No. 11-1760 

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

THE REAL TRUTH ABOUT OBAMA, INC., Plaintiff-Appellant, 

v. 

FEDERAL ELECTION COMMISSION, et al., Defendants-Appellees. 

On Appeal from the United States District Court 

for the Eastern District of Virginia 

BRIEF OF APPELLEES FEDERAL ELECTION COMMISSION 

AND UNITED STATES DEPARTMENT OF JUSTICE 

ANTHONY HERMAN 

General Counsel 

DAVID KOLKER 

Associate General Counsel 

HARRY J. SUMMERS 

Assistant General Counsel 

ADAV NOTI 

Attorney 

Federal Election Commission

999 E Street NW 

Washington, DC 20463 

TONY WEST 

Assistant Attorney General 

NEIL H. MACBRIDE 

United States Attorney 

MICHAEL S. RAAB 

DANIEL TENNY 

Attorneys, Appellate Staff 

Civil Division, Room 7215 

U.S. Department of Justice 

950 Pennsylvania Avenue NW

Washington, DC 20530-0001 

(202)514-1838 

(202)694-1650 

October 20, 2011 

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TABLE OF CONTENTS 

 

JURISDICTIONAL STATEMENT ....................................................... 1 

ISSUES PRESENTED .......................................................................... 1 

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

STATEMENT OF FACTS ..................................................................... 3 

I. STATUTORY AND REGULATORY BACKGROUND ............... 3 

 A. Express Advocacy and Electioneering Communications .. 3 

B. Political Committee Status ................................................. 8 

II. FACTUAL BACKGROUND AND PROCEDURAL 

HISTORY .................................................................................... 12 

SUMMARY OF THE ARGUMENT .................................................... 19 

ARGUMENT ........................................................................................ 21 

I. STANDARD OF REVIEW ......................................................... 21 

 A. Summary Judgment ......................................................... 21 

 B. Exacting Scrutiny Applies Here Because the 

Challenged Restrictions Impose No Direct Restraint 

on Speech ........................................................................... 22 

II. THE COMMISSION’S REGULATORY DEFINITION OF 

 “EXPRESSLY ADVOCATING” IS CONSTITUTIONAL ......... 25 

A. The Supreme Court Has Made Clear That Congress 

May Require Disclosure of a Broad Range of 

Expenditures That Goes Well Beyond “Magic Words” .... 28 

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1. “Express Advocacy” Is a Statutory Interpretation, 

Not a Constitutional Requirement .......................... 28 

2. Although Citizens United Struck Down Limits on 

Corporations’ Independent Campaign Advocacy, 

It Upheld Disclosure Requirements for a Broad 

Range of Communications That Lack Magic 

Words ........................................................................ 32 

3. RTAO’s Reliance on Other Legal Authorities 

Fails .......................................................................... 38 

4. Section 100.22(b) Is Within the Commission’s 

Authority and Consistent with Congressional 

Intent ........................................................................ 43 

B. Section 100.22(b), Which Closely Tracks a Standard 

the Supreme Court Has Established and Used, Is 

Not Unconstitutionally Vague .......................................... 44 

III. THE COMMISSION’S FEDERAL REGISTER NOTICE 

ABOUT HOW IT DETERMINES PAC STATUS IS NOT 

FINAL AGENCY ACTION SUBJECT TO JUDICIAL 

REVIEW ..................................................................................... 53 

IV. THE COMMISSION’S METHOD OF APPLYING THE 

MAJOR PURPOSE TEST IS CONSTITUTIONAL AND 

CONSISTENT WITH EVERY JUDICIAL DECISION ON 

THAT SUBJECT ........................................................................ 54 

CONCLUSION .................................................................................... 65 

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TABLE OF AUTHORITIES 

 

Cases

 

ACLU of Nevada v. Heller, 378 F.3d 979 (9th Cir. 2004) .................. 40 

Agostini v. Felton, 521 U.S. 203 (1997) ............................................. 46 

Akins v. FEC, 101 F.3d 731 (D.C. Cir. 1996) (en banc), vacated on 

other grounds, 524 U.S. 11 (1998) ............................................. 59

Bennett v. Spear, 520 U.S. 154 (1997) ................................................ 53 

Broward Coal. Of Condos., Homeowners Ass’ns & Cmty. Orgs., 

Inc. v. Browning, Civ. No. 4:08-445, 2009 WL 1457972 

(N.D. Fla. May 22, 2009) ........................................................... 40

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

Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 

467 U.S. 837 (1984) .................................................................... 43 

Citizens Against Rent Control v. Berkeley, 454 U.S. 290 (1981) ...... 40 

Citizens United v. FEC, 530 F. Supp. 2d 274 

(D.D.C. 2008) .................................................................. 23, 24, 36 

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

Colo. Right to Life Comm., Inc. v. Coffman, 498 F.3d 1137 

(10th Cir. 2007) ..................................................................... 60, 61 

CFTC v. Bd. of Trade, 701 F.2d 653 (7th Cir. 1983) .......................... 12 

Ctr. for Individual Freedom v. Carmouche, 449 F.3d 655 

(5th Cir. 2006) ............................................................................. 40 

Ctr. for Individual Freedom, Inc. v. Tennant, __ F. Supp. 2d __,

2011 WL 2912735 (S.D.W.V. 2011), appeals filed, 

Nos. 11-1952, 11-1993 (4th Cir.) ................................................ 46 

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Davis v. FEC, 554 U.S. 724 (2008)...................................................... 23 

Doe v. Reed, 130 S. Ct. 2811 (2010) .................................................... 37 

EEOC v. Cent. Wholesalers, Inc., 573 F.3d 167 (4th Cir. 2009) ....... 21 

EMILY’s List v. FEC, 581 F.3d 1 (D.C. Cir. 2009) ............................. 16 

FEC v. Christian Action Network, Inc., 110 F.3d 1049 

(4th Cir. 1997) ....................................................................... 28, 30 

FEC v. Furgatch, 807 F.2d 857 (9th Cir. 1987) ...................... 30, 31, 40 

FEC v. GOPAC, Inc., 917 F. Supp. 851 (D.D.C. 1996) ....................... 57 

FEC v. Malenick, 310 F. Supp. 2d 230 (D.D.C. 2004) ........................ 57 

FEC v. Mass. Citizens for Life, Inc., 479 U.S. 238 

 (1986) ....................................................................... 23, 37, 60, 61 

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

Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., Ltd., 

234 F.3d 558 (Fed. Cir. 2000) .................................................... 16 

First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765 (1978) ......... 38, 40 

Florida v. Jimeno, 500 U.S. 248 (1991) .............................................. 45 

Flue-Cured Tobacco Coop. Stabilization Corp. v. EPA, 313 F.3d 

852 (4th Cir. 2002) ...................................................................... 53 

FTC v. Std. Oil Co. of Cal., 449 U.S. 232 (1980) ................................ 64 

Grayned v. City of Rockford, 408 U.S. 104 (1972) ............................. 26 

Hawksbill Sea Turtle v. FEMA, 126 F.3d 461 (3d Cir. 1997)............ 12 

Hughes Aircraft Co. v. United States, 140 F.3d 1470 

(Fed. Cir. 1998) ........................................................................... 16 

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Human Life of Wash., Inc. v. Brumsickle, 624 F.3d 990 

(9th Cir. 2010), cert. denied, 131 S. Ct. 1477 (2011) ................. 39 

Invention Submission Corp. v. Rogan, 357 F.3d 452 

(4th Cir. 2004) ............................................................................. 54 

Koerber v. FEC, 583 F. Supp. 2d 740 (E.D.N.C. 2008) ...................... 55 

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

Nat’l Organization for Marriage v. McKee, 649 F.3d 34 

(1st Cir. 2011) ........................................................... 22, 25, 38, 46 

Nat’l Right to Work Legal Defense & Educ. Found., Inc. v. 

Herbert, 581 F. Supp. 2d 1132 (D. Utah 2008) ......................... 40 

New Mexico v. Herrera, 611 F.3d 669 (10th Cir. 2010) ................ 40, 61 

NLRB v. Bell Aerospace Co., 416 U.S. 267 (1974) ............................. 58 

North Carolina Right to Life, Inc. v. Leake, 525 F.3d 274 

(4th Cir. 2008) ................................................................. 41, 42, 63 

Okoli v. City of Baltimore, 648 F.3d 216 (4th Cir. 2011) ................... 22 

Perot v. FEC, 97 F.3d 553 (D.C. Cir. 1996) ........................................ 63 

Real Truth About Obama, Inc. v. FEC, No. 08-483, 2008 WL 

4416282 (E.D. Va. Sept. 24, 2008) ................................... 2, 14, 15

Real Truth About Obama, Inc. v. FEC, 

575 F.3d 342 (4th Cir. 2009) ..................................... 2, 12, 15, 61 

Real Truth About Obama, Inc. v. FEC, 130 S. Ct. 2371 (2010)..... 3, 16 

Real Truth About Obama, Inc. v. FEC, 607 F.3d 355 

(4th Cir. 2010) ................................................................... 3, 12, 17 

Republican Nat’l Comm. v. FEC, 698 F. Supp. 2d 150 (D.D.C.) 

(three-judge court), aff’d mem., 130 S. Ct. 3544 (2010) ............ 24 

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SEC v. Chenery Corp., 332 U.S. 194 (1947) ....................................... 58 

Shays v. FEC, 511 F. Supp. 2d 19 (D.D.C. 2007) ................... 58, 59, 62 

SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir.) (en banc),

cert. denied, 131 S. Ct. 553 (2010) ..................... 11, 23, 24, 56, 64 

Tyler v. Cain, 533 U.S. 656 (2001) ...................................................... 16 

United States v. Harriss, 347 U.S. 612 (1954) ................................... 37 

United States v. Stevens, 130 S. Ct. 1577 (2010) ............................... 26 

United States v. Wurzbach, 280 U.S. 396 (1930) ............................... 51 

Virginia v. Hicks, 539 U.S. 113 (2003) ............................................... 26 

Virginia Society for Human Life, Inc. v. FEC, 

263 F.3d 379 (4th Cir. 2001) .......................................... 30, 44, 45 

Wyatt v. Cole, 504 U.S. 158 (1992) ..................................................... 45 

Statutes and Regulations 

Bipartisan Campaign Reform Act of 2002 (“BCRA”), 

Pub. L. No. 107-115 (2002) ........................................................... 5 

 BCRA § 201(a), 116 Stat. 89 ...................................................... 43 

 BCRA § 212(a), 116 Stat. 81 ........................................................ 5 

Federal Election Campaign Act, 2 U.S.C. §§ 431-57 ........................... 3 

Federal Election Campaign Act Amendments of 1976, Pub. L. 

No. 94-283, § 102(g)(3), 90 Stat. 475, 479 (1976) .................. 4, 29 

2 U.S.C. § 431(4)(A) ......................................................................... 8, 55 

2 U.S.C. § 431(4)(B) ............................................................................. 62 

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

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2 U.S.C. § 431(9)(A)(i) ............................................................................ 3 

2 U.S.C. § 431(17) ............................................................................ 4, 43 

2 U.S.C. § 433 .................................................................................... 8, 9 

2 U.S.C. § 434 .................................................................................... 8, 9 

2 U.S.C. § 434(c)..................................................................................... 5 

2 U.S.C. § 434(f)(1)-(2) ..................................................................... 6, 29 

2 U.S.C. § 434(f)(3)(A)(i) .................................................................. 6, 28 

2 U.S.C. § 434(f)(3)(A)(ii) ..................................................................... 43 

2 U.S.C. § 434(f)(3)(A)(i)(III) ................................................................. 6 

2 U.S.C. § 437c(b)(1) ............................................................................ 12 

2 U.S.C. § 437d(a)(7) ............................................................................ 12 

2 U.S.C. § 437d(a)(8) ........................................................................ 4, 12 

2 U.S.C. § 437f ..................................................................................... 12 

2 U.S.C. § 437g ..................................................................................... 12 

2 U.S.C. § 437g(a)(2) ............................................................................ 64 

2 U.S.C. § 437g(d) ................................................................................ 12 

2 U.S.C. § 441a(a)(1)(C) ................................................................... 9, 23

2 U.S.C. § 441b ................................................................................ 8, 28 

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

2 U.S.C. § 441b(b)(2) ........................................................................ 6, 28 

5 U.S.C. § 704 ...................................................................................... 53 

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26 U.S.C. § 527..................................................................................... 10 

26 U.S.C. § 527(e) ............................................................................... 10 

26 U.S.C. § 527(e)(2) ............................................................................ 10 

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

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

11 C.F.R. § 100.22 .............................................................................. 4, 8 

11 C.F.R. § 100.22(a) ............................................................................. 4 

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

11 C.F.R. § 100.22(b)(1) ................................................................. 27, 47 

11 C.F.R. § 100.57 .................................................................... 14, 16, 17 

11 C.F.R. § 109.10(e) .............................................................................. 5 

11 C.F.R. § 114.15 .................................................... 7, 14, 16, 17, 46, 47 

Administrative Materials 

Express Advocacy; Independent Expenditures; Corporate and 

Labor Organization Expenditures, 60 Fed. Reg. 35,292 

(July 6, 1995) ........................................................................ 27, 31 

FEC Matter Under Review 4867, Tribal Alliance for Sovereignty, 

Factual and Legal Analysis (Dec. 11, 1998) (available at 

http://eqs.nictusa.com/eqsdocsMUR/0000428F.pdf) ................. 63 

Political Committee Status, 69 Fed. Reg. 11,736 

(Mar. 11, 2004) ....................................................................... 9, 10 

Political Committee Status, 72 Fed. Reg. 5595 (Feb. 7, 2007) ... passim

 

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Press Release, FEC Statement on the Supreme Court’s 

Decision in Citizens United v. FEC, 

http://www.fec.gov/press/press2010/ 

20100205CitizensUnited.shtml (Feb. 5, 2010) ............................ 7 

Miscellaneous 

Fed. R. Civ. P. 56(c) .................................................................................. 21 

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JURISDICTIONAL STATEMENT 

The district court had jurisdiction over this action pursuant to 

28 U.S.C. § 1331 and entered its final decision granting summary 

judgment to the Federal Election Commission (“Commission” or “FEC”) 

and the Department of Justice on June 16, 2011. (J.A. 56-81.) A notice 

of appeal and an amended notice of appeal (J.A. 82) were filed on July 

15, 2011. This Court has jurisdiction over the appeal pursuant to 28 

U.S.C. § 1291. 

ISSUES PRESENTED 

1. Whether the Federal Election Commission’s regulatory 

definition of the statutory term “expressly advocating” is constitutional. 

2. Whether a statement that the Federal Election Commission 

published in the Federal Register to provide guidance regarding how 

the Commission determines if an entity is a “political committee” 

constitutes final agency action subject to judicial review. 

3. Whether the Federal Election Commission’s method of 

determining if an entity is a “political committee” is constitutional. 

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STATEMENT OF THE CASE 

This appeal presents facial and as-applied constitutional 

challenges to (1) a Federal Election Commission regulation defining the 

communications that must be disclosed as “independent expenditures,” 

and (2) a notice that the Commission published in the Federal Register 

in 2007 regarding the Commission’s approach to determining whether 

entities are “political committees” for purposes of federal campaignfinance law. 

During the 2008 presidential campaign, The Real Truth About 

Obama, Inc. (“RTAO”) filed a complaint and two motions seeking to 

preliminarily enjoin the Commission and the Department of Justice 

from enforcing three allegedly unconstitutional Commission regulations 

and the approach described in the Commission’s Federal Register 

notice. The district court denied RTAO’s preliminary injunction 

motions. 2008 WL 4416282, at *9-*15 (E.D. Va. Sept. 24, 2008). This 

Court affirmed. 575 F.3d 342, 346-47 (4th Cir. 2009). RTAO petitioned 

the Supreme Court for a writ of certiorari, and the government noted in 

response that two of RTAO’s claims had been rendered moot by, inter 

alia, Citizens United v. FEC, 130 S. Ct. 876 (2010). The Supreme Court 

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then remanded “for further consideration in light of Citizens United v. 

FEC . . . and the [government’s] suggestion of mootness.” RTAO v. 

FEC, 130 S. Ct. 2371 (2010). 

On June 8, 2010, this Court re-issued the portions of its original 

opinion regarding the facts and the preliminary injunction standard, 

and the Court remanded the case to the district court. 607 F.3d 355 

(4th Cir. 2010). On remand, RTAO withdrew its preliminary injunction 

motions (J.A. 55) and its two moot claims (see J.A. 60 n.3). The district 

court then granted summary judgment to the Commission and the 

Department of Justice on RTAO’s remaining regulatory challenge and 

its challenge to the Federal Register notice. (J.A. 66-80.) 

STATEMENT OF FACTS 

I. STATUTORY AND REGULATORY BACKGROUND 

A. Express Advocacy and Electioneering Communications 

The Federal Election Campaign Act (“FECA”), 2 U.S.C. §§ 431-57, 

as enacted, prohibited corporations and labor unions from making 

“expenditures,” 2 U.S.C. § 441b(a). FECA defines an “expenditure” to 

include any payment of money made “for the purpose of influencing any 

election for Federal office.” 2 U.S.C. § 431(9)(A)(i). In Buckley v. Valeo, 

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however, the Supreme Court held that this definition was 

unconstitutionally vague in the context of independent spending and so 

construed it “to apply only to expenditures for communications that in 

express terms advocate the election or defeat of a clearly identified 

candidate for federal office.” 424 U.S. 1, 44 (1976). Congress then 

amended FECA to incorporate the Court’s construction by defining an 

“independent expenditure” as a communication “expressly advocating 

the election or defeat of a clearly identified candidate” and not made by 

or in coordination with a candidate or political party. See Federal 

Election Campaign Act Amendments of 1976, Pub. L. No. 94-283, 

§ 102(g)(3), 90 Stat. 475, 479 (1976) (codified at 2 U.S.C. § 431(17)). 

 Exercising its authority to “to make . . . such rules . . . as are 

necessary to carry out the provisions of [the] Act,” 2 U.S.C. § 437d(a)(8), 

the Commission promulgated a regulation defining the statutory term 

“expressly advocating,” 11 C.F.R. § 100.22. The regulation established 

a two-part definition. Part (a) of the regulation includes 

communications that use phrases — such as “vote for” or “reject” — 

“which in context can have no other reasonable meaning than to urge 

the election or defeat” of a candidate. 11 C.F.R. § 100.22(a). This is 

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sometimes referred to as “magic words” express advocacy. See

McConnell v. FEC, 540 U.S. 93, 126 (2003) (citing Buckley, 424 U.S. at 

44 n.52). Part (b) defines express advocacy as a communication that 

has an unambiguous “electoral portion” as to which “[r]easonable minds 

could not differ [that] it encourages actions to elect or defeat one or 

more clearly identified candidate(s).” 11 C.F.R. § 100.22(b). An entity 

that finances an independent expenditure of more than $250 must file 

with the Commission a disclosure report that identifies, inter alia, the 

date and amount of the expenditure and anyone who contributed over 

$200 to further it. See 2 U.S.C. § 434(c); 11 C.F.R. § 109.10(e). 

In 2002, Congress passed the Bipartisan Campaign Reform Act 

(“BCRA”), which introduced new financing and disclosure requirements 

for “electioneering communications.” Pub. L. No. 107-155, § 212(a), 116 

Stat. 81 (2002). The statute prohibited corporations and unions from 

making any “direct or indirect payment . . . for any applicable 

electioneering communication,” which is defined in the context of a 

presidential election as a “broadcast, cable, or satellite communication” 

that (a) refers to a clearly identified presidential candidate, and (b) is 

made within sixty days before the general election or thirty days before 

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a primary election or convention. 2 U.S.C. §§ 441b(b)(2), 434(f)(3)(A)(i).1 

BCRA also mandated disclosure for electioneering communications, 

including a requirement that every person who makes electioneering 

communications aggregating in excess of $10,000 during a calendar 

year must file within 24 hours a statement that identifies the maker, 

amount, and recipient of each disbursement over $200, as well as 

information about donors who contributed to the person making the 

disbursement. 2 U.S.C. § 434(f)(1)-(2). 

The Supreme Court initially upheld the constitutionality of the 

financing restriction for electioneering communications “to the extent 

that the issue ads . . . are the functional equivalent of express 

advocacy.” McConnell, 540 U.S. at 189-94, 203-08 (quotation at 206). 

Later, in FEC v. Wisconsin Right to Life, Inc. (“WRTL”), the Chief 

Justice’s controlling opinion defined “the functional equivalent of 

express advocacy” as a communication that is “susceptible of no 

reasonable interpretation other than as an appeal to vote for or against 

 

1 In the context of campaigns for the United States Senate and 

House of Representatives, the communication must also be broadcast 

within the geographic area of the given campaign to constitute an 

electioneering communication. See 2 U.S.C. § 434(f)(3)(A)(i)(III). 

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a specific candidate.” 551 U.S. 449, 469-70 (2007). In 2007, the 

Commission codified this standard in a regulation. 11 C.F.R. § 114.15. 

The Supreme Court subsequently held unconstitutional FECA’s 

restriction on corporate financing of independent expenditures, as well 

as BCRA’s electioneering communication financing restrictions. 

Citizens United, 130 S. Ct. at 913. The Commission has accordingly 

announced that it will no longer enforce these restrictions.2 

But in Citizens United eight Justices upheld BCRA’s disclosure 

requirements for electioneering communications, even if those 

communications are not the functional equivalent of express advocacy. 

130 S. Ct. at 914-15. The Court recognized that “[d]isclaimer and 

disclosure requirements may burden the ability to speak, but they 

‘impose no ceiling on campaign-related activities.’” Id. at 914 (quoting 

Buckley, 424 U.S. at 64). The Court thus declined to review such 

requirements through the lens of strict scrutiny and instead “subjected 

these requirements to ‘exacting scrutiny,’ which requires ‘a substantial 

relation’ between the disclosure requirement and a ‘sufficiently 

 

2 Press Release, FEC Statement on the Supreme Court’s Decision in 

Citizens United v. FEC, 

http://www.fec.gov/press/press2010/20100205CitizensUnited.shtml 

(Feb. 5, 2010). 

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important’ governmental interest.” Id. (quoting Buckley, 424 U.S. at 

64, 66). The Court also explained that disclosure is “less restrictive” 

than a limit on spending, and that the public has an interest in knowing 

who is responsible for pre-election communications that speak about 

candidates, “[e]ven if the ads only pertain to a commercial transaction.” 

Id. at 915-16.3 

B. Political Committee Status 

 Under FECA, any “committee, club, association, or other group of 

persons” that makes over $1,000 in expenditures or receives over $1,000 

in contributions in a calendar year is a “political committee.” 2 U.S.C. 

§ 431(4)(A). A “contribution” includes anything of value given “for the 

purpose of influencing any election for Federal office.” 2 U.S.C. 

§ 431(8)(A)(i). Political committees — commonly known as “PACs” — 

must register with the Commission and file periodic reports of their 

receipts and disbursements for disclosure to the public, with limited 

exceptions for most transactions below a $200 threshold. See 2 U.S.C. 

 

3 Because Citizens United found the ban on corporate and union 

independent expenditures in 2 U.S.C. § 441b to be unconstitutional, the 

Commission’s regulatory definition of express advocacy in 11 C.F.R. 

§ 100.22, which had helped to implement that ban, continues to trigger 

disclosure obligations but no longer operates as part of any limit on 

speech. See infra pp. 23-24. 

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§§ 433, 434. Under FECA as originally enacted, political committees 

were permitted to accept individual contributions up to $5,000 but could 

not accept corporate or union contributions. See 2 U.S.C. 

§ 441a(a)(1)(C). 

 In Buckley, however, the Supreme Court held that defining 

political committee status “only in terms of amount of annual 

‘contributions’ and ‘expenditures’” might result in overbroad application 

of FECA’s PAC provisions by reaching “groups engaged purely in issue 

discussion.” 424 U.S. at 79. The Court therefore concluded that the 

definition “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. Under the statute as thus limited, an 

organization that is not controlled by a candidate must register as a 

political committee only if (1) the entity crosses the $1,000 threshold of 

contributions or expenditures, and (2) its “major purpose” is the 

nomination or election of federal candidates. 

In 2004, the Commission issued a notice of proposed rulemaking, 

asking whether the agency should promulgate a regulatory definition of 

“political committee.” See Political Committee Status, 69 Fed. Reg. 

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11,736, 11,743-49 (Mar. 11, 2004). The notice specifically asked 

whether the Commission should promulgate a regulation providing that 

all “527” groups — i.e., “political organizations” organized under section 

527 of the Internal Revenue Code — meet the major purpose 

requirement because 527 groups, by definition, are operated “primarily 

for the purpose of . . . accepting contributions or making expenditures 

. . . to influence the selection, nomination, election, or appointment of 

any individual to any Federal, State, or local public office.” See id. at 

11,748-49 (quoting 26 U.S.C. § 527(e)(2)). 

In 2007, after receiving public comments and holding extensive 

hearings, the Commission published in the Federal Register a notice 

stating that the Commission had decided not to promulgate a new 

definition of “political committee” but instead to continue its 

longstanding practice of determining each organization’s major purpose 

on a case-by-case basis. Political Committee Status, 72 Fed. Reg. 5595, 

5596-97 (Feb. 7, 2007).4 The notice then discussed a number of 

administrative and civil matters in which the Commission or a court 

had analyzed a group’s major purpose; these descriptions cumulatively 

 

4 The complete administrative record, including public comments, is 

available at http://sers.nictusa.com/fosers/viewreg.htm?regno=2003-07. 

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“provid[ed] considerable guidance to all organizations” regarding the 

criteria that are used to apply the “major purpose” test. See id. at 5595, 

5605-5606. In addition, the notice explained that the Commission 

refers to its regulatory definition of “express advocacy” to help 

determine whether an organization has satisfied the statutory criteria 

for political committee status by making $1,000 in expenditures in a 

calendar year. See id. at 5604. 

Relying upon Citizens United, the D.C. Circuit recently held that 

a group that receives contributions only from individuals and whose 

campaign-related activity consists only of independent expenditures is 

not subject to the $5,000 limit on contributions received by political 

committees. SpeechNow.org v. FEC, 599 F.3d 686, 692-97 (D.C. Cir.) 

(en banc), cert. denied, 131 S. Ct. 553 (2010). Regarding disclosure and 

reporting, however, SpeechNow upheld the Act’s requirements for 

political committees. Id. at 696-98. The court noted that the reporting 

required of political committees does not “impose much of an additional 

burden” compared with the reporting requirements for persons making 

independent expenditures. Id. at 697. 

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II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY 

The Commission is the independent agency of the United States 

government with exclusive civil jurisdiction over the administration, 

interpretation, and enforcement of FECA. The Commission is 

empowered to “formulate policy” with respect to the Act, 2 U.S.C. 

§ 437c(b)(1); “to make, amend, and repeal such rules . . . as are 

necessary to carry out the provisions of [the] Act,” 2 U.S.C. § 437d(a)(8); 

to issue advisory opinions construing the Act, 2 U.S.C. §§ 437d(a)(7), 

437f; and to civilly enforce the Act, 2 U.S.C. § 437g. The Department of 

Justice prosecutes criminal violations of the Act. See 2 U.S.C. 

§ 437g(d).5 

RTAO is a nonprofit Virginia corporation. 575 F.3d at 345.6 

RTAO was incorporated on July 24, 2008, id., and requested section 527 

 

5 Because the regulation and enforcement approach at issue in this 

case were promulgated by the Commission, we refer exclusively to the 

Commission in the remainder of this brief. 

6 The facts found by this Court and set out in the first opinion in 

this case, 575 F.3d at 345, which were reissued on remand, 607 F.3d 

355, are binding. See CFTC v. Bd. of Trade, 701 F.2d 653, 657 (7th Cir. 

1983) (findings made in preliminary injunction decisions have 

preclusive effect “if the circumstances make it likely that the findings 

are accurate [and] reliable”); Hawksbill Sea Turtle v. FEMA, 126 F.3d 

461, 474 n.11 (3d Cir. 1997). 

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13

status from the Internal Revenue Service on July 29, 2008 (J.A. 16-17). 

In its IRS filing, RTAO stated that its purpose was “[t]o provide 

accurate and truthful information about the public policy positions of 

Senator Barack Obama,” and RTAO stated that it would not “expressly 

advocate the election or defeat” of any political candidate or “make any 

contribution” to a candidate. (J.A. 16; id. at 68 (citing RTAO’s articles 

of incorporation).) RTAO then filed this lawsuit the next day. (J.A. 5.) 

In its complaint and other civil filings, RTAO alleged that it had 

developed two radio advertisements, entitled “Change” and “Survivors.” 

(See J.A. 57-58.) In “Change,” a woman’s voice asks “what is the real 

truth about Democrat Barack Obama’s position on abortion?,” and an 

“Obama-like voice” responds in the first-person that then-Senator 

Obama wishes to provide federal funds for every abortion performed in 

the United States, legalize partial-birth abortion, and “give Planned 

Parenthood lots more money.” (Id. at 57.) Near the end of the ad, the 

woman’s voice asks: “Now you know the real truth about Obama’s 

position on abortion. Is this the change you can believe in?” (Id.)7 In 

“Survivors,” a narrator states that Senator Obama “has been lying” 

 

7 “Change you can believe in” was a slogan of the 2008 Obama 

presidential campaign. (See J.A. 57.) 

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about his voting history regarding abortion, thereby demonstrating 

“callousness” and “a lack of character and compassion that should give 

everyone pause.” (Id. at 57-58.) RTAO alleged that it intended to spend 

over $1,000 to broadcast these ads on the radio during the sixty-day 

period preceding the 2008 general election. (See id.) 

RTAO moved to enjoin the Commission from enforcing 11 C.F.R. 

§ 100.22(b) on its face and as applied to “Change” and “Survivors” — 

i.e., to prohibit the Commission from finding that either ad would 

constitute an independent expenditure. See 2008 WL 4416282, at 

*7-*8. RTAO also sought to enjoin the Commission from applying the 

case-by-case approach described in the 2007 Federal Register notice to 

determine whether RTAO would meet Buckley’s major purpose test for 

PAC status. Id. at *8. Finally, RTAO moved to enjoin enforcement of 

two additional Commission regulations: 11 C.F.R. § 100.57, which 

provided that donations made in response to certain solicitations 

constituted “contributions” under FECA; and 11 C.F.R. § 114.15, which 

implemented the WRTL decision by defining which electioneering 

communications were the “functional equivalent of express advocacy.” 

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The district court held that RTAO was unlikely to prevail on any 

of its constitutional claims and denied the motions for preliminary 

relief. Id. at *9-*15. RTAO appealed to this Court and moved both the 

district court and this Court to enjoin the Commission from enforcing 

the challenged regulations and policy during the pendency of the 

appeal. Both Courts denied the injunction motions. No. 08-1977 (4th 

Cir. Oct. 1, 2008); Civ. No. 08-483 (E.D. Va. Sept. 30, 2008). This Court 

then affirmed the district court’s denial of preliminary relief, holding 

that RTAO had not demonstrated a likelihood of success on the merits 

of its claims or met any of the other requirements for a preliminary 

injunction. 575 F.3d at 346-52. RTAO filed a petition for rehearing en 

banc, which this Court denied, with no Judge requesting a vote thereon. 

No. 08-1977 (4th Cir. Oct. 6, 2009). 

RTAO petitioned the Supreme Court for a writ of certiorari. The 

government’s response to the petition asked the Supreme Court to 

vacate aspects of this Court’s ruling that had been rendered moot by 

two other judicial opinions post-dating the ruling. See Brief for the 

Respondents at 10-11, 24-25, S. Ct. No. 09-724 (Mar. 2010), available at 

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

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Specifically, the government noted that Citizens United, 130 S. Ct. 876, 

had mooted RTAO’s challenge to 11 C.F.R. § 114.15 by determining that 

all corporate funding of independent campaign advocacy was 

permissible; and the Commission had announced that it would cease 

enforcement of 11 C.F.R. § 100.57 after the D.C. Circuit invalidated 

certain aspects of that regulation in EMILY’s List v. FEC, 581 F.3d 1 

(D.C. Cir. 2009). 

In April 2010, the Supreme Court granted certiorari, vacated this 

Court’s judgment, and remanded “for further consideration in light of 

[Citizens United] and the [government’s] suggestion of mootness.” 130 

S. Ct. 2371.8 On June 8, 2010, this Court re-issued the sections of its 

original opinion that had articulated the facts of this case and 

annunciated the Circuit’s standard for assessing preliminary injunction 

 

8 This kind of “GVR order” is not a determination on the merits, but 

indicates only that intervening case law “may affect the outcome of the 

litigation” and that the appellate court should be afforded the chance to 

fully consider the issue in light of new precedent. See Tyler v. Cain, 533 

U.S. 656, 666 n.6 (2001) (emphasis added); see also Hughes Aircraft Co. 

v. United States, 140 F.3d 1470, 1473 (Fed. Cir. 1998) (“The use of a 

GVR order . . . ‘flag[s] a particular issue that . . . does not appear to 

have [been] fully considered.’ Vacatur and remand by the Supreme 

Court . . . does not create an implication that the lower court should 

change its prior determination.”) (citations omitted), abrogated on other 

grounds by Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., Ltd., 

234 F.3d 558, 574 (Fed. Cir. 2000). 

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motions, and remanded the rest of the case to the district court for final 

determination. 607 F.3d 355. RTAO filed a petition for rehearing en 

banc, which this Court denied, with no Judge requesting a vote thereon. 

No. 08-1977 (4th Cir. Aug. 6, 2010). 

On remand, RTAO withdrew its preliminary injunction motions 

(J.A. 55),9 and the parties agreed that RTAO’s challenges to 11 C.F.R. 

§ 114.15 and 11 C.F.R. § 110.57 were moot in light of Citizens United

and EMILY’s List, respectively (see J.A. 60 n.3). The district court then 

granted summary judgment to the Commission on RTAO’s remaining 

claims. (J.A. 66-80.) 

 The district court held that the challenged provisions are 

constitutional on their face and as applied to RTAO. The court first 

noted that, after Citizens United, the only consequence of a 

communication being deemed express advocacy under section 100.22(b) 

is that the entity financing the communication must file a disclosure 

statement. (J.A. 67-68.) Similarly, the court noted that, after 

SpeechNow, the only consequence of being deemed a political committee 

for an entity such as RTAO (i.e., an entity that does not make 

 

9 The district court held in its final opinion that RTAO’s 

preliminary injunction motions were moot. (J.A. 62-65.) 

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contributions or coordinated expenditures) is that disclosure 

requirements are triggered. (J.A. 68.) Because the Commission’s 

regulation and its PAC methodology implement disclosure provisions 

but trigger no spending restrictions, the court held that they are both 

subject to intermediate scrutiny. (J.A. 67-68.) 

Applying that scrutiny to section 100.22(b), the district court 

found the regulation constitutional under WRTL, in which the Supreme 

Court had held that a communication “susceptible of no reasonable 

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

candidate” is “functional[ly] equivalent” to what Buckley termed 

“express advocacy.” (See J.A. at 69-75.) Because section 100.22(b) 

“mirrors” the Supreme Court’s WRTL standard — a standard the Court 

later applied in Citizens United — the district court held that the 

regulation is constitutional on its face, not vague or overbroad. (J.A. 

73-74.) And the court found that because both of RTAO’s ads would 

constitute the functional equivalent of express advocacy under WRTL, 

“if the FEC deemed [the ads] express advocacy under § 100.22(b), that 

application would not be unconstitutional.” (J.A. 74-75.) 

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 As to the Commission’s case-by-case methodology for making PAC 

status determinations, the district court noted that “ascertaining an 

organization’s single major purpose is an inherently comparative task” 

requiring analysis of a variety of the entity’s activities and not readily 

reducible to “one or two factors.” (See J.A. 76-77.) The court also noted 

that the approach reflected in the Commission’s Federal Register notice 

is consistent with the decisions of other courts that have considered how 

to determine political committee status. (Id. at 76.) The district court 

therefore held that the Commission’s decision to conduct its analysis on 

a case-by-case basis, rather than promulgating a categorical regulation, 

is a proper means of implementing FECA’s PAC disclosure provisions. 

(See id. at 76-77.) 

SUMMARY OF THE ARGUMENT 

RTAO’s constitutional challenges to the Commission’s regulatory 

definition of “expressly advocating” and its method of analyzing political 

committee status have even less merit now than they did when this 

Court found that RTAO’s claims were unlikely to succeed. Intervening 

judicial decisions, including Citizens United, have narrowed the reach 

of the challenged provisions such that they now mainly implement 

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disclosure requirements, not any restrictions on speech. From Buckley

through Citizens United and beyond, disclosure requirements have 

consistently been upheld under intermediate scrutiny because 

disclosure serves the important governmental interest of informing the 

public about the financing of candidate advocacy and other election 

activity. 

The Commission’s regulatory definition of express advocacy is 

strikingly similar to the Supreme Court’s definition of the “functional 

equivalent” of express advocacy — a definition that WRTL held was not 

vague, and that the Court expressly applied in Citizens United. WRTL, 

like McConnell before it and several decisions from the courts of appeals 

after it, rejected the contention that a communication must contain 

“magic words” of candidate advocacy to pass constitutional muster. 

Indeed, an eight-Justice majority in Citizens United upheld mandatory 

disclosure for pre-election communications that contain no 

unambiguous electoral advocacy. The Commission’s regulation is 

therefore a constitutionally permissible means of implementing the 

important disclosure requirements applicable to communications that 

expressly advocate the election or defeat of candidates for federal office. 

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The Commission’s 2007 Federal Register notice regarding political 

committee status did not create or modify any procedures, establish any 

entity’s rights, or contain any other determination that would constitute 

final agency action subject to judicial review. But even if the substance 

of that notice were properly before the Court, the Commission’s 

approach faithfully and accurately implements the Supreme Court’s 

“major purpose” test. Determining an organization’s major purpose is 

an inherently comparative endeavor, and the Commission’s Federal 

Register notice — along with subsequent additional information and 

analysis — provides substantial guidance regarding the Commission’s 

implementation of the “major purpose” standard. 

ARGUMENT 

I. STANDARD OF REVIEW 

 A. Summary Judgment 

Summary judgment is appropriate where “‘there is no genuine 

issue as to any material fact and . . . the movant is entitled to judgment 

as a matter of law.’” EEOC v. Cent. Wholesalers, Inc., 573 F.3d 167, 

174 (4th Cir. 2009) (quoting Fed. R. Civ. P. 56(c)). This Court reviews a 

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grant of summary judgment de novo. Okoli v. City of Baltimore, 648 

F.3d 216, 220 (4th Cir. 2011). 

B. Exacting Scrutiny Applies Here Because the Challenged 

Restrictions Impose No Direct Restraint on Speech 

 

In determining the level of constitutional scrutiny applicable to 

campaign finance regulations, the Supreme Court has long 

distinguished between disclosure provisions, which are subject to 

intermediate (sometimes referred to as “exacting”) scrutiny, and 

expenditure limits, which are subject to strict scrutiny. E.g., Buckley,

424 U.S. at 64. Although “disclosure requirements may burden the 

ability to speak,” they “impose no ceiling on campaign-related activities 

and do not prevent anyone from speaking.” Citizens United, 130 S. Ct. 

at 914 (internal quotation marks and citations omitted). Disclosure is 

therefore subject to “exacting scrutiny,” which, unlike strict scrutiny, 

requires only “a ‘substantial relation’ between the disclosure 

requirement and a ‘sufficiently important’ governmental interest.” Id.

(quoting Buckley, 424 U.S. at 64, 66); see also Nat’l Org. for Marriage v. 

McKee, 649 F.3d 34, 55-57 (1st Cir. 2011) (applying “substantial 

relation” standard and rejecting argument that strict scrutiny applies to 

disclosure and organizational requirements for PACs under Citizens 

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United); SpeechNow, 599 F.3d at 686, 696 (same); Human Life of 

Wash., Inc. v. Brumsickle, 624 F.3d 990, 1003-05 (9th Cir. 2010) (same), 

cert. denied, 131 S. Ct. 1477 (2011).10

Following Citizens United, section 100.22’s definition of express 

advocacy can trigger only two legal obligations: disclosure 

requirements, and (in combination with the major purpose test) 

PAC status. See supra pp. 7-8; J.A. 67-68. For entities like RTAO that 

do not make contributions, PAC status, in turn, triggers only disclosure 

and organizational requirements and no limits on their spending or on 

the contributions they can receive from eligible contributors. See supra

p. 11; J.A. 68.11 Because these disclosure and organizational 

 

10 RTAO suggests that there are different forms of “exacting 

scrutiny,” including exacting scrutiny that is “either strict or the 

functional equivalent of strict scrutiny.” (See Br. 17-18.) But the case 

RTAO cites for this proposition employed the same “substantial 

relation” test for exacting scrutiny as did Buckley, Citizens United, and 

all the other cases cited above. See Davis v. FEC, 554 U.S. 724, 744 

(2008). RTAO’s reliance (Br. 48-49) on FEC v. Mass. Citizens for Life, 

Inc., 479 U.S. 238 (1986), is equally misplaced: The statutory provision 

under review there was the ban on corporate independent expenditures. 

Although the Court referred to the major purpose test, it was not under 

review; the parties did not dispute that the group’s “central 

organizational purpose” was not candidate-related. 479 U.S. at 252 n.6. 

11 PACs that make contributions to candidates do not fall within the 

holding of SpeechNow and cannot receive annual contributions above 

$5,000 from any one person. See supra p. 11; 2 U.S.C. § 441a(a)(1)(C). 

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requirements are subject to intermediate scrutiny, Citizens United, 

130 S. Ct. at 914; SpeechNow, 599 F.3d at 696, and because neither 

section 100.22(b) nor the Commission’s political committee methodology 

triggers any spending limit, strict scrutiny has no application here. 

RTAO nonetheless argues that strict scrutiny should apply 

because any entity found to be a PAC under section 100.22(b) and the 

Commission’s methodology is subject to “an ‘onerous’ burden” akin to 

the burden to which the Supreme Court applied strict scrutiny in 

Citizens United. (Br. 18 (quoting Citizens United, 130 S. Ct. at 898), 

46-49.)12 RTAO’s argument is off the mark. The burden at issue in 

Citizens United was that a corporation was prohibited from speaking, 

and its only recourse under FECA was to create a separate PAC that 

could accept limited contributions (none from the corporation itself) to 

 

According to its articles of incorporation, RTAO cannot make 

contributions. (J.A. 68 n.4.) In any event, contribution limits, like 

disclosure requirements, are subject to intermediate scrutiny. 

McConnell, 540 U.S. at 134-41; Republican Nat’l Comm. v. FEC, 698 

F. Supp. 2d 150, 156 (D.D.C. 2010) (three-judge court), aff’d mem., 130 

S. Ct. 3544 (2010). 

12 RTAO concedes that “one-time, event-driven” disclosure, such as 

that which section 100.22(b) triggers for independent expenditures, is 

not subject to strict scrutiny and “requires no complicated work.” (See

RTAO Br. 45, 47; id. at 17 (referring to “non-PAC-style ‘disclosure’”).) 

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finance its advertising. See 130 S. Ct. at 898. The Supreme Court held 

that this ability to create a “separate association” did not change the 

fact that the statute at issue in that case constituted a ban on the 

corporation’s own speech, see id. at 897, and such bans are subject to 

strict scrutiny, id. at 898. In sharp contrast, RTAO faces no speech 

prohibition, and nothing in Citizens United states or implies that PAC 

disclosure provisions standing alone would be subject to strict scrutiny. 

See 130 S. Ct. at 914 (citing Buckley’s application of exacting scrutiny 

to FECA’s disclosure requirements, including those applicable to 

political committees); McKee, 649 F.3d at 55-57 (discussing Citizens 

United and rejecting argument that PAC disclosure requirements 

trigger strict scrutiny). 

In sum, the Commission’s tests for express advocacy and PAC 

status are subject to intermediate scrutiny. And since they are both 

justified by an important governmental interest, they do not offend the 

First Amendment. 

II. THE COMMISSION’S REGULATORY DEFINITION OF 

“EXPRESSLY ADVOCATING” IS CONSTITUTIONAL 

RTAO’s facial challenges include claims of both overbreadth and 

vagueness. A law is facially overbroad under the First Amendment only 

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

in relation to the statute’s plainly legitimate sweep.” United States v. 

Stevens, 130 S. Ct. 1577, 1587 (2010) (internal quotation marks and 

citation omitted); see McConnell, 540 U.S. at 207 (noting that plaintiffs 

bear the “heavy burden of proving” that law is overbroad “‘not only in 

an absolute sense, but also relative to the scope of the law’s plainly 

legitimate applications’”) (quoting Virginia v. Hicks, 539 U.S. 113, 120 

(2003)). A provision is unconstitutionally vague on its face if it fails to 

give “the person of ordinary intelligence a reasonable opportunity to 

know what is prohibited, so that he may act accordingly” and permits 

“arbitrary and discriminatory enforcement.” Grayned v. City of 

Rockford, 408 U.S. 104, 108 (1972). 

The Commission’s express advocacy regulation now operates 

mainly to implement disclosure requirements for communications that 

have far more explicitly electoral content than those for which Citizens 

United upheld disclosure, and the regulation closely follows the 

relevant Supreme Court precedent. The narrow definition in 11 C.F.R. 

§ 100.22(b) is neither vague nor overbroad and comports with the 

Court’s articulation of the “functional equivalent of express advocacy” 

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recognized in WRTL and applied in Citizens United. WRTL, 551 U.S. 

at 469-470; Citizens United, 130 S. Ct. at 889-90. Fundamentally, both 

section 100.22(b) and the WRTL test provide that any communication 

that can reasonably be interpreted as non-candidate-advocacy is 

excluded from regulation. Compare 11 C.F.R. § 100.22(b) (“[r]easonable 

minds could not differ”), with WRTL, 551 U.S. at 469-70 (“susceptible of 

no [other] reasonable interpretation”). 

To the extent these standards differ, section 100.22(b) is narrower 

than the WRTL test, as the regulation requires a communication with 

an “electoral portion” that is “unambiguous,” 11 C.F.R. § 100.22(b)(1), 

while WRTL looks to the mere “mention” of an election and similar 

indicia of express advocacy, see 551 U.S. at 470. In addition, both the 

WRTL and Commission’s tests avoid vagueness concerns by refusing to 

consider the subjective intent of the speaker. Compare Express 

Advocacy; Independent Expenditures; Corporate and Labor 

Organization Expenditures, 60 Fed. Reg. 35,292, 35,295 (July 6, 1995) 

(“[T]he subjective intent of the speaker is not a relevant consideration 

. . . .”), with WRTL, 551 U.S. at 472 (“To the extent th[e] evidence goes 

to WRTL’s subjective intent, it is again irrelevant.”); see also J.A. 69. 

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Thus, as this Court recognized in its first opinion in this case, section 

100.22(b) “limit[s] its application to communications that yield no other 

interpretation but express advocacy as described by Wisconsin Right to 

Life.” RTAO, 575 F.3d at 349. 

A. The Supreme Court Has Made Clear That Congress May 

Require Disclosure of a Broad Range of Expenditures That 

Goes Well Beyond “Magic Words” 

 

1. “Express Advocacy” Is a Statutory Interpretation, 

Not a Constitutional Requirement 

 

Some courts in the 1990s and early 2000s had held that a limited, 

“magic words” interpretation of “expressly advocating” was the outer 

constitutional boundary of Congress’s power to regulate campaign 

expenditures after Buckley. See, e.g., FEC v. Christian Action Network, 

Inc., 110 F.3d 1049, 1052-55 (4th Cir. 1997). In BCRA, however, 

Congress broadened the scope of 2 U.S.C. § 441b by prohibiting 

corporate and union spending on “electioneering communications.” 

2 U.S.C. §§ 434(f)(3)(A)(i), 441b(b)(2); see supra pp. 5-6. BCRA also 

created disclosure requirements for electioneering communications that 

are similar to those that apply to independent expenditures: The entity 

paying for the communication must publicly disclose information such 

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as the amount of the disbursement, who made it, and who contributed 

over $1,000 to fund it. See 2 U.S.C. § 434(f)(2). 

Relying on court decisions that had limited regulation to Buckley’s 

purported “magic words” restriction, a facial challenge was mounted 

asserting that BCRA’s regulation of electioneering communications was 

constitutionally infirm. See McConnell, 540 U.S. at 190-91 (discussing 

Buckley, 424 U.S. at 44 & n.52). The Supreme Court rejected that 

challenge. The Court noted that Buckley had narrowly construed FECA 

to require express advocacy in certain contexts because of vagueness in 

the original statutory definition of “expenditure,” not because the First 

Amendment required that construction in all circumstances. 

McConnell, 540 U.S. at 191-92. Accordingly, McConnell held that 

Buckley’s “express advocacy limitation, in both the expenditure and the 

disclosure contexts, was the product of statutory interpretation rather 

than a constitutional command.” Id. The Court therefore expressly 

upheld the constitutionality of prohibiting corporations from financing 

not only what Buckley termed express advocacy, but also electioneering 

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communications that “are the functional equivalent” of such advocacy. 

See McConnell, 540 U.S. at 189-94, 203-08.13 

Contrary to RTAO’s arguments (Br. 26-33), McConnell and WRTL

laid to rest the claim that Buckley limits express advocacy to 

communications with magic words. As Justice Thomas noted in dissent 

in McConnell, the majority opinion “overturned” all of the courts of 

appeals decisions — including this Court’s decision in Christian Action 

Network, 110 F.3d at 1049 — that had interpreted Buckley as limiting 

government regulation to a wooden magic-words formula. McConnell, 

540 U.S. at 278 n.11 (Thomas, J., dissenting). Other cases adopting or 

relying on this crabbed interpretation of Buckley, such as Virginia 

Society for Human Life, Inc. v. FEC, were similarly revealed to be in 

error. See 263 F.3d 379, 392 (4th Cir. 2001) (citing Buckley and 

Christian Action Network as support for magic words “limit”). As 

Justice Thomas further noted, McConnell, 540 U.S. at 278 n.11, the 

only express advocacy decision that McConnell did not cast into doubt 

was FEC v. Furgatch, 807 F.2d 857 (9th Cir. 1987) — a case that 

 

13 As discussed supra pp. 6-8, Citizens United later overturned 

McConnell’s upholding of the financing restrictions on electioneering 

communications but reaffirmed the portion of McConnell that had 

required disclosure for such communications. 

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rejected a magic-words limit, and from which the Commission derived 

the test codified at section 100.22(b). See 60 Fed. Reg. at 35,292-95 

(“[S]ection 100.22(b) . . . incorporate[s] . . . the Furgatch interpretation 

. . . .”).14

WRTL similarly concluded that permissible regulation was not 

limited to a cramped “magic words” interpretation of express advocacy. 

Indeed, the portion of WRTL on which RTAO relies affirmatively 

rejected the proposition, raised in Justice Scalia’s partial concurrence, 

that the only permissible test is a magic words test: 

Justice Scalia concludes that “[i]f a permissible test short 

of the magic-words test existed, Buckley would surely 

have adopted it.” We are not so sure. The question in

Buckley was how a particular statutory provision could be 

construed to avoid vagueness concerns, not what the 

constitutional standard for clarity was in the abstract, 

divorced from specific statutory language. Buckley’s 

intermediate step of statutory construction on the way to 

its constitutional holding does not dictate a constitutional 

test. The Buckley Court’s “express advocacy restriction 

was an endpoint of statutory interpretation, not a first 

principle of constitutional law.” 

 

WRTL, 551 U.S. at 474 n.7 (citations omitted; emphasis added). 

 

14 RTAO goes to great lengths (see Br. 30-32) to identify minor 

differences between Furgatch and section 100.22(b), but the regulation 

was never intended to replicate Furgatch to the letter, and, in any 

event, the Supreme Court’s more recent rulings confirm the regulation’s 

constitutionality. 

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2. Although Citizens United Struck Down Limits on 

Corporations’ Independent Campaign Advocacy, It 

Upheld Disclosure Requirements for a Broad Range of 

Communications That Lack Magic Words 

 

The recent Supreme Court decisions culminating in Citizens 

United hold that disclosure requirements may reach beyond express 

advocacy or its functional equivalent. After clarifying that Congress 

could regulate beyond magic words, McConnell upheld BCRA’s 

disclosure requirements for electioneering communications, 540 U.S. at 

194-99, noting that such disclosure serves the “important state 

interests” that Buckley recognized in upholding disclosure requirements 

— interests that include “providing the electorate with information” and 

“deterring actual corruption and avoiding any appearance thereof.” Id. 

at 196. The Court noted that the only constitutional challenges it had 

ever sustained to such disclosure provisions involved situations in 

which disclosure led to “threats, harassment, and reprisals” against 

individuals engaged in First Amendment activity. See id. at 197-98. 

The Court held that in the absence of evidence showing a “reasonable 

probability” of such incidents occurring, id. at 198-99 — evidence that 

RTAO has never tried to present — a constitutional challenge to 

disclosure of electioneering communications is “foreclose[d].” Id. at 197. 

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Subsequently, in WRTL, the Court upheld an as-applied challenge 

to BCRA’s financing restrictions on electioneering communications that 

were not “the functional equivalent of express advocacy.” WRTL, 551 

U.S. at 469-470. The Chief Justice’s controlling opinion held that “the 

functional equivalent of express advocacy” meant communications 

“susceptible of no reasonable interpretation other than as an appeal to 

vote for or against a specific candidate.” Id. The controlling opinion 

identified certain “indicia of express advocacy” that could be useful in 

applying this standard, such as whether the communication “mention[s] 

an election, candidacy, political party, or challenger” or “take[s] a 

position on a candidate’s character, qualifications, or fitness for office.” 

See id. at 470. Communications susceptible of reasonable 

interpretation as something other than candidate advocacy, however, 

were entitled to as-applied constitutional relief from BCRA’s prohibition 

on corporate treasury financing. Id. at 481. 

Ultimately, in Citizens United, the Supreme Court struck down 

FECA’s spending prohibitions on corporate financing of independent 

expenditures and electioneering communications on their face. 130 

S. Ct. at 913. The Court first applied the WRTL test to determine 

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whether the communications at issue were the functional equivalent of 

express advocacy. In one instance, the Court found that a 

communication — a movie — was the functional equivalent of express 

advocacy because it “would be understood by most viewers as an 

extended criticism of Senator [Hillary] Clinton’s character and her 

fitness for the office of the Presidency.” See 130 S. Ct. at 889-890. 

When viewed as a whole, the film had “no reasonable interpretation . . . 

other than as an appeal to vote against Senator Clinton.” Id. at 890. In 

the end, after finding that the movie met the WRTL test and applying 

strict scrutiny to the spending prohibition, the Court held that the 

electioneering communication financing prohibition did not further the 

government’s compelling interest in preventing actual or apparent 

corruption. See id. at 909-13.15

At the same time, however, the Supreme Court upheld BCRA’s 

disclosure requirements for all electioneering communications — even 

those that are not the functional equivalent of express advocacy. Id. at 

914-16. Eight Justices agreed that disclosure is “less restrictive” of 

 

15 The Court’s analysis of the understanding of “most viewers” 

appears to be broader than section 100.22(b)’s requirement that a 

communication is express advocacy if it “could only be interpreted by a 

reasonable person” as candidate advocacy. 

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speech than a limit on spending, id. at 915, and is a constitutionally 

permissible method of furthering the public’s important interest in 

knowing who is responsible for pre-election communications that speak 

about candidates, see id. at 915-16. Such mandatory disclosure is 

therefore constitutional under Buckley and McConnell, the Citizens 

United Court held, even if the ads contain no direct candidate advocacy 

but “only pertain to a commercial transaction.” Id. (citing Buckley, 424 

U.S. at 75-76; McConnell, 540 U.S. at 321). As the Court explained, 

“[t]he First Amendment protects political speech; and disclosure 

permits citizens and shareholders to react to the speech . . . in a proper 

way. This transparency enables the electorate to make informed 

decisions and give proper weight to different speakers and messages.” 

Id. at 916. In particular, when asked to confine the “disclosure 

requirements . . . to speech that is the functional equivalent of express 

advocacy,” the Court flatly “reject[ed] this contention.” Id. at 915. 

Instead, the Court held that the Constitution permits Congress to 

regulate communications that contain no words of electoral advocacy, 

much less any magic words. Id. at 914-16. 

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Thus, the Court in Citizens United upheld the electioneering 

communication disclosure requirements not just as to the movie about 

Hillary Clinton, but also as to three advertisements that were not the 

functional equivalent of express advocacy; these ads were less electionrelated than the two ads RTAO presented in this case. Indeed, one of 

the ads at issue in Citizens United was a 10-second commercial whose 

audio consisted, in its entirety, of the following sentence: “If you 

thought you knew everything about Hillary Clinton . . . wait ’til you see 

the movie.” Citizens United v. FEC, 530 F. Supp. 2d 274, 276 n.2 

(D.D.C. 2008).16 If mandatory disclosure of that ad — along with every 

other ad that is broadcast in the relevant jurisdiction and refers to a 

federal candidate in an impending election, see Citizens United, 130 

S. Ct. at 915 — is constitutional, then inexorably so is disclosure of 

RTAO’s “Survivors” ad, which says that a candidate “has been lying,” is 

 

16 The scripts of the other two ads were: 

(1) “First, a kind word about Hillary Clinton. She looks good in a pant 

suit. Now, a movie about everything else.” 

(2) “Who is Hillary Clinton? She’s continually trying to redefine herself 

and figure out who she is. At least with Bill Clinton he was just good 

time Charlie. Hillary’s got an agenda. Hillary is the closest thing we 

have in America to a European socialist.” 

Citizens United, 530 F. Supp. 2d at 276 nn.3-4 (brackets, quotation 

marks, and visual directions omitted). 

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“callous[ ],” and has “a lack of character and compassion that should 

give everyone pause.” (J.A. 57-58.) The government’s “informational 

interest alone is sufficient,” Citizens United, 130 S. Ct. at 915-16, to 

justify a regulation that mandates disclosure regarding such 

unambiguous campaign advocacy.17 

Finally, Citizens United’s upholding of disclosure requirements for 

a category of communications that goes well beyond express advocacy is 

of a piece with the Supreme Court’s long history of applying 

intermediate scrutiny and upholding disclosure requirements for issue 

advocacy. See, e.g., United States v. Harriss, 347 U.S. 612, 625 (1954) 

(upholding lobbying disclosure laws that “merely provided for a 

modicum of information from those who for hire attempt to influence 

legislation or who collect or spend funds for that purpose”); Doe v. Reed, 

 

17 RTAO discusses at length (Br. 24-25) a portion of Massachusetts 

Citizens for Life in which the Supreme Court noted that Buckley had 

applied an express advocacy construction to FECA’s disclosure 

requirements for expenditures. See 479 U.S. at 248-49. That 

uncontroversial proposition does not further RTAO’s case. As 

McConnell explained and WRTL reiterated, “[t]he Buckley Court’s 

‘express advocacy restriction was an endpoint of statutory 

interpretation, not a first principle of constitutional law.’” WRTL, 551 

U.S. at 474 n.7 (quoting McConnell, 540 U.S. at 190). And regardless of 

any dispute about Buckley’s meaning, Citizens United is now the 

controlling decision on disclosure. 

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130 S. Ct. 2811, 2819-22 (2010) (upholding disclosure of names and 

addresses of signatories on petitions to place referenda on ballot); see 

also First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 792 n.32 (1978) 

(striking down restrictions on ballot-measure spending but noting that 

“[i]dentification of the source of advertising may be required as a means 

of disclosure, so that the people will be able to evaluate the arguments 

to which they are being subjected”). 

3. RTAO’s Reliance on Other Legal Authorities Fails 

 

RTAO fails to cite, let alone take into account, the most recent 

court of appeals decision examining express advocacy following Citizens 

United: the First Circuit’s recent opinion in National Organization for 

Marriage v. McKee, 649 F.3d 34 (1st Cir. 2011). In McKee, the court 

expressly rejected the arguments that the WRTL test is no longer an 

effective constitutional standard after Citizens United, and that 

regulation of express advocacy is permissible only as far as a narrow 

reading of Buckley: 

[This] reading finds no support in the text of Citizens 

United . . . It is a large and unsubstantiated jump . . . to 

read Citizens United as casting doubt on the 

constitutionality of any statute or regulation using 

language similar to the [WRTL] test to define the scope of 

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its coverage. . . . In fact, the Court itself relied on the 

[WRTL] test . . . . 

Id. at 69 (citing Citizens United, 130 S. Ct. at 889-90). The First Circuit 

therefore upheld the constitutionality of a state regulation defining 

express advocacy as a communication that “in context can have no other 

reasonable meaning than to urge the election or defeat of one or more 

clearly identified candidate(s).” Id. at 67. The court also noted that 

Citizens United upheld the constitutionality of FECA’s disclosure 

provisions without any requirement that they be limited to express 

advocacy; to the contrary, the First Circuit observed, the Supreme 

Court approved mandatory disclosure even as to non-candidate “issue 

discussion.” Id. at 54-55 & n.29; see also Human Life of Wash., 624 

F.3d at 1016 (holding that, consistent with the First Amendment, state 

may mandate disclosure in ballot-measure context without regard to 

express advocacy limitations). The First Circuit’s persuasive opinion, 

thoroughly grounded in Citizens United and WRTL, explains precisely 

why RTAO’s arguments here must fail. 

RTAO cites a number of other cases from the courts of appeals, 

district courts, and state courts in putative support of its magic words 

argument, but its reliance on those decisions is misplaced. (Br. 26-29.) 

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All but four of the cited cases were decided before WRTL and so have no 

bearing on the issue here.18 Of the four cases that post-date WRTL, two 

are district court opinions about state ballot measures,19 and the 

Supreme Court has distinguished the regulation of such measures from 

regulation of activity related to candidate elections. See Citizens 

Against Rent Control v. Berkeley, 454 U.S. 290, 299 (1981); Bellotti, 435 

U.S. at 787 n.26. And RTAO’s assertion (Br. 28) that the Tenth Circuit 

limited express advocacy regulation to magic words in New Mexico 

Youth Organized v. Herrera is simply untrue: The court in that case 

noted that “the functional equivalent of express advocacy for the 

 

18 Many of these earlier decisions also do not support the proposition 

for which RTAO cites them. See, e.g., Am. Civil Liberties Union of Nev. 

v. Heller, 378 F.3d 979, 985 (9th Cir. 2004) (noting that express 

advocacy under FECA is the Furgatch standard); Ctr. for Individual 

Freedom v. Carmouche, 449 F.3d 655, 665-666 & n.7 (5th Cir. 2006) 

(applying a magic-words interpretation to cure vagueness problems in 

state statute but noting that such an interpretation “is not 

constitutionally mandated”). 

19 Broward Coal. Of Condos., Homeowners Ass’ns & Cmty. Orgs., 

Inc. v. Browning, Civ. No. 4:08-445, 2009 WL 1457972, at *6 (N.D. Fla. 

May 22, 2009) (“[A]rguments that . . . ballot issue speech can be the 

functional equivalent of express advocacy . . . simply find no basis in 

Buckley, McConnell, WRTL II, or any other case from the Supreme 

Court.”) (emphasis added); Nat’l Right to Work Legal Defense & Educ. 

Found., Inc. v. Herbert, 581 F. Supp. 2d 1132, 1145 (D. Utah 2008) 

(“The Utah statutes at issue . . . regulate the influencing by individuals 

and entities of ballot measures.”). 

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election or defeat of a specific candidate” is regulable and nowhere 

restricted this category to magic words. See 611 F.3d 669, 676 (10th 

Cir. 2010). 

The remaining case RTAO cites is North Carolina Right to Life, 

Inc. v. Leake, 525 F.3d 274 (4th Cir. 2008), which, as this Court has 

already noted, RTAO, 575 F.3d at 349, addressed a state statute that 

“swe[pt] far more broadly than WRTL’s ‘functional equivalent of express 

advocacy’ test.” Leake, 525 F.3d at 297. The express advocacy 

definition at issue in Leake was significantly more expansive and less 

precise than section 100.22(b), including such “contextual factors” as 

“the timing of the communication in relation to the events of the day” 

and “the cost of the communication.” Leake, 525 F.3d at 298. In 

striking down that overbroad and vague state statute, Leake concluded 

that the state “remains free to adopt a definition of express advocacy 

consistent with the standards approved by McConnell and WRTL.” Id. 

at 301. As Citizens United and WRTL make clear, section 100.22(b) is 

such a standard. See RTAO, 575 F.3d at 350 (quoting Leake). 

RTAO also relies upon Leake to argue (Br. 20-23) that section 

100.22(b) violates the First Amendment by allegedly reaching 

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communications that are not “unambiguously campaign related.” This 

claim fails on the face of the regulation, which requires that “[t]he 

electoral portion of the communication [be] unmistakable, 

unambiguous, and suggestive of only one meaning,” which is “advocacy 

of the election or defeat of one or more clearly identified candidate(s).” 

11 C.F.R. § 100.22(b) (emphasis added). Any communication that 

unmistakably and unambiguously encourages the defeat of a specific 

candidate is, by definition, “unambiguously campaign related.” Thus, 

even assuming arguendo that the Constitution were to limit disclosure 

to those communications that are unambiguously campaign related, 

section 100.22(b) would not extend beyond that limit. 

In any event, there is no such constitutional requirement. 

Citizens United upheld mandatory disclosure for 10-second ads that 

mentioned a candidate once and contained no direct electoral advocacy. 

Nowhere in that opinion did the Court find that such ads were 

“unambiguously campaign related”; to the contrary, the Court noted 

that they were for commercial activity and nonetheless upheld 

disclosure as to them. Although Leake contains language describing an 

“unambiguously campaign related” standard, 525 F.3d at 281, the 

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decision ultimately affirmed the government’s power to define express 

advocacy “consistent with the standards approved by McConnell and 

WRTL.” Id. at 301. As this Court has noted, section 100.22(b) is 

consistent with those standards. See RTAO, 575 F.3d at 349. 

4. Section 100.22(b) Is Within the Commission’s 

Authority and Consistent with Congressional Intent 

 

Finally, RTAO asserts (Br. 24, 32-34) that the Commission lacked 

statutory authority to promulgate section 100.22(b), but RTAO does not 

even mention — much less make any effort to satisfy — the required 

elements of such a claim. See generally Chevron U.S.A., Inc. v. Natural 

Res. Def. Council, Inc., 467 U.S. 837 (1984). Because Congress codified 

the words “expressly advocating” without definition or limit, see

2 U.S.C. § 431(17), the Commission’s regulatory construction of the 

statutory term is a lawful exercise of administrative interpretation. See 

Chevron, 467 U.S. at 842-45. And Congress later explicitly provided by 

statute that BCRA’s amendments to FECA would not affect section 

100.22(b). See BCRA § 201(a), 116 Stat. 89 (codified at 2 U.S.C. 

434(f)(3)(A)(ii)) (“Nothing in [the definition of ‘electioneering 

communication’] shall be construed to affect the interpretation or 

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application of section 100.22(b) of title 11, Code of Federal 

Regulations.”). 

RTAO’s arguments about congressional intent are makeweight at 

best. They are directly contrary to this statutory provision that singles 

out the Commission’s express advocacy regulation for protection.20 

B. Section 100.22(b), Which Closely Tracks a Standard the 

Supreme Court Has Established and Used, Is Not 

Unconstitutionally Vague 

 

 Even less tenable than RTAO’s claim that the government can 

regulate only magic words is its claim that section 100.22(b) is 

unconstitutionally vague. The controlling opinion in WRTL specifically 

rejected Justice Scalia’s dissenting argument that the WRTL test was 

“impermissibly vague.” WRTL, 551 U.S. at 474 n.7. And the fact that 

the Court applied the WRTL test in Citizens United puts to rest any 

claim that the standard is constitutionally deficient. The Court’s 

repeated use of a test based on a communication’s “reasonable” 

interpretation undermines the finding in Virginia Society for Human 

 

20 BCRA’s explicit statutory defense of section 100.22(b) also belies 

RTAO’s unsupported assertion (Br. 34) that Congress intended to 

restrict the definition of independent expenditures to “magic-words 

express advocacy” by creating the separate category of electioneering 

communications. 

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Life that section 100.22(b) is flawed because the regulation purportedly 

“shifts the focus of the express advocacy determination away from the 

words themselves to the overall impressions of the hypothetical, 

reasonable listener or viewer.” See 263 F.3d at 391; supra pp. 33-34. 

The Commission’s regulation is objective and sufficient for a reasonable 

person to understand.21

RTAO argues that WRTL’s “functional equivalent of express 

advocacy” test becomes vague if it is not tethered to BCRA’s statutory 

criteria for electioneering communications, relying heavily on WRTL’s 

statement that “this test is only triggered if the speech meets the bright 

line requirements of [the electioneering communications definition] in 

the first place.” (See Br. 34-35 (quoting WRTL, 551 U.S. at 474 n.7).) 

But WRTL’s acknowledgement that the statutory “trigger” for the 

WRTL test is a “bright line” requirement in no way suggests that the 

test itself would be vague absent that “trigger” or with a different 

 

21 The regulation’s “reasonable person” test is like other objective 

constitutional tests. See, e.g., Wyatt v. Cole, 504 U.S. 158, 166 (1992) 

(qualified immunity depends upon a “wholly objective standard” based 

on whether a “reasonable person” would have known of clearly 

established rights) (citation omitted); Florida v. Jimeno, 500 U.S. 248, 

251 (1991) (“[C]onsent under the Fourth Amendment is that of 

‘objective’ reasonableness — what would the typical reasonable person 

have understood by the exchange between the officer and the suspect?”). 

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“trigger.” See 551 U.S. at 474 n.7 (providing four reasons why the test 

is not vague); see also McKee, 649 F.3d at 70 (holding that state 

regulation similar to WRTL test and without timing requirement was 

not vague). Whether a communication is made within a 30- or 60-day 

window simply has no bearing on the vagueness of any test regarding 

the content of the communication itself. The test remains the same 

outside the time windows, and the test, as WRTL specifically held, is 

not vague.22

RTAO makes four other arguments as to why section 100.22(b) is 

unconstitutionally vague, but none has merit. First, RTAO notes 

(Br. 38-39) that Citizens United criticized 11 C.F.R. § 114.15 — 

an “11-factor balancing test” test, see 130 S. Ct. at 895, that the 

 

22 RTAO relies on the district court’s opinion in Ctr. for Individual 

Freedom, Inc. v. Tennant, which opined that WRTL’s holding was “on 

shaky ground, at least as to the vagueness issue,” and that the Supreme 

Court was “fractured” on that issue. See __ F. Supp. 2d __, 2011 WL 

2912735, at *20 (S.D.W.V. 2011), appeals filed, Nos. 11-1952, 11-1993 

(4th Cir.); see also id., at *21 n.25 (noting that “fractured” and “obscure” 

opinions from Supreme Court and this Circuit caused district court 

“some hesitation” in reaching conclusion regarding vagueness). 

However, all lower courts must follow controlling Supreme Court 

holdings. See Citizens United, 130 S. Ct. at 889-90 (noting that Chief 

Justice’s opinion in WRTL controls, and applying WRTL test); Agostini 

v. Felton, 521 U.S. 203, 237 (1997) (directing lower court not to 

disregard Supreme Court precedent even if lower court believes that the 

precedent has been overruled by implication). 

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Commission promulgated to define permissible corporate electioneering 

communications after WRTL. However, section 100.22(b) displays none 

of that regulation’s infirmities. Citizens United faulted section 114.15 

because its complexity effectively required corporations to “ask [the 

FEC] for prior permission to speak.” 130 S. Ct. at 895. The disclosure

requirements implemented by section 100.22(b), in contrast, “do not 

prevent anyone from speaking.” Id. at 914. Moreover, section 100.22(b) 

is not a balancing test and has only two components that could arguably 

be considered “factors”: (1) that the communication have an “electoral 

portion [that is] unmistakable, unambiguous, and suggestive of only one 

meaning,” and (2) that “reasonable minds could not differ” that the 

communication is candidate advocacy. 11 C.F.R. § 100.22(b)(1)-(2); see 

also J.A. 72-73 (comparing regulations). The latter language is 

essentially identical to the WRTL test, and the addition of the 

“unambiguous electoral portion” requirement only renders section 

100.22(b) less vague than that already constitutional standard. 

Second, RTAO claims WRTL held that considering a 

communication’s “proximity to the election” is an impermissibly vague 

consideration. (Br. 37, 40.) But WRTL said no such thing. The 

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controlling opinion held that the timing of speech cannot be used as a 

proxy for determining the speaker’s intent, 551 U.S. at 472 — which, as 

noted supra pp. 27-28, 44-45, is also an impermissible consideration 

under section 100.22(b). But otherwise WRTL simply observed that, by 

statutory definition, all electioneering communications are made near 

an election, so taking their proximity into account would overinclusively 

imply that they all are candidate advocacy. See 551 U.S. at 472. 

In contrast, section 100.22(b) and the disclosure provisions it 

implements are not restricted to narrow pre-election windows, and it 

would defy common sense to assess whether a communication is express 

advocacy without even considering, for example, if it is made during an 

election year. Such “limited contextual factors” as the date of the 

broadcast are thus objective and relevant to any determination of 

express advocacy, as WRTL itself held. 551 U.S. at 474 (“Courts need 

not ignore basic background information that may be necessary to put 

an ad in context — such as whether an ad describes a legislative issue 

that is either currently the subject of legislative scrutiny or likely to be 

the subject of such scrutiny in the near future . . . .”) (internal quotation 

marks omitted); see also J.A. 69-70. 

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Third, RTAO selects individual words from the regulation, omits 

the surrounding text, and then suggests that these words (out of 

context) are vague. (See Br. 37, 41.) For example, RTAO states that 

the word “suggestive” is vague, at least in comparison to the word 

“susceptible,” which is the corresponding term in the WRTL test. (Id. at 

41 & n.18.) Perhaps, if it stood alone, “suggestive” could be vague. But 

the word does not stand alone, and the complete phrase in which it 

appears — “unmistakable, unambiguous, and suggestive of only one 

meaning,” 11 C.F.R. § 100.22(b) — cannot be deemed unconstitutionally 

vague in light of WRTL’s essentially identical test: “susceptible of no 

[other] reasonable interpretation.” 551 U.S. at 469-70. There is no 

meaningful difference between these phrases that would render the 

regulation more vague than the test embraced by the Court in WRTL. 

See RTAO, 575 F.3d at 349 (comparing text of regulation and WRTL); 

J.A. 69 (same). 

Fourth, RTAO claims (Br. 43) that section 100.22(b) is vague 

because the district court held RTAO’s “Change” ad to be the functional 

equivalent of express advocacy (J.A. 74), while the Commission has 

stated that the ad does not meet that narrow standard. Although the 

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purpose of “Change” may well have been to influence the presidential 

election, the advertiser’s subjective intent is not a permissible 

consideration, WRTL, 551 U.S. at 468, and the content of the ad 

reasonably can be viewed on its face as encouraging viewers to educate 

themselves about then-Senator Obama’s position on abortion. (See

J.A. 57 (text of ad: “[W]hat is the real truth about . . . Obama’s position 

on abortion? . . . To learn more real truth about Obama, visit 

[website].”).) Even ads that are highly critical of candidates’ positions 

on issues do not necessarily constitute express advocacy. See Buckley, 

424 U.S. at 42. Because reasonable minds could differ about whether 

“Change” encourages electoral action versus “some other kind of action,” 

11 C.F.R. § 100.22(b)(2), the Commission respectfully disagrees with the 

district court’s determination. 

But that disagreement does not arise from any vagueness in the 

test; instead, it is the product of the narrowness and precision with 

which the Commission applies the test. Moreover, a regulatory 

standard is not unconstitutionally vague simply because there are close 

questions that may result when it is applied. See United States v. 

Wurzbach, 280 U.S. 396, 399 (1930) (rejecting vagueness challenge to 

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Federal Corrupt Practices Act and noting that “[w]herever the law 

draws a line there will be cases very near each other on opposite sides”). 

In any event, “Change” indisputably falls within the category of 

candidate-related communications as to which Citizens United held 

that disclosure may be mandated. See 130 S. Ct. at 915. 

In contrast, there can be no debate that “Survivors” is express 

advocacy and lawfully regulated as such under section 100.22(b). (J.A. 

74-75.) First, the ad criticizes then-Senator Obama’s character, saying 

that he has shown “callousness” and “a lack of character and 

compassion.” Such character attacks are among what WRTL called 

“indicia of express advocacy.” See 551 U.S. at 470 (holding that indicia 

include “tak[ing] a position on a candidate’s character”). Second, 

“Survivors” refers to the candidate’s political party, another mark of 

express advocacy. Id. (“mention[ing] an election . . . political party, or 

challenger”). Third, the ad attacks the candidate personally by saying 

that he “has been lying” for years. Fourth, “Survivors” characterizes 

the candidate’s alleged record on the abortion issue as “horrendous” and 

uses this as evidence of his alleged “callousness” and “lack of character 

and compassion.” See id. at 470 n.6 (distinguishing WRTL’s ads from 

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those that “condemn[ ] [a candidate’s] record on a particular issue”). 

Fifth, unlike issue advocacy, “Survivors” does not implore listeners to 

take action relative to any public policy on abortion. See id. at 470 

(“[G]enuine issue ad[s] . . . exhort the public to adopt [a] position, and 

urge the public to contact public officials . . . .”). Finally, and most 

importantly, “Survivors” says that “Obama’s callousness . . . reveals a 

lack of character and compassion that should give everyone pause” 

(emphasis added). Because the phrase “give everyone pause” is 

explicitly linked to the candidate’s character, not to any action on public 

policy, there is only one reasonable interpretation of that phrase: 

“Everyone” should “pause” before voting for that candidate. 

To ask listeners to hesitate before supporting a candidate is 

equivalent to asking them to consider “reject[ing]” him — one of the 

“magic words” of express advocacy listed in Buckley, 424 U.S. at 44 

n.52. See also McKee, 649 F.3d at 70 (noting that “no other reasonable 

meaning” test is “is certainly as clear, if not more so, as words such as 

‘support’ . . . that the Supreme Court has held non-vague”). Indeed, the 

ad emphasizes not only that abortion opponents should reject the 

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candidate, but also that “everyone,” regardless of any position on 

abortion, should hesitate because the candidate has character flaws. 

Thus, “[r]easonable minds could not differ” that “Survivors” 

encouraged listeners not to vote for then-Senator Obama. This is 

express advocacy under section 100.22(b), and its regulation is 

constitutionally permissible under WRTL and Citizens United. 

III. THE COMMISSION’S FEDERAL REGISTER NOTICE ABOUT 

HOW IT DETERMINES PAC STATUS IS NOT FINAL AGENCY 

ACTION SUBJECT TO JUDICIAL REVIEW 

 

RTAO challenges a Federal Register notice in which the 

Commission provided guidance as to how it determines whether the 

major purpose test for political committee status has been met. 72 Fed. 

Reg. 5595 (Feb. 7, 2007). But the Administrative Procedure Act (“APA”) 

provides that courts may hear challenges only to “final agency action.”23 

5 U.S.C. 704. Final agency action consummates the agency’s decisionmaking process and determines the rights and obligations of parties. 

Bennett v. Spear, 520 U.S. 154, 177-178 (1997); Flue-Cured Tobacco 

Coop. Stabilization Corp. v. EPA, 313 F.3d 852 (4th Cir. 2002) (holding 

 

23 The Commission raised this issue during the first appeal in this 

case, but the Court did not address it. See 575 F.3d at 350-51. The 

Commission renewed the argument below. (J.A. 76 n.6.) 

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publication of report not final agency action); Invention Submission 

Corp. v. Rogan, 357 F.3d 452, 459 (4th Cir. 2004). 

The purpose of the Federal Register notice that RTAO challenges 

was to explain the Commission’s decisions not to promulgate a revised 

definition of “political committee” and not to single out for regulation all 

entities that are “political organizations” under section 527 of the 

Internal Revenue Code. See 72 Fed. Reg. at 5595, 5598. 

 Thus, the notice neither establishes a binding norm nor decides 

any entity’s legal status. It does not create a new regulation or change 

past policy. It simply explains how the Commission’s prior enforcement 

actions provide guidance to organizations about the Commission’s 

application of the major purpose test. See 72 Fed. Reg. at 5604. 

Such an explanation is not final agency action subject to review under 

the APA. 

IV. THE COMMISSION’S METHOD OF APPLYING THE MAJOR 

PURPOSE TEST IS CONSTITUTIONAL AND CONSISTENT 

WITH EVERY JUDICIAL DECISION ON THAT SUBJECT 

Even if reviewable, the Commission’s case-by-case approach to 

determining political committee status is constitutional. Nothing has 

undermined its validity since this Court preliminarily concluded RTAO 

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55

was unlikely to succeed on the merits of its claim because the 

Commission’s analysis of the major purpose test was properly “adopted 

from Supreme Court jurisprudence” and consistent with “the positions 

taken by the courts.” 575 F.3d at 351. See Koerber v. FEC, 583 

F. Supp. 2d 740 (E.D.N.C. 2008) (denying preliminary relief in 

challenge to Commission’s approach to determining political committee 

status, and noting that “an organization’s ‘major purpose’ is inherently 

comparative and necessarily requires an understanding of an 

organization’s overall activities, as opposed to its stated purpose”).24 

As explained supra p. 8, FECA’s definition of a “political 

committee” includes any organization that makes more than $1,000 in 

expenditures or receives more than $1,000 in contributions. 2 U.S.C. 

§ 431(4)(A). In Buckley, however, the Supreme Court narrowed the 

reach of FECA’s political committee requirements to organizations 

controlled by a candidate or whose major purpose is the nomination or 

election of candidates. Buckley, 424 U.S. at 79. The activities of 

“‘political committees’ so construed can be assumed to fall within the 

 

24 RTAO’s erroneous argument (Br. 44-49) that the Commission’s 

application of the major purpose test is subject to strict scrutiny 

because of the purportedly “onerous” burdens that FECA imposes on 

PACs is refuted supra pp. 24-25. 

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core area sought to be addressed by Congress. They are, by definition, 

campaign related.” Id.; McConnell, 540 U.S. at 170 n.64. With that 

construction in place, FECA’s disclosure requirements for political 

committees “directly serve substantial governmental interests.” See 

Buckley, 424 U.S. at 68; see also SpeechNow, 599 F.3d at 696. 

For decades, the Commission has determined on a case-by-case 

basis whether an organization’s major purpose is the nomination or 

election of candidates. See 72 Fed. Reg. at 5596 (“[S]ince [FECA’s] 

enactment in 1971, the determination of political committee status has 

taken place on a case-by-case basis.”). To make that determination, the 

Commission has consulted sources such as the group’s public 

statements, fundraising appeals, government filings (e.g., IRS notices), 

charters, and bylaws. See id. at 5601, 5605 (describing sources). 

Because no two groups are exactly alike, the Commission’s analysis has 

frequently turned on a group’s specific activities, such as spending on a 

particular election or issue-advocacy campaign. See id. at 5601-02, 

5605. 

Courts have endorsed the Commission’s examination of these 

factors and have relied on the very same factors to make their own 

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major purpose determinations. See, e.g., FEC v. Malenick, 310 F. Supp. 

2d 230, 234-37 (D.D.C. 2004) (considering organization’s statements in 

brochures and “fax alerts” sent to potential and actual contributors, as 

well as its spending influencing federal elections); FEC v. GOPAC, Inc., 

917 F. Supp. 851, 859 (D.D.C. 1996) (“The organization’s purpose may 

be evidenced by its public statements of its purpose or by other means, 

such as its expenditures in cash or in kind to or for the benefit of a 

particular candidate or candidates.”); id. at 864, 866 (description of 

organization’s meetings attended by national leaders; reference to 

organization’s “Political Strategy Campaign Plan and Budget”). 

In light of this history of major purpose determinations turning on 

highly fact-specific examinations, the Commission decided in 2007 not 

to promulgate a rule classifying section 527 organizations as political 

committees per se. See supra pp. 9-11. Instead of creating categorical 

regulations that might have led to overbroad or underinclusive PAC 

determinations, see 72 Fed. Reg. at 5598-5601 (analyzing differences 

between political organizations under tax law and PACs under FECA), 

the Commission, in an exercise of discretion, decided to continue its 

practice of implementing the major purpose test on a case-by-case basis. 

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See id. at 5595-5602. The Commission then “discusse[d] several 

recently resolved administrative matters that provide considerable 

guidance to all organizations regarding . . . political committee status.” 

Id. at 5595; see 5601-5606 (discussing matters). 

It is well-settled that agencies have general discretion to 

administer the law through individual adjudications rather than by 

promulgating categorical rules. See, e.g., SEC v. Chenery Corp.,

332 U.S. 194, 203 (1947) (“[T]he choice made between proceeding by 

general rule or by individual . . . litigation is one that lies primarily in 

the informed discretion of the administrative agency.”); NLRB v. Bell 

Aerospace Co., 416 U.S. 267, 292-95 (1974) (relying upon Chenery in 

leaving up to Board whether to proceed by rulemaking or adjudication). 

And the Commission’s specific decision to make PAC status 

determinations on a case-by-case basis was challenged and expressly 

upheld in Shays v. FEC, 511 F. Supp. 2d 19 (D.D.C. 2007). 

Despite thirty-five years’ worth of enforcement history — some of 

which the Federal Register notice describes in great detail — RTAO 

does not argue that the Commission has ever misapplied the major 

purpose test. Nor does RTAO claim that its own status has been 

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improperly determined, as the Commission has never asserted that 

RTAO is a PAC. Also, there is no indication in the factual record of this 

case that RTAO has actually paid for any independent expenditures or 

otherwise met the statutory criteria for PAC status, much less the 

major purpose test.25 Instead, RTAO argues (Br. 52-53) that the 

Commission’s case-by-case analytical method is, in the abstract, 

unconstitutionally vague, and that the only permissible means of 

implementing the major purpose test is to ask whether an organization 

spends more than half of its funds on two things: magic-words express 

 

25 The Commission generally considers the major purpose test only 

after determining that an organization has either made more than 

$1,000 in expenditures or received more than $1,000 in contributions. 

See 72 Fed. Reg. at 5603-04. The Shays court criticized this aspect of 

the Commission’s approach for being too narrow and potentially 

excluding some organizations whose major purpose might be considered 

the election of candidates; the court believed that the express advocacy 

analysis is unnecessary for groups whose major purpose is known to be 

campaign-related. See 511 F. Supp. 2d at 26-27. Although the 

Commission disagrees with that interpretation, the Commission 

recognizes that its own approach may tend to limit the number of 

organizations that qualify as political committees. RTAO ignores this 

limiting aspect of the Commission’s methodology. Cf. Akins v. FEC, 101 

F.3d 731, 741-42 (D.C. Cir. 1997) (en banc) (D.C. Circuit would not have 

applied major purpose test if organization made more than $1,000 in 

contributions), vacated on other grounds, 524 U.S. 11 (1998). 

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advocacy or contributions to candidates.26

Neither law nor logic supports RTAO’s confined interpretation of 

the Buckley test. RTAO relies primarily (Br. 51-53) on Massachusetts 

Citizens for Life, 479 U.S. 238 (“MCFL”), and Colo. Right to Life 

Comm., Inc. v. Coffman, 498 F.3d 1137 (10th Cir. 2007). But the scope 

of the major purpose test was not at issue in MCFL, where it was 

“undisputed” that the plaintiff’s “central organizational purpose” was 

not candidate-related. 479 U.S. at 252 n.6. The Court’s statement that 

MCFL ’s “independent spending” could theoretically “become so 

extensive that the organization’s major purpose may be regarded as 

campaign activity,” id. at 262, neither states nor implies that express 

advocacy communications are the only kind of “campaign activity” that 

can satisfy the major purpose test. Nor did the opinion create a rigid 

test equating “extensive” with more than fifty percent of an 

 

26 RTAO repeatedly attempts to elide the statutory PAC criterion of 

making $1,000 in expenditures with the major purpose test. Most 

starkly, RTAO correctly notes that electioneering communications do 

not count towards “statutory PAC status” (Br. 53), but then 

immediately pivots from this to an uncited assertion that 

“electioneering communications may not count toward major purpose” 

(Br. 54), as if those two inquiries were interchangeable. They are not. 

See Buckley, 424 U.S. at 79 (noting statutory criteria and imposing 

additional construction of major purpose requirement). 

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organization’s total spending.27 See RTAO, 575 F.3d at 351 (“[I]n 

[MCFL], the Court examined the entire record to conclude that the 

plaintiff did not satisfy ‘the major purpose’ test.”) (emphasis in original). 

As Coffman notes, MCFL “suggested two methods to determine an 

organization's ‘major purpose’: (1) examination of the organization’s 

central organizational purpose; or (2) comparison of the organization’s 

independent [express advocacy] spending with overall spending.” 

Coffman, 498 F.3d at 1152 (emphasis added); see also Herrera, 611 F.3d 

at 678 (citing Colo. Right to Life).28 Because the Commission applies 

the major purpose test precisely by examining an “organization’s 

central organizational purpose,” the Commission’s approach is entirely 

consistent with the Tenth Circuit’s understanding of the major purpose 

 

27 While RTAO cannot identify any errors in the Commission’s 

actual application of the major purpose test, RTAO’s proposal to require 

that fifty percent of an organization’s spending be express advocacy 

would be underinclusive. For example, an organization that spends a 

total of $20,001 — $10,000 on magic words express advocacy and 

$10,001 on rent — would be a major-purpose group but would fail 

RTAO’s wooden test. 

28 The Tenth Circuit’s statement, 498 F.3d at 1152, that MCFL

equated “independent spending” with “express advocacy” is not 

supported by MCFL itself. See 479 U.S. at 262 (referring to “MCFL’s 

independent spending” without limiting such spending to express 

advocacy). 

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test. See also Shays, 511 F. Supp. 2d at 26-31 (upholding Commission’s 

approach to major purpose test).29 

The Commission’s extensive explanation of its methodology, 

moreover, distinguishes this case from Leake, where the Court struck 

down a state statute that “provide[d] absolutely no direction as to how 

North Carolina determines an organization's ‘major purposes,’” and that 

was implemented by a state agency applying “unannounced criteria.” 

525 F.3d at 289-90. In contrast, the Commission has publicly explained 

its analysis and listed its criteria in the Federal Register, see 72 Fed. 

Reg. at 5601-06, and it continues to provide guidance on a case-by-case 

basis. Indeed, so much guidance appears in the Commission’s Federal 

Register notices, advisory opinions, and website that RTAO accuses the 

Commission of providing too much information. (See Br. 46-47 

(describing FEC guidance materials), 55-57 (describing factors 

Commission applies in major purpose determinations).) 

 

29 RTAO proposes that the major purpose test could also be satisfied 

if the “entity’s organic documents” demonstrate “an express intention to 

operate as a political committee, e.g., by being designated as a ‘separate 

segregated fund.’” (Br. 52.) But such a “test” would be meaningless, for 

an entity designated as a separate segregated fund has, by definition, 

already chosen to be a PAC. See 2 U.S.C. § 431(4)(B). The major 

purpose test is therefore irrelevant to such entities. 

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Finally, RTAO raises a variety of unsubstantiated assertions that 

the Commission’s PAC determinations “chill” First Amendment activity 

and result in investigations so burdensome that they can even “shut 

down an organization.” (See Br. 54, 56.) But “disclosure requirements 

. . . do not prevent anyone from speaking,” Citizens United, 130 S. Ct. 

at 914 (internal quotation marks omitted), and the Commission can 

discern a group’s “major purpose” without conducting an intrusive 

investigation. Sources such as the group’s public statements and 

publicly available government filings often provide the relevant facts. 

See supra pp. 56-57 (describing sources of information). For example, 

before even opening an investigation in one matter, the FEC concluded 

that an organization was not a PAC based on the group’s public 

description of its purpose and the scant record of contributions. FEC 

Matter Under Review 4867, Tribal Alliance for Sovereignty, Factual 

and Legal Analysis at 12 (Dec. 11, 1998) (available at 

http://eqs.nictusa.com/eqsdocsMUR/0000428F.pdf). And when more 

information is necessary, the Commission’s balanced enforcement 

mechanisms, as crafted by Congress, provide specific “procedures 

purposely designed to ensure fairness . . . to respondents.” Perot v. 

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FEC, 97 F.3d 553, 559 (D.C. Cir. 1996). The Commission, for example, 

does not even begin to investigate potential violations of the Act unless 

at least four of its members have voted to find reason to believe that the 

law has been violated. See 2 U.S.C. § 437g(a)(2). 

RTAO’s speculative and generalized objections to agency 

investigations do not obviate the need for proper enforcement of the 

nation’s laws. Cf. FTC v. Std. Oil Co. of Cal., 449 U.S. 232, 244 (1980) 

(agency proceedings are “part of the social burden of living under 

government”) (internal quotation marks omitted). 

More fundamentally, the primary obligation of PACs that make no 

contributions is disclosure, which is not significantly more burdensome 

than the independent expenditure reporting requirements that Citizens 

United upheld. Indeed, relying upon Citizens United, the D.C. Circuit 

recently upheld the organizational and reporting requirements for 

political committees that make only independent expenditures, noting 

that the additional reporting requirements “are minimal” and the 

organizational requirements do not “impose much of an additional 

burden” when compared to independent expenditure reporting. See 

SpeechNow, 599 F.3d at 697-98. Given Citizens United’s upholding of 

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disclosure requirements made by entities that are not political 

committees for a category of communications that covers far more than 

express advocacy, RTAO’s claim about the potential burdens of PAC 

determination and status is even weaker than it was when this Court 

denied preliminary relief. (See J.A. 77-79.) 

CONCLUSION 

 Three decades of judicial opinions indisputably establish the 

importance of the government’s interest in ensuring that the American 

public has access to information regarding the financing of candidate 

advocacy and other campaign activity. The Commission’s regulatory 

definition of express advocacy and the agency’s approach to determining 

political committee status implement Congress’s statutory directives in 

this area narrowly and transparently. Nothing in the Constitution 

prohibits these reasonable means of increasing the quality of 

information reaching citizens and furthering the First Amendment goal 

of promoting an informed public. 

 

 

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 Respectfully submitted, 

ANTHONY HERMAN 

General Counsel 

DAVID KOLKER 

Associate General Counsel 

HARRY J. SUMMERS 

Assistant General Counsel 

 /s/ Adav Noti 

ADAV NOTI 

Attorney 

Federal Election Commission

999 E Street NW 

Washington, DC 20463 

(202)694-1650 

TONY WEST 

Assistant Attorney General 

NEIL H. MACBRIDE 

United States Attorney 

MICHAEL S. RAAB 

DANIEL TENNY 

Attorneys, Appellate Staff 

Civil Division, Room 7215 

U.S. Department of Justice 

950 Pennsylvania Avenue NW

Washington, DC 20530-0001 

(202)514-1838 

October 20, 2011 

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CERTIFICATE OF COMPLIANCE 

This brief complies with the type-volume limitation of Fed. R. App. 

P. 32(a)(7)(B) because this brief contains 13,147 words, excluding the 

parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). 

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 this brief has been prepared in a proportionally spaced typeface 

using Microsoft Word in 14-point Century font. 

 /s/ Adav Noti 

Adav Noti 

Attorney 

Federal Election Commission 

999 E Street NW 

Washington, DC 20463 

 

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CERTIFICATE OF SERVICE 

I hereby certify that on October 20, 2011, I will electronically file 

the foregoing using the Court’s CM/ECF system, which will then send a 

notification of such filing to the following: 

 Michael Boos, michael.boos@gte.net 

 James Bopp, Jr., jboppjr@aol.com 

 Kaylan Lytle Phillips, kphillips@bopplaw.com 

Richard Eugene Coleson, rcoleson@bopplaw.com 

Debra J. Prillaman, debra.prillaman@usdoj.gov 

 /s/ Adav Noti 

Adav Noti 

Attorney 

Federal Election Commission 

999 E Street NW 

Washington, DC 20463 

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