background 

 Petitioner David Keating, the president and treasurer of SpeechNow.org, is a long-time political activist and supporter of First Amendment rights. App. 4. 

Along with Petitioner Edward Crane and others, Mr. 

Keating founded SpeechNow.org in October 2007 to 
3 

give individuals the opportunity to protect the First 

Amendment at the ballot box by advocating the election or defeat of candidates based on their support for 

free speech. App. 34, 37, 180-81. 

 SpeechNow.org is an unincorporated association 

organized under section 527 of the Internal Revenue 

Code. App. 4. SpeechNow.org will make only independent expenditures – that is, expenditures made without consultation or coordination with any candidate 

or party – which it will fund with donations from 

individuals such as Messrs. Keating and Crane and 

Petitioners Fred Young, Brad Russo, and Scott Burkhardt. App. 35-37; see also 2 U.S.C. § 431(17). Under 

its bylaws, SpeechNow.org is required to maintain the 

independence of its expenditures under relevant 

campaign finance regulations, and it is prohibited 

from making direct contributions to candidates. App. 

36. As a result, SpeechNow.org poses no threat of 

corruption. See Citizens United, 130 S. Ct. at 909 

(2010). 

 SpeechNow.org’s operations are transparent. It 

will disclose its independent expenditures and the 

contributions that fund them under 2 U.S.C. § 434(c), 

which applies to persons other than political committees, and it will include disclaimers on its communications under 2 U.S.C. § 441d. App. 51-52. Moreover, 

because SpeechNow.org’s bylaws prevent it from 

accepting earmarked donations, all of its donors who 

contribute more than $200 will be disclosed under 

§ 434(c). App. 41, 43-44. 
4 

 Despite these facts, federal law requires Speech 

Now.org to become a “political committee” or “PAC” 

because it has a “major purpose” of federal campaign 

activity and will raise or spend more than $1,000 

toward that end. See 2 U.S.C. § 431(4); Supplemental 

Explanation & Justification, 72 Fed. Reg. 5595, 5601 

(Feb. 7, 2007). PACs are subject to limits on the contributions they receive and must register with the 

Federal Election Commission (“FEC”) and comply 

with detailed administrative, organizational, and continuous reporting requirements. See 2 U.S.C. §§ 432, 

433, 434(a). 

 As this Court held in Citizens United, “PACs are 

burdensome alternatives; they are expensive to administer and subject to extensive regulations.” 128 

S. Ct. at 897. Those burdens are at least as significant when applied to unincorporated groups such as 

SpeechNow.org as they are when applied to corporations. David Keating has a full-time job and runs 

SpeechNow.org from his home in his spare time. App. 

274. SpeechNow.org has no affiliated corporation to 

help defray its start-up and fundraising costs or pay 

its administrative expenses. App. 50; see also 11 

C.F.R. § 114.5(b). Among many other burdens imposed by PAC status, Mr. Keating will be required to 

register with the FEC before speaking and keep 

detailed records of contributions and expenditures. 11 

C.F.R. §§ 102.1(d), 102.9(a)(4)(i)-(ii), 102.9(b)(2), 102.9(c), 

103.3. He will also have to account for the fair-market 

value of the portion of his home used by the group – 

including such things as telephone and Internet 
5 

connections – in much the same way an individual 

would have to account for a home office on his income 

taxes. App. 50-51. Even to terminate SpeechNow.org’s 

operations, Mr. Keating will have to obtain approval 

from the FEC. 11 C.F.R. § 102.3(a)(1). 

 PACs are also subject to complicated reporting 

obligations, which apply regardless of whether the 

PAC spends money on federal elections during any 

election season. 11 C.F.R. § 104.1(a). The disclosure 

form for PACs – FEC Form 3X – consists of five pages 

of summary information on receipts and disbursements followed by sixteen different “schedules” and 

31 pages of instructions. 11 C.F.R. § 104.2(e)(3).1

These disclosures are due multiple times a year, and 

at different times depending on the year or the 

elections in which the PAC is participating. 11 C.F.R. 

§ 104.5(c). In addition to this general reporting, PACs 

must separately disclose any independent expenditures they make. 11 C.F.R. § 104.5(g). 

 In contrast, groups other than PACs – such as 

MCFL groups2

 and, after Citizens United, corporations and unions – may operate free of the organizational, administrative, and reporting requirements 

1

 FEC Form 3X is available at http://www.fec.gov/pdf/ 

forms/fecfrm3x.pdf. Instructions and Related Schedules are 

available at http://www.fec.gov/pdf/forms/fecfrm3xi.pdf. 2

MCFL groups are 501(c)(4) corporations that meet certain 

additional criteria announced in this Court’s ruling in FEC v. 

Mass. Citizens for Life, Inc. (MCFL), 479 U.S. 238 (1986). See 11 

C.F.R. § 114.10(c) (defining “qualified nonprofit corporations”). 
6 

that apply to PACs. Those groups need only report 

their independent expenditures as they are made. See 

2 U.S.C. § 434(c). FEC Form 5, which is used for 

reporting independent expenditures, is six pages long, 

including instructions. App. 48-49. As a 527 group, 

SpeechNow.org must also report certain information 

to the IRS. See 26 U.S.C. § 527(j). However, those 

reporting obligations apply only when a group 

reasonably anticipates that it will have gross receipts 

of $25,000 or more during a taxable year. Id.

§ 527(j)(5)(D). Moreover, a 527 group is subject to reporting requirements only so long as it wishes to 

maintain its tax-exempt status. Id. § 527(j)(1). 

 In November 2007, SpeechNow.org filed an 

Advisory Opinion Request with the FEC seeking approval to operate SpeechNow.org free of the onerous 

requirements and funding limitations that apply to 

PACs. App. 179-221. Along with the request, Speech 

Now.org submitted two scripts for proposed advertisements calling for the defeat of United States Senator 

Mary Landrieu (D-LA) and United States Representative Dan Burton (R-IN), both of whom had 

supported anti-free-speech campaign finance laws in 

the past. App. 42-43. The group also submitted price 

quotes for the production and airing of the advertisements, which SpeechNow.org wanted to air during 

the 2008 election season. App. 43. SpeechNow.org had 

received enough pledges of support from the individual Petitioners and one other individual to 

finance the production and airing of the ads in the 

relevant locales. However, because SpeechNow.org 
7 

was considered a PAC under the campaign finance 

laws and subject to contribution limits, it could not 

accept the proposed donations to produce and air its 

ads. App. 45-46. 

 In January 2008, the FEC denied SpeechNow. 

org’s advisory opinion request. App. 222-23. 

II. Proceedings Below 

 Petitioners filed this case in the United States 

District Court for the District of Columbia on February 14, 2008, alleging that the campaign finance 

laws violated the First Amendment as applied to 

SpeechNow.org and its donors by both limiting the 

amount any individual could contribute to Speech 

Now.org and by requiring SpeechNow.org to register 

with the FEC and operate as a PAC. App. 286. 

Specifically, Petitioners challenged the registration, 

administrative, and continuous reporting requirements for PACs contained in 2 U.S.C. §§ 431(4), 

431(8), 432, 433, and 434(a) and the contribution 

limits contained in 2 U.S.C. §§ 441a(a)(1)(C) and 

441a(a)(3). 

 Along with their complaint, Petitioners filed a 

motion to preliminarily enjoin the contribution limits, 

which prevented SpeechNow.org from accepting the 

funds necessary to finance its planned advertisements. App. 286-87. The district court denied that 

motion on July 1, 2008. App. 294-95. As a result, 

SpeechNow.org was unable to produce and broadcast 

its advertisements during the 2008 election cycle. 
8 

SpeechNow.org intends to produce and broadcast 

similar ads during the 2010 election cycle and other 

elections in the future. App. 5. Petitioners timely 

appealed the district court’s denial of their preliminary injunction motion. App. 296. 

 While that appeal was pending, the merits of the 

case proceeded in the district court pursuant to 

2 U.S.C. § 437h. Under that provision, district courts 

“immediately shall certify” certain constitutional 

challenges to the Federal Election Campaign Act 

(“FECA”) “to the United States court of appeals for 

the circuit involved, which shall hear the matter 

sitting en banc.” On June 27, 2008, Petitioners made 

a motion to certify five questions to the D.C. Circuit, 

arguing that no discovery or further factual development was necessary. App. 294. On July 29, 2008, the 

district court granted the motion to certify Petitioners’ five questions, but ordered that the FEC be 

permitted to conduct discovery and develop a factual 

record. App. 297. On February 3, 2009, the parties 

completed briefing on proposed findings of fact. App. 

310. The FEC’s proposed findings of fact comprised 

137 pages, including 452 proposed facts and over 

2,000 pages of exhibits. App. 301. Roughly six months 

later, the district court ordered the parties to submit 

a list of disputed and undisputed facts, and, on 

September 28, 2009, the court entered 65 factual 

findings and submitted the case to the D.C. Circuit. 

App. 31-53. 

 On October 26, 2009, the D.C. Circuit consolidated the merits with Petitioners’ preliminary 

injunction appeal. App. 6. On March 26, 2010, the en 
9 

banc D.C. Circuit issued its ruling. Recognizing 

that SpeechNow.org’s independent expenditures raise 

no concerns about corruption, the court held that 

the contribution limits in 2 U.S.C. §§ 441a(a)(1)(C) 

and 441a(a)(3) were unconstitutional as applied to 

SpeechNow.org and its individual contributors. App. 

20. As a result, the court vacated the district court’s 

order denying the Petitioners’ motion for preliminary 

injunction. The D.C. Circuit also held, however, that 

SpeechNow.org could constitutionally be required to 

register and operate as a PAC as soon as it raised 

more than $1,000 to fund its independent expenditures. App. 25. 

--------------------------------- ♦ ---------------------------------

REASONS FOR GRANTING THE PETITION 

 The court of appeals disregarded recent Supreme 

Court precedent on an issue of national importance – 

political speech – where burdensome regulations and 

uncertainty pose an unacceptable risk of chilling the 

exercise of core First Amendment rights. 

 In Citizens United v. FEC, this Court recently 

reaffirmed a fundamental constitutional principle: 

Independent expenditures are core political speech 

that create no concerns about corruption and thus 

may not be limited. 130 S. Ct. 876, 909 (2010). As a 

result, the Court struck down 2 U.S.C. § 441b, which 

prohibited corporations from making independent 

expenditures unless they created separate segregated 

funds or “PACs” to do their independent spending for 
10 

them. “PACs,” the Court recognized, “are burdensome 

alternatives” which are “expensive to administer and 

subject to extensive regulations.” Id. at 897. Just as 

the government may not ban speech directly, held the 

Court, so it may not achieve the same result through 

indirect means such as requiring a corporation to 

speak through a heavily regulated PAC. Id. at 897-98. 

 Roughly two months later, the D.C. Circuit decided SpeechNow.org v. FEC. The court followed Citizens United in striking down a limit on contributions 

to the group. App. 20. However, despite recognizing that SpeechNow.org poses no threat of corruption 

and will comply with relevant disclosure and disclaimer laws, the D.C. Circuit held that the government could require the group to become a PAC in 

order to make independent expenditures. App. 24-25. 

 The D.C. Circuit’s decision conflicts with Citizens 

United in at least two significant ways. First, 

whereas Citizens United concluded that PACs are 

“burdensome alternatives” as a matter of law, the 

D.C. Circuit concluded that requiring SpeechNow.org 

to speak through a PAC did not amount to a 

significant burden on its speech. App. 22-25. 

 Second, whereas Citizens United subjected the 

PAC alternative to strict scrutiny, the D.C. Circuit 

treated PAC status as merely a disclosure law that 

triggered only intermediate scrutiny. App. 20-21. This 

alone was erroneous, but the D.C. Circuit also misapplied intermediate scrutiny, both by placing the 

 
11 

onus on SpeechNow.org to demonstrate that the PAC 

requirements burdened its speech and by ignoring 

the more narrowly tailored disclosure and disclaimer 

provisions in 2 U.S.C. §§ 434(c) and 441d that Congress created for individuals and groups that make 

only independent expenditures. Section 441d is the 

very same disclaimer provision this Court upheld for 

corporations in Citizens United. Section 434(c) is substantially similar to § 434(f ), the disclosure provision 

upheld in Citizens United, 130 S. Ct. at 914, except 

that § 434(c) provides more information because its 

disclosure thresholds are lower. As a result, there is 

simply no constitutionally adequate grounds for requiring SpeechNow.org to become a PAC. 

 In many ways, the D.C. Circuit’s decision turned 

Citizens United on its head. In Citizens United, this 

Court concluded that PAC requirements are too 

burdensome for corporations, yet the D.C. Circuit has 

now concluded that those same requirements are not

too burdensome for a small association of individuals. 

In Citizens United, this Court held that First 

Amendment rights cannot turn on the identity of the 

speaker, yet, following the D.C. Circuit’s ruling, an 

unincorporated association like SpeechNow.org must 

become a PAC in order to make unlimited independent expenditures, while corporations and unions 

may do so without becoming a PAC. In Citizens 

United, this Court recognized that complex rules chill 

speech, and noted that the “[c]ampaign finance regulations now impose ‘unique and complex rules’ on ‘71 

distinct entities.’ ” 130 S. Ct. at 895. Yet the D.C. 
12 

Circuit has now created distinct entity number 72: 

the “independent expenditure PAC,” which is not 

subject to limits on amounts contributed to it but still 

must comply with the other regulations that apply to 

PACs. 

 The D.C. Circuit’s decision raises important issues of national significance, because its effect will be 

to chill speech that this Court has long sought to 

protect. The result of the decision is the imposition of 

greater burdens on unincorporated associations that 

wish to make independent expenditures than now 

exist for large corporations and unions that wish to 

do the same thing. 

 Furthermore, the D.C. Circuit’s decision exacerbated an already confusing standard for determining 

who is and who is not a PAC. The FEC has long used 

the so-called “major purpose” test to determine which 

groups must become PACs. Under this test, if the 

FEC determines, after a fact-intensive, case-by-case 

analysis, that a group has spent a sufficiently large 

percentage of its funds on federal campaign activity – 

even entirely independent advocacy – it must become 

a PAC. See Supplemental Explanation & Justification, 72 Fed. Reg. 5595, 5601 (Feb. 7, 2007). 

 Although the D.C. Circuit’s conclusion that Speech 

Now.org can constitutionally be required to become a 

PAC was not based expressly on the group’s “major 

purpose,” the court’s decision will allow the FEC to 

make every unincorporated group a PAC if it spends 

too much money on independent expenditures. Indeed, 
13 

the D.C. Circuit’s decision raises the question of 

whether any group, corporate or non-corporate, must 

become a PAC if the group either cannot demonstrate 

that PAC status is sufficiently burdensome or spends 

enough money on independent expenditures to cross 

the “major purpose” threshold. Accepting this case for 

review would give the Court the opportunity to clarify 

that the proper constitutional touchstone for PAC 

status is not the amount of independent speech in 

which a group engages, but whether it poses a threat 

of corruption. 

 This Court’s decision in Citizens United was 

crystal clear: “If the First Amendment has any force, 

it prohibits Congress from fining or jailing citizens, or 

associations of citizens, for simply engaging in political speech.” 130 S. Ct. at 904. Petitioners are a group 

of citizens who wish to spend their own money on 

their own political speech. Under the D.C. Circuit’s 

ruling, they must become a PAC – and must register 

with the government and comply with numerous 

regulatory burdens – just to be able to speak. Cf. id. 

at 895-96 (analogizing complex campaign finance 

laws to a prior restraint). The D.C. Circuit’s ruling 

conflicts with Citizens United and should be reversed. 
14 

I. In Holding That an Association of Citizens 

Must Become a PAC in Order to Make 

Unlimited Independent Expenditures, the 

D.C. Circuit’s Decision Directly Conflicts 

with This Court’s Decision in Citizens 

United v. FEC. 

A. The D.C. Circuit disregarded this 

Court’s holding that PACs are burdensome as a matter of law. 

 For over twenty years, this Court has recognized 

the significant burdens PACs impose on those who 

wish to spend money on speech. See, e.g., FEC v. 

Mass. Citizens for Life, Inc. (MCFL), 479 U.S. 238, 

253-55 (1986) (plurality opinion); FEC v. Wis. Right to 

Life, Inc. (WRTL II), 551 U.S. 449, 477 n.9 (2007). As 

the Court held in Citizens United, 

PACs are burdensome alternatives; they are 

expensive to administer and subject to extensive regulations. For example, every PAC 

must appoint a treasurer, forward donations 

to the treasurer promptly, keep detailed records of the identities of the persons making 

donations, preserve receipts for three years, 

and file an organizational statement and 

report changes to this information within 10 

days. And that is just the beginning. PACs 

must file detailed monthly reports with the 

FEC, which are due at different times depending on the type of election that is about 

to occur[.] . . . PACs have to comply with 

these regulations just to speak. 

130 S. Ct. at 897 (internal citations omitted). 
15 

 As a result, despite the existence of the PAC 

alternative, the Court concluded that “[§] 441b’s prohibition on corporate independent expenditures is 

thus a ban on speech.” Id. at 898; see also id. at 897 

(stating that “the option to form PACs does not alleviate the First Amendment problems with § 441b”). 

Accordingly, the Court treated both § 441b’s outright 

ban on corporate independent expenditures and the 

PAC alternative as essentially indistinguishable for 

First Amendment purposes and subjected both to 

strict scrutiny. Id. at 898. Because Citizens United’s 

independent expenditures posed no threat of corruption, the Court struck down both requirements as a 

violation of the First Amendment. Id. at 897-98, 913. 

Later, the Court upheld the disclosure and disclaimer 

provisions for those who make electioneering communications as the appropriately narrowly tailored 

means of achieving the government’s interest in disclosure. Id. at 913-916. 

 The same approach should logically apply to an 

unincorporated group like SpeechNow.org. While the 

precise statutory provisions that apply to Speech 

Now.org are different from those that applied to 

corporations, the result is the same: SpeechNow.org is 

prohibited from making unlimited independent expenditures unless it becomes a PAC. As a group that 

will devote the majority of its funds to express advocacy, SpeechNow.org is defined as a “political 

committee” and may not make independent expenditures without complying with all the organizational 
16 

and reporting obligations for a PAC. See 2 U.S.C. 

§ 431(4); App. 235-40. 

 The PAC requirements are thus every bit as 

burdensome for groups like SpeechNow.org as they 

were for corporations. Like corporations prior to 

Citizens United, SpeechNow.org must register with 

the FEC, appoint a treasurer, and comply with all the 

other expensive and onerous restrictions that apply to 

PACs. See 2 U.S.C. §§ 432, 433, 434(a). Like corporations, SpeechNow.org and similar groups must first 

establish a PAC “before they can speak.” Citizens 

United, 130 S. Ct. at 898. And “[g]iven the onerous 

restrictions” of PAC status, SpeechNow.org or other 

groups “may not be able to establish a PAC in time to 

make its views known regarding candidates and 

issues in a current campaign.” Id. The PAC requirement therefore operates as a “restriction on the 

amount of money” that SpeechNow.org may spend 

during a campaign, just as it would for a corporation. 

Id. 

 The D.C. Circuit disregarded Citizens United on 

this point entirely and treated PAC status as a run-ofthe-mill disclosure requirement. Noting that Speech 

Now.org “intends to comply with the disclosure 

requirements applicable to those who make independent expenditures” under § 434(c), the D.C. Circuit 

upheld the PAC requirements on the ground that 

they allegedly imposed little additional burden on 

SpeechNow.org. App. 23. 

 The D.C. Circuit thus ignored a central point of 

this Court’s entire analysis of the PAC requirements 
17 

in Citizens United – that PACs are unduly burdensome and thus a significant regulation of speech as a 

matter of law. Indeed, the Court in Citizens United

concluded that PAC status burdens speech despite 

the fact that Citizens United itself had previously 

operated a PAC. See 130 S. Ct. at 929 (Stevens, J., 

dissenting) (noting that Citizens United operated a 

PAC “with millions of dollars in assets”). The Court 

came to similar conclusions in both MCFL and WRTL 

II. As it explained in MCFL, the group’s previous 

operation of a political committee did not change the 

conclusion that PAC status is burdensome “for [its] 

speech may well have been inhibited due to its inability to form such an entity before that date. Furthermore, other organizations comparable to MCFL 

may not find it feasible to establish such a committee, 

and may therefore decide to forgo engaging in 

independent political speech.” MCFL, 479 U.S. at 255 

n.8; see also WRTL II, 551 U.S. at 477 n.9. 

 In stark contrast to this Court’s long recognition 

that PAC requirements are burdensome for groups, 

like MCFL and Citizens United, that make independent expenditures, the D.C. Circuit stated “[b]ecause 

SpeechNow intends only to make independent 

expenditures, the additional reporting requirements 

that the FEC would impose on SpeechNow if it were a 

political committee are minimal.” App. 23. Indeed, the 

D.C. Circuit went as far as to directly contradict this 

Court’s conclusion that PAC regulations such as the 

necessity of appointing a treasurer and retaining 

records are burdensome. Citizens United, 130 S. Ct. 
18 

at 897. As the D.C. Circuit stated, “[n]or do the 

organizational requirements that SpeechNow protests, such as designating a treasurer and retaining 

records, impose much of an additional burden upon 

SpeechNow, especially given the relative simplicity 

with which SpeechNow intends to operate.” App. 23.3

 

3

 The D.C. Circuit claimed that Petitioners conceded at oral 

argument that PAC reporting will not impose an additional 

burden on SpeechNow.org. App. 23. However, the question posed 

at this point in the argument was not whether the burdens of 

PACs were minimal, but whether, assuming SpeechNow.org were 

relieved of all other aspects of PAC status, reporting independent 

expenditures in the same manner as a PAC would constitute 

much of an additional burden over reporting on the forms used 

by non-PACs. 

Judge Sentelle: Assume you don’t have to be a [PAC], 

assume you’ve won that part . . . and we’re just talking about whether you’re nonetheless required under 

the reporting requirements. . . . So, just calling you a 

[PAC] . . . and not making you do anything except the 

reporting is not really going to impose an additional 

burden on you, right? If everything else [is] unconstitutional except that, the reporting requirement by 

itself – 

App. 129. The answer, as counsel stated several times during 

oral argument, is that the precise forms that PACs use to report 

independent expenditures are similar to the form other groups 

use. App. 123-25, 129-30. But as counsel also pointed out, it is 

not “appropriate then to conclude from that that the burden is 

the same.” App. 124. The additional burdens associated with 

being a PAC are, among other things, the “burden that the 

Supreme Court talked about [in Citizens United], having to plow 

through hundreds of rules to decide all of your obligations,” App. 

124-25; “appointing a treasurer [and] having to forward all 

receipts to the treasurer within a certain amount of time,” App. 

126-27; “the time that it takes to set up the committee,” App. 

(Continued on following page) 
19 

 If the D.C. Circuit’s treatment of PAC status as a 

mere incremental burden over other disclosure laws 

were appropriate, this Court would have undoubtedly 

taken the same approach in Citizens United. Citizens 

United had to comply with the far less burdensome 

provisions of 2 U.S.C. § 434(f ), which require disclosure for those who make electioneering communications. See Citizens United, 130 S. Ct. at 914. Like 

the D.C. Circuit, this Court could have concluded that 

PAC regulations were simply additional disclosure 

requirements and thus a mere incremental burden 

over the other disclosure laws with which Citizens 

United had to comply. Indeed, the Court could have 

done the same thing in MCFL. See 479 U.S. at 262 

(noting that MCFL would disclose under § 434(c)). 

 The Court did not take this approach, however. 

In Citizens United, it recognized PAC status for what 

it was – a uniquely burdensome regulation of speech 

that will “necessarily reduce[ ] the quantity of expression by restricting the number of issues discussed, 

the depth of their exploration, and the size of the 

128; having to track and report every penny that goes through 

the organization, App. 135-36; and having to comply with these 

burdens before even knowing whether the group has raised 

enough money to speak. App. 131-32. In short, as counsel stated 

during oral argument, Petitioners’ argument “is precisely the 

point the Supreme Court made in Citizens United. In other 

words, we aren’t saying that it’s just a matter of filling out a 

precise form and that one form is more burdensome than another, we are saying that the entire mechanism of having to spend 

through a [PAC], create a separate [PAC], become an entirely 

different type of organization” is the burden. App. 122. 
20 

audience reached.” 130 S. Ct. at 898 (quoting Buckley 

v. Valeo, 424 U.S. 1, 19 (1976)). This conclusion applies regardless of the precise circumstances and 

abilities of particular speakers for “[p]rolix 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.’ ” Id. at 889 (second alteration in original); see also id. at 890-91 (declining to adopt standards based on particular circumstances of particular 

speakers). Accordingly, this Court did not hold that 

corporations could only make independent expenditures through their PACs; it held that they could 

make unlimited independent expenditures without 

the necessity of creating PACs at all. 

 In holding to the contrary, the D.C. Circuit applied precisely the case-by-case approach that this 

Court rejected in Citizens United. See id. at 891 

(“Courts, too, are bound by the First Amendment. We 

must decline to draw, and then redraw, constitutional 

lines based on the particular media or technology 

used to disseminate political speech from a particular 

speaker.”) As this Court stated, “First Amendment 

standards . . . ‘must give the benefit of any doubt to 

protecting rather than stifling speech.’ ” Id. (quoting 

WRTL II, 551 U.S. at 469). 
21 

B. The D.C. Circuit failed to apply strict 

scrutiny to the PAC requirements and 

it misapplied intermediate scrutiny. 

 It is black-letter First Amendment law 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.’ ” Citizens United, 130 S. Ct. at 898 (quoting 

WRTL II, 551 U.S. at 464); see also Davis v. FEC, 128 

S. Ct. 2759, 2772 (2008); MCFL, 479 U.S. at 256, 261. 

Consistent with this general rule, the Court in 

Citizens United subjected both § 441b’s outright ban 

on corporate independent expenditures and the PAC 

alternative to strict scrutiny and struck them down. 

130 S. Ct. at 897-98, 913. Later, applying intermediate scrutiny, the Court upheld narrower and far less 

burdensome disclosure and disclaimer provisions. Id. 

at 913-16. 

 SpeechNow.org should be treated the same as the 

corporation at issue in Citizens United. SpeechNow. 

org’s independent expenditures pose no threat of 

corruption. The PAC requirements that apply to 

SpeechNow.org are virtually identical to those that 

applied to Citizens United. See 11 C.F.R. § 100.5(b) 

(defining “separate segregated funds” as PACs). And 

SpeechNow.org will comply with disclosure and disclaimer provisions that are virtually identical to those 

this Court upheld in Citizens United. This case is 

therefore on all fours with Citizens United and the 

outcome should be the same. 
22 

 The D.C. Circuit did not reach the same result, 

however. Inexplicably, the D.C. Circuit chose to carve 

out PAC requirements as they applied to Speech 

Now.org and to treat them like simple disclosure laws 

rather than the inherently burdensome speech restrictions that they are. App. 20-25. In so doing, the 

D.C. Circuit not only failed to apply strict scrutiny to 

the PAC requirements; it completely misapplied even 

intermediate scrutiny. In short, under any level of 

scrutiny, SpeechNow.org cannot be required to become a PAC simply to make independent expenditures. 

 Intermediate scrutiny is not an invitation to 

uphold any laws that can be described as serving the 

ends of disclosure. Indeed, as this Court held in Davis 

v. FEC, disclosure laws “ ‘cannot be justified by a 

mere showing of some legitimate governmental interest.’ ” 128 S. Ct. at 2775 (quoting Buckley, 424 U.S. at 

64). Instead, the government must show a “substantial relation” between its interests in disclosure and 

the information sought to be disclosed. Id. Further, 

the “strength of the governmental interest must 

reflect the seriousness of the actual burden on First 

Amendment rights.” Id. 

 As shown in the previous section, the D.C. Circuit ignored this Court’s conclusion from Citizens 

United that PACs are burdensome as a matter of law. 

But the D.C. Circuit also misunderstood how the 

narrowly tailored disclosure provisions that Congress 

itself created for those who make independent 

expenditures – 2 U.S.C. §§ 434(c) & 441d – affected 
23 

the constitutional analysis. Davis is instructive on 

this point. In Davis, this Court struck down disclosure requirements that were designed to implement the “millionaires amendment,” which the Court 

had also invalidated. 128 S. Ct. at 2775. The government argued that the disclosure requirements should 

be upheld because they would yield additional relevant information, even though the candidates subjected to the amendment were already required to 

disclose under provisions that applied to all candidates. Brief of Appellee at 28, Davis v. FEC, 128 

S. Ct. 2759 (2008) (No. 07-320). The Court rejected 

this argument, however, and concluded that without 

the millionaires amendment, “the burden imposed by 

[the amendment’s disclosure requirements] cannot be 

justified.” 128 S. Ct. at 2775. 

 Both Davis and Citizens United support the principle that disclosure laws must be narrowly tailored 

to fit their legitimate ends. See also, e.g., Ward v. 

Rock Against Racism, 491 U.S. 781, 798 (1989) 

(recognizing that the government must demonstrate 

narrow tailoring under intermediate scrutiny). Moreover, everything the D.C. Circuit claimed as a justification for requiring SpeechNow.org to become a PAC 

– for example, that SpeechNow.org could allegedly 

avoid reporting contributions made exclusively for 

administrative expenses4

 and that requiring Speech 

4

 In fact, because SpeechNow.org does not accept earmarked 

donations, it will end up disclosing all contributions that come 

within the terms of § 434(c). App. 120-21, 268. 
24 

Now.org to become a PAC would facilitate the 

detection of violations of other laws – could just as 

easily be said about Citizens United or any MCFL

group. Yet in both cases, this Court refused to require 

such groups to become PACs. See Citizens United, 130 

S. Ct. at 897-98; MCFL, 479 U.S. at 252-56 (plurality 

opinion). 

 The D.C. Circuit also misapplied Buckley and 

McConnell v. FEC, 540 U.S. 93 (2003), on which it relied for the proposition that this Court “has consistently 

upheld organizational and reporting requirements 

against facial challenges.” App. 21. In fact, both cases 

support Petitioners’ argument. 

 The portion of Buckley on which the D.C. Circuit 

relied did not facially uphold PAC requirements, as 

the court implied. See App. 21 (citing Buckley, 424 

U.S. at 66). Instead, it was a discussion of the 

“general principles” that apply to disclosure. Indeed, 

this Court ended that discussion with a point that 

supports Petitioners’ argument – that “disclosure 

requirements, as a general matter, directly serve substantial governmental interests” but “[i]n determining whether these interests are sufficient to 

justify the requirements we must look to the extent of 

the burden that they place on individual rights.” 424 

U.S. at 68 (emphasis added). It then went on to 

uphold a narrowly tailored disclosure requirement – 

old § 434(e) – that imposed a limited burden on First 

Amendment rights. Id. at 75-82. Section 434(e) is the 
25 

precursor to § 434(c), which Petitioners believe should

apply to SpeechNow.org.5

 Similarly, in the portion of McConnell on which 

the D.C. Circuit relied, this Court upheld the same 

narrow disclosure and disclaimer provisions that it 

upheld in Citizens United. See 540 U.S. at 196. Those 

provisions require the same disclaimers SpeechNow.org 

will utilize for its independent expenditures and disclosures that are substantially the same as those 

required by § 434(c). See id. 

 In short, Buckley, McConnell, Davis, and Citizens 

United confirm that SpeechNow.org cannot be forced 

to become a PAC simply for the sake of disclosure. 

SpeechNow.org will comply with the same disclosure 

and disclaimer provisions that apply to any speaker 

who poses no threat of corruption. No matter what 

level of scrutiny applies, there are no good grounds 

for requiring SpeechNow.org to become a PAC anymore than there were for Citizens United. 

5

 In 1979, Congress amended § 434(e), raising the reporting 

threshold from $100 to $250 and renumbering the provision as 

§ 434(c). See Federal Election Campaign Act Amendments of 

1979, Pub. L. No. 96-187, 93 Stat. 1339 (Jan. 8, 1980). 
26 

II. This Case Raises Important Issues of 

National Significance Regarding the 

Scope of Regulation of Groups That Make 

Independent Expenditures. 

 The D.C. Circuit disregarded the importance of 

independent political speech under our constitutional 

scheme. The perverse result of the D.C. Circuit’s 

decision is that unincorporated associations like 

SpeechNow.org face a greater burden in making 

independent expenditures than do corporations or 

unions. That result cannot be squared with this 

Court’s precedents. 

Citizens United stands not only for the proposition that the government may not ban certain 

speakers from making independent expenditures, but 

also that it may not so burden independent political 

speech that speakers will avoid the effort altogether. 

See 130 S. Ct. at 898-99. Indeed, the principle that 

burdensome laws chill speech virtually leaps out from 

every page of the Court’s decision. “The First Amendment does not permit laws that force speakers to 

retain a campaign finance attorney . . . or seek declaratory rulings before discussing the most salient political issues of our day.” Id. at 889. “[P]olitical speech 

. . . is stifled if the speaker must first commence a 

protracted lawsuit.” Id. at 895. “As additional rules 

are created for regulating political speech, any speech 

arguably within their reach is chilled.” Id. The 

campaign finance laws “function as the equivalent of 

prior restraint by giving the FEC power analogous to 
27 

licensing laws implemented in 16th- and 17thcentury England . . . .” Id. at 896. 

Citizens United is not alone in this respect. This 

Court has long recognized that speech needs breathing room to survive. See N.Y. Times Co. v. Sullivan, 

376 U.S. 254, 271-72 (1964). Indeed, in Buckley, the 

Court upheld limits on direct contributions because 

they focused on “the narrow aspect of political association where the actuality and potential for 

corruption have been identified while leaving persons 

free to engage in independent political expression.” 

424 U.S. at 28 (emphasis added); see also Citizens 

United, 130 S. Ct. at 901-02 (relying on Buckley’s distinction between direct contributions and independent expenditures); id. at 908 (stating that “[l]imits 

on independent expenditures, such as § 441b, have a 

chilling effect extending well beyond the Government’s 

interest in preventing quid pro quo corruption”). 

 As the Court stated in Citizens United, “it is our 

law and our tradition that more speech, not less, is 

the governing rule.” Id. at 911. Put more simply, “the 

tie goes to the speaker, not the censor.” WRTL II, 551 

U.S. at 474; see also Citizens United, 130 S. Ct. at 898 

(stating that “political speech must prevail against 

laws that would suppress it, whether by design or 

inadvertence”). 

 The D.C. Circuit simply did not give this principle the weight it deserves. In ruling that groups like 

SpeechNow.org must become PACs in order to make 

unlimited independent expenditures, the D.C. Circuit 
28 

has ensured that the independent speech of such 

groups will be chilled. As this Court noted in Citizens 

United, the burden of PAC regulations “might explain 

why fewer than 2,000 of the millions of corporations 

in this country have PACs.” Citizens United, 130 

S. Ct. at 897. Supporting the Court’s insight, a study 

of the 2000 election cycle found that PACs spend 

approximately half of their total revenues on compliance costs and fundraising. See Stephen D. 

Ansolabehere et al., Why Is There So Little Money in 

American Politics?, 17 J. Econ. Persp. 105, 108 

(2003). Indeed, during the 2005-2006 election cycle, 

there were only 1,797 PACs that, like SpeechNow.org, 

were not affiliated with corporations or unions (otherwise known as “non-connected” PACs). App. 323. 

 The effect of the D.C. Circuit’s ruling is to create 

yet another distinct regulated entity – the “independent expenditure PAC.” Other groups have already 

begun asking the FEC’s permission to operate such 

PACs, which will prompt “[g]overnment officials [to] 

pore over each word” of an advisory opinion request 

to determine whether the speakers may take advantage of the D.C. Circuit’s ruling. Citizens United, 

130 S. Ct. at 896.6

 It is still unclear whether existing 

6

See FEC Advisory Op. Request 2010-09 (Club for Growth), 

available at http://saos.nictusa.com/aodocs/1139699.pdf; FEC Advisory Op. Request 2010-11 (Commonsense Ten), available at 

http://saos.nictusa.com/aodocs/1140639.pdf. The FEC’s responses 

to these requests are available at http://saos.nictusa.com/ 

aodocs/AO%202010-09.pdf and http://saos.nictusa.com/aodocs/ 

AO%202010-11.pdf. 
29 

rules will govern these new committees or whether 

the FEC will issue a new set of rules that apply to 

them. See Amanda Adams, FEC Will Eventually Consider Guidance for Disclosing Independent Expenditures, OMB Watch (July 16, 2010), http://www. 

ombwatch.org/node/11141. What is clear is that many 

groups will refrain from speaking rather than 

undertaking the effort to discover how they will be 

regulated if they speak about politics. See Citizens 

United, 130 S. Ct. at 895-96 (noting that the necessity 

of filing advisory opinion requests and navigating 

complicated rules chill speech). 

 The D.C. Circuit has held, in effect, that although 

PACs impose too great a burden on corporations that 

wish to make independent expenditures, the burden 

is entirely acceptable for small, unincorporated associations of citizens like SpeechNow.org. That result 

will chill political speech, and cannot be squared with 

this Court’s decision in Citizens United. 

III. This Case Provides the Court with the 

Opportunity to Clarify the Scope and 

Application of the “Major Purpose” Test. 

 The FEC has long taken the position – and, 

indeed, argued in this case – that it is constitutionally 

permissible to require groups like SpeechNow.org to 

become PACs so long as they have the “major purpose” of “Federal campaign activity” and otherwise 

meet the definition of political committee. App. 224. 

Under this test, the FEC conducts a far-reaching 
30 

inquiry to determine whether a group’s spending on 

federal campaign activity predominates over its other 

speech and activities. See Supplemental Explanation 

& Justification, 72 Fed. Reg. 5595, 5597 (Feb. 7, 

2007). 

 SpeechNow.org does not dispute that its major 

purpose is to make independent expenditures, but it 

does dispute that this purpose answers the question 

of whether it can be required to become a PAC. Under 

Citizens United, corporations and unions are now 

entitled to make unlimited independent expenditures 

without creating PACs. It follows that SpeechNow.org 

must be treated the same. Absent any threat of corruption – which SpeechNow.org does not present – 

the government cannot justify requiring it to speak 

through a PAC. 

 Although the D.C. Circuit did not rely on Speech 

Now.org’s “major purpose” in upholding the PAC 

requirements, this case provides the Court with the 

opportunity to bring much needed clarity to the scope 

and application of the so-called “major purpose” test. 

The FEC has relied on an incorrect reading of 

Buckley and MCFL – in this case and others – in 

concluding that “major purpose,” rather than a threat 

of corruption, is the proper constitutional touchstone 

for determining whether a group can be required to 

become a PAC in order to speak. See 72 Fed. Reg. at 

5597. The D.C. Circuit’s decision compounded this 

error by upholding the application of PAC status to 

SpeechNow.org despite the fact that the group will 

only make independent expenditures, as corporations 
31 

and unions are now entitled to do. The D.C. Circuit’s 

decision thus raises questions as to whether corporations and unions, even after Citizens United, will be 

required to become PACs once they cross the major 

purpose threshold. Resolving the question presented 

in this case in SpeechNow.org’s favor would bring 

clarity to the law and would preserve free speech by 

making clear that only groups whose activities pose a 

threat of corruption need register as PACs. 

A. Originally introduced as a shield for 

political speech, “major purpose” has 

since become a sword wielded by the 

government as a regulatory tool. 

 This Court first used the term “major purpose” in 

Buckley. But it did so not as part of a holding that 

major purpose was the sole or even primary factor for 

determining whether a group could constitutionally 

be required to become a PAC. Instead, the Court used 

major purpose as a means of demonstrating that the 

definition of “political committee,” like the definitions 

of other terms in FECA, was appropriately limited to 

certain types of federal campaign activity in order to 

avoid problems of vagueness and overbreadth. In 

short, the purpose of this discussion in Buckley was to 

narrow the definition of political committee to provide 

a shield for free speech. Major purpose is thus, at 

most, a necessary condition for the imposition of PAC 

status, but it is far from constitutionally sufficient in 

all cases. 
32 

 The Court’s discussion of major purpose in Buckley did not arise in the context of a challenge to the 

definition of political committee at all, because the 

definition was not challenged in the case. See 424 

U.S. at 60-61. It arose in the context of a challenge to 

2 U.S.C. § 434(e), a disclosure provision that applied 

to persons, other than political committees, who spent 

money “for the purpose of influencing” the nomination or election of federal candidates. See 424 U.S. 

at 77. In assessing that challenge, the threshold 

question was whether the phrase “for the purpose of 

influencing” rendered § 434(e) vague and overbroad. 

 In answering that question, the Court took 

essentially the same approach it had taken with the 

terms “contribution” and “expenditure” – it sought to 

determine whether it could construe § 434(e) narrowly and remain “consistent with the legislature’s 

purpose.” Id. at 78. Thus, the Court first noted that it 

had construed the definitions of “contribution” and 

“expenditure” in a manner that reached only activity 

that was within the core area Congress sought to 

regulate. Id. at 79-80. It then did the same thing with 

the term “political committee” and noted that lower 

courts had construed the definition to avoid chilling 

the speech of advocacy groups. Id. at 79 & n.106. As 

the Court stated, “To fulfill the purposes of the Act 

[“political committee”] need only encompass organizations that are under the control of a candidate or the 

major purpose of which is the nomination or election 

of a candidate.” Id. at 79. So limited, the expenditures 

of political committees are “within the core area 
33 

sought to be addressed by Congress. They are, by 

definition, campaign related.” Id. 

Buckley does not support the FEC’s view that it 

is constitutional to apply PAC status to a group so 

long as it raises or spends in excess of $1,000 and has 

the major purpose of federal campaign activity. That 

is so for two reasons. First, the actual language this 

Court used was far narrower than campaign activity 

or even express advocacy. It pertained only to groups 

“under the control of a candidate” or whose major 

purpose is “the nomination or election of a candidate.” 

Id. (emphasis added). The Court’s use of the singular 

here is significant, for it is consistent with one of the 

purposes for which FECA was enacted – to prevent 

the proliferation of committees used by candidates to 

skirt contribution limits and disclosure provisions. 

See id. at 62 n.71; see also Herbert E. Alexander, 

Financing Politics: Money, Elections, and Political 

Reform 25-26 (4th ed. 1992). As narrowed in Buckley, 

the definition of political committee applies to groups 

controlled by a candidate or whose purpose is to elect 

a specific candidate, thereby preventing candidates 

from using multiple committees to raise funds outside 

the limits or to avoid disclosure. Cf. Buckley, 424 U.S. 

at 56 (“Extensive reporting, auditing, and disclosure 

requirements applicable to both contributions and 

expenditures by political campaigns are designed to 

facilitate the detection of illegal contributions.”). 

 Second, avoiding vagueness and overbreadth 

through a narrowing construction does not render a 

statute constitutional in other respects. See, e.g., 
34 

United States v. Thirty-Seven (37) Photographs, 402 

U.S. 363, 373 (1971) (stating that courts impose 

narrowing constructions specifically “to avoid decision 

of constitutional questions”). The Court’s approach to 

expenditure limits in Buckley makes that clear. Even 

after narrowing the definition of expenditure to cover 

spending for express advocacy, the Court still applied 

strict scrutiny and struck the expenditure limits 

down. See 424 U.S. at 43-44, 51. 

Buckley’s discussion of major purpose thus supports – at most – the proposition that a major purpose 

of supporting or opposing a candidate is necessary for 

the imposition of PAC status, but it is not constitutionally sufficient standing alone. Nevertheless, the 

FEC has long relied on dicta from MCFL in which the 

Court stated, “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.” 479 U.S. at 262 (emphasis added). As a 

statutory matter, this statement is a truism that 

supports, at most, the proposition that a different 

analysis might apply in the event that MCFL’s 

spending increased. Read in this manner, the MCFL

dicta is consistent with the Court’s understanding in 

Buckley that a limiting construction, such as major 

purpose, is not the last step in the constitutional 

analysis, but the first. See 424 U.S. at 45-51. 

 Indeed, the FEC’s position is not supported by 

MCFL itself. In MCFL, the Court held that the government could not ban a small nonprofit corporation’s 
35 

independent expenditures or require it to speak 

through a PAC because the group posed no threat of 

corruption. 479 U.S. at 263. The Court did not hold 

that a major purpose of federal campaign activity was 

a separate and independent constitutional ground for 

requiring such a group to speak through a PAC. 

Indeed, the Court could not have done so, because the 

FEC conceded that MCFL had no such major purpose. See id. at 252 n.6. As this Court stated in 

McConnell, “[w]e have long rigidly adhered to the 

tenet never to formulate a rule of constitutional law 

broader than is required by the precise facts to which 

it is to be applied, for the nature of judicial review 

constrains us to consider the case that is actually 

before us.” 540 U.S. at 192 (internal quotation marks 

and citation omitted). 

 In sum, the FEC has turned rulings from Buckley

and MCFL that protected speech on their heads. Major purpose, once a shield against overregulation, has 

become the justification for regulating independent 

expenditures that this Court has said may not be 

limited. 

B. The “major purpose” test as currently 

applied is inconsistent with this Court’s 

decisions in Buckley and Citizens United. 

 The major purpose test is an invitation to the 

FEC to conduct a profoundly burdensome inquiry 

into every aspect of a group’s activities. Granting 

certiorari in this case would allow this Court to 
36 

provide clarity to the law and appropriate protection 

for political speech by ruling that the potential for 

corruption, not major purpose alone, is the appropriate constitutional touchstone for determining PAC 

status. Groups such as SpeechNow.org, that make no 

direct contributions to candidates and that will 

disclose under § 434(c), cannot be required to become 

political committees in order to speak. 

 The major purpose test conflicts with this Court’s 

precedents in three respects. 

 First, the major purpose test replaces the strict 

scrutiny that typically applies to laws that burden 

speech with a case-by-case inquiry that turns on the 

extent to which a group engages in protected speech. 

Compare 72 Fed. Reg. at 5596-97, 5601-02 with

WRTL II, 551 U.S. at 478 (“A court applying strict 

scrutiny must ensure that a compelling interest 

supports each application of a statute restricting 

speech.”) (emphasis in original). The major purpose 

test requires no demonstration of a compelling interest or narrow tailoring, and essentially places the 

burden on groups to demonstrate that they have not 

spent too much money on speech. 

 Second, in direct conflict with Citizens United, 

Davis, and Buckley, the major purpose test imposes 

restrictions on speakers based on the amount of 

money they spend on speech. As this Court stated in 

Citizens United, the First Amendment’s protections 

do not depend on the speaker’s financial ability to 

engage in public discussion. 130 S. Ct. at 904; see also
37 

Davis, 128 S. Ct. at 2773-74; Buckley, 424 U.S. at 49. 

The major purpose test violates this principle in a 

particularly perverse manner, by making it far more 

likely that smaller groups that make independent 

expenditures will be forced to become PACs than 

larger groups. 

 For example, General Motors could spend millions on independent expenditures without ever 

coming close to having the major purpose of electoral 

advocacy. SpeechNow.org or a similar group will cross 

the major purpose threshold with expenditures that 

are only a tiny fraction of that amount. The result is a 

de facto burden based on the identity of the speaker 

in that small, ideological groups will virtually always 

be required to become PACs, while large business 

corporations will almost never be required to do so. 

Cf. Citizens United, 130 S. Ct. at 905 (“The rule that 

political speech cannot be limited based on a speaker’s wealth is a necessary consequence of the premise 

that the First Amendment generally prohibits the 

suppression of political speech based on the speaker’s 

identity”); id. at 907-08 (noting that prohibition on 

corporate speech fell hardest on small corporations). 

 Third, the major purpose test requires precisely 

the sort of “intricate case-by-case determinations” 

that the Court refused to allow in Citizens United. Id. 

at 892. As the FEC has admitted, “[a]pplying the 

major purpose doctrine . . . requires the flexibility of a 

case-by-case analysis of an organization’s conduct 

that is incompatible with a one-size-fits-all rule.” 72 

Fed. Reg. at 5601. To determine a group’s major 
38 

purpose, the FEC conducts a “fact-intensive analysis 

of a group’s campaign activities compared to its 

activities unrelated to campaigns.” Id. This analysis 

looks to “public statements” and other conduct going 

“well beyond publicly available advertisements.” Id. 

It examines “the form and nature” of a group’s statements as well as “the speaker’s position within the 

organization” and how the group “characterize[s] its 

activities and purposes.” Id. It may focus on federal or 

nonfederal spending, “fundraising appeals,” “fundraising solicitations,” the “sources of [a group’s] 

contributions,” and the full range of its activities. Id.

at 5604-05. 

 The FEC has refused to issue rules governing the 

major purpose inquiry because of “the flexibility 

needed to apply the major purpose doctrine appropriately.” Id. at 5602. Even a “list of factors” to be 

considered would be inappropriate, according to the 

FEC, because it would not be “exhaustive” enough “as 

evidenced by the multitude of fact patterns at issue in 

the Commission’s enforcement matters.” Id. at 5602. 

If an organization wants guidance on how to apply 

the major purpose test, according to the FEC, it can 

“look to the public files for the Political Committee 

Status Matters and other closed enforcement matters, as well as advisory opinions and filings in civil 

enforcement cases.” Id. at 5604. 

 This epitomizes the process that this Court 

decried in Citizens United when it stated that the 

“the FEC has created a regime that allows it to select 

what political speech is safe for public consumption 
39 

by applying ambiguous tests.” 130 S. Ct. at 896; see 

also WRTL II, 551 U.S. at 469-77. If parties wish to 

avoid litigation or fines under this process “they 

must either refrain from speaking or ask the FEC to 

issue an advisory opinion approving of the political 

speech in question” which invites officials to scrutinize their speech-related activities. Citizens 

United, 130 S. Ct. at 896. “This is an unprecedented 

government intervention into the realm of speech.” 

Id.; see also id. at 889 (“The First Amendment does 

not permit laws that force speakers to retain a campaign finance attorney, conduct demographic marketing research, or seek declaratory rulings before 

discussing the most salient political issues of our 

day”). In Citizens United, this Court recognized that 

“onerous restrictions [can] function as the equivalent 

of prior restraint by giving the FEC power analogous 

to licensing laws.” Id. at 895-96. The major purpose 

inquiry gives the FEC – whose “business is to censor,” 

id. at 896 – precisely this sort of power. 

 Granting certiorari in this case would give this 

Court the opportunity to clarify that groups, like 

SpeechNow.org, do not have to endure this burdensome process in order to speak. 

--------------------------------- ♦ ---------------------------------
40 

CONCLUSION 

 For the reasons stated above, the Court should 

grant certiorari. 

Respectfully submitted, 

INSTITUTE FOR JUSTICE

WILLIAM H. MELLOR

STEVEN M. SIMPSON* 

ROBERT W. GALL

ROBERT P. FROMMER

PAUL M. SHERMAN

901 N. Glebe Road, Suite 900 

Arlington, VA 22203 

(703) 682-9320 

CENTER FOR COMPETITIVE POLITICS

BRADLEY A. SMITH

STEPHEN M. HOERSTING

124 W. Street South, Suite 201 

Alexandria, VA 22314 

(703) 894-6800 

Counsel for Petitioners 

*Counsel of Record