UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF NORTH CAROLINA 

NORTHERN DIVISION 

HOLLY LYNN KOERBER and 

COMMITTEE FOR TRUTH IN 

POLITICS, INC., 

 Plaintiffs, 

 v. 

FEDERAL ELECTION COMMISSION, 

 Defendant. 

) 

) 

) 

) 

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

) 

) 

) ANSWER 

) 

) 

) 

) 

DEFENDANT FEDERAL ELECTION COMMISSION’S ANSWER 

TO PLAINTIFFS’ VERIFIED COMPLAINT 

FOR DECLARATORY AND INJUNCTIVE RELIEF 

 Defendant Federal Election Commission (FEC or Commission) submits this answer to 

plaintiffs Holly Lynn Koerber and Committee for Truth in Politics, Inc.’s (CTP) Verified 

Complaint for Declaratory and Injunctive Relief. Any allegation not specifically responded to 

below is DENIED. 

1. This paragraph contains plaintiffs’ characterizations of a judicial decision and 

conclusions of law, to which no response is necessary. 

2. This paragraph contains plaintiffs’ characterizations of judicial decisions and 

conclusions of law, to which no response is necessary. 

3. This paragraph contains plaintiffs’ characterizations of judicial decisions and 

conclusions of law, to which no response is necessary. 

4. This paragraph contains plaintiffs’ characterizations of judicial decisions and 

conclusions of law, to which no response is necessary. 

Case 2:08-cv-00039-H Document 39 Filed 12/05/2008 Page 1 of 9
5. This paragraph contains plaintiffs’ characterizations of judicial decisions and 

conclusions of law, to which no response is necessary. 

6. ADMIT that CTP is a nonprofit North Carolina corporation. The Commission is 

without knowledge or information sufficient to admit or deny the remaining 

allegations in the first sentence of this paragraph. The second and third sentences 

quote a judicial decision, which speaks for itself. 

7. The Commission is without knowledge or information sufficient to admit or deny the 

allegations in this paragraph. 

8. The Commission is without knowledge or information sufficient to admit or deny 

whether the advertisements were broadcast in the electioneering communications 

period. ADMIT that if the advertisements described in paragraphs 32 and 33 of the 

complaint were broadcast and could be received by 50,000 or more people during the 

electioneering communication period, the ads meet the definition of an electioneering 

communication. 

9. This paragraph contains conclusions of law, to which no response is necessary. 

10. The Commission is without knowledge or information sufficient to admit or deny the 

factual allegations in this paragraph. To the extent this paragraph contains 

conclusions of law, no response is necessary. 

11. DENY. 

12. This paragraph contains plaintiffs’ characterizations of legal claims in the complaint 

and provisions of the Federal Election Campaign Act, 2 U.S.C. §§ 431-55 (FECA), 

which speak for themselves. 

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13. This paragraph contains plaintiffs’ characterizations of legal claims in the complaint 

and judicial decisions, which speak for themselves. DENY that the FECA disclosure 

requirements are unconstitutionally overbroad. 

14. This paragraph contains plaintiffs’ characterizations of the legal claims in the 

complaint, an FEC policy, and judicial decisions, which speak for themselves. 

DENY that the Commission’s policy regarding political committee status employs “a 

vague and overbroad totality-of-the-circumstances test for determining major 

purpose.” 

15. This paragraph contains plaintiffs’ characterizations of the legal claims in the 

complaint, which speaks for itself. DENY that the FEC’s political committee status 

policy is unconstitutional or beyond the Commission’s authority. 

16. This paragraph contains plaintiffs’ characterizations of the legal claims in the 

complaint, which speaks for itself. 

17. This paragraph contains plaintiffs’ characterizations of the legal claims in the 

complaint, which speaks for itself. 

18. DENY that the Commission’s political committee enforcement policy is reviewable 

under the Administrative Procedure Act, as the policy is not final agency action. 

19. ADMIT that venue is proper in this Court. 

20. The Commission is without knowledge or information sufficient to admit or deny the 

allegations in this paragraph. 

21. ADMIT that CTP is a nonprofit North Carolina corporation. The Commission is 

without knowledge or information sufficient to admit or deny the allegations in this 

paragraph. 

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22. ADMIT that the Commission is the federal government agency with civil 

enforcement authority over the FECA and that it is located in Washington, DC. 

ADMIT that the Commission explained the enforcement policy at issue in this case, 

but because of this paragraph’s vague use of the term “adopted,” the Commission is 

unable to admit or deny that part of the paragraph. 

23. The Commission is without knowledge or information sufficient to admit or deny the 

factual allegations in this paragraph. DENY that CTP “will be silenced” in violation 

of the First Amendment, that Koerber reasonably fears such silence, and that 

Koerber’s First Amendment rights are being violated. 

24. ADMIT. 

25. ADMIT that CTP is a nonprofit North Carolina corporation. The Commission is 

without knowledge or information sufficient to admit or deny the remaining 

allegations in this paragraph. 

26. The Commission is without knowledge or information sufficient to admit or deny the 

allegations in this paragraph. 

27. The Commission is without knowledge or information sufficient to admit or deny the 

allegations in this paragraph. 

28. The Commission is without knowledge or information sufficient to admit or deny the 

allegations in this paragraph. To the extent the paragraph contains legal conclusions, 

no response is required. 

29. This paragraph recites excerpts from CTP’s Articles of Incorporation, which speak 

for themselves. 

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30. This paragraph recites excerpts from CTP’s Articles of Incorporation, which speak 

for themselves. 

31. The Commission is without knowledge or information sufficient to admit or deny the 

allegations in this paragraph. 

32. The Commission is without knowledge or information sufficient to admit or deny the 

allegations in this paragraph. 

33. The Commission is without knowledge or information sufficient to admit or deny the 

allegations in this paragraph. 

34. The Commission is without knowledge or information sufficient to admit or deny the 

allegations in this paragraph. 

35. ADMIT that if the advertisements described in paragraphs 32 and 33 of the complaint 

were broadcast and could be received by 50,000 or more people during the 

electioneering communication period, the ads meet the definition of an electioneering 

communication. 

36. ADMIT that electioneering communications are subject to the disclaimer 

requirements of 2 U.S.C. § 441d(a). This paragraph contains conclusions of law and 

plaintiffs’ characterizations of the complaint, to which no response is necessary. 

37. ADMIT that if CTP has spent more than $10,000 for electioneering communications 

in 2008, it is subject to reporting requirements set out at 2 U.S.C. § 434(f)(1). The 

Commission is without knowledge or information sufficient to admit or deny the 

remaining allegations in this paragraph. 

38. ADMIT that if CTP had reached the $10,000 trigger amount on October 2, 2008, the 

report would have been due on October 3, 2008. The Commission is without 

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knowledge or information sufficient to admit or deny the remaining allegations in this 

paragraph. 

39. ADMIT that if CTP had reached the $10,000 trigger amount on October 2, 2008, the 

report would have been due on October 3, 2008. The Commission is without 

knowledge or information sufficient to admit or deny the remaining allegations in this 

paragraph. 

40. ADMIT. 

41. DENY that any FEC enforcement activity would violate CTP’s constitutional rights. 

42. DENY that the Commission’s PAC enforcement policy is vague or overbroad. To the 

extent the paragraph contains conclusions of law, no response is necessary. 

43. DENY that any FEC enforcement activity would violate CTP’s constitutional rights. 

To the extent the paragraph contains conclusions of law, no response is necessary. 

44. The Commission is without knowledge or information sufficient to admit or deny the 

allegations in this paragraph. To the extent the paragraph contains conclusions of 

law, no response is necessary. 

45. The Commission is without knowledge or information sufficient to admit or deny the 

allegations in this paragraph. To the extent the paragraph contains conclusions of 

law, no response is necessary 

46. DENY that any risk of an investigation, enforcement action, or penalties constitutes 

“irreparable harm.” DENY that CTP has no adequate remedy at law. 

47. The Commission incorporates by reference all responses contained in the preceding 

paragraphs. 

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48. The first sentence of this paragraph characterizes the relief plaintiffs’ seek in this 

case, which speaks for itself. The second sentence and the related footnote contain 

plaintiffs’ characterizations of ongoing litigation in another district court in this 

Circuit, which speaks for itself. The Commission DENIES that it stated that the 

Change ad was “protected issue advocacy.” The third sentence characterizes 

plaintiffs’ legal argument, to which no response is necessary. 

49. The Commission incorporates by reference all responses contained in the preceding 

paragraphs. 

50. DENY. 

51. DENY. 

52. The Commission incorporates by reference all responses contained in the preceding 

paragraphs. 

53. This paragraph contains plaintiffs’ characterizations of Commission statements as to 

the enforcement of FECA, which speak for themselves. DENY that the 

Commission’s enforcement policy as to political committee status is vague or 

overbroad. 

54. This paragraph contains plaintiffs’ characterizations of judicial decisions and 

Commission statements as to the enforcement of FECA, which all speak for 

themselves. DENY that there is “no authority” for the Commission’s enforcement 

policy as to political committee status and the “major purpose” test. 

55. This paragraph contains plaintiffs’ characterizations of Commission statements as to 

the enforcement of FECA, which speak for themselves. DENY that any organization 

“was subjected to a burdensome, intrusive investigation.” 

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56. DENY. 

57. This paragraph describes judicial decisions and contains conclusions of law, to which 

no response is necessary. DENY that the Commission’s enforcement policy is 

unconstitutional or otherwise impermissible. 

58. DENY. 

PRAYER FOR RELIEF

 No response is required, but the relief requested by plaintiffs should be denied. 

AFFIRMATIVE DEFENSES

1. Plaintiffs’ claims are not justiciable. 

2. Plaintiffs fail to state a claim. 

Respectfully submitted, 

 /s/ 

Thomasenia P. Duncan, General Counsel, tduncan@fec.gov 

David Kolker, Associate General Counsel, dkolker@fec.gov 

Harry J. Summers, Assistant General Counsel, hsummers@fec.gov 

Claire N. Rajan, Attorney, crajan@fec.gov 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street NW 

Washington, DC 20463 

Telephone: (202) 694-1650 

Fax: (202) 219-0260 

December 5, 2008 

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9

CERTIFICATE OF SERVICE 

This is to certify that a copy of the foregoing has been served upon counsel of record, Paul Stam, 

Jr., by electronically filing the same with the Court this date, using the CM/ECF system. 

December 5, 2008 Claire N. Rajan /s/_________ 

Claire N. Rajan 

Attorney 

Federal Election Commission 

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