United States District Court

Eastern District of North Carolina

Northern Division

Holly Lynn Koerber and

Committee for Truth in Politics, Inc.,

Plaintiffs,

v.

Federal Election Commission,

Defendant.

Case No. 2:08-cv-39-H

Consent Motion for Leave to Amend Complaint 

for Declaratory and Injunctive Relief

Plaintiffs Holly Lynn Koerber and Committee for Truth in Politics, Inc. (“CTP”) respectfully

request leave to amend their complaint. Pursuant to Federal Rule of Civil Procedure 15(a)(2),

Plaintiffs have obtained the written consent of Defendants for this amendment. (Dkt. 57, 59, 60).

Dated: May 14, 2010

/s/ Paul Stam

Paul Stam, paulstam@bellsouth.net

State Bar No. 6865

STAM & DANCHI, PLLC

P.O. Box 1600

510 W. Williams Street

Apex, NC 27502

919/362-8873 telephone

919/387-7329 facsimile

Local Counsel for Plaintiffs

Respectfully submitted,

/s/ James Bopp, Jr.

James Bopp, Jr., jboppjr@aol.com

 Ind. Bar No. 2838-84

Richard E. Coleson, rcoleson@bopplaw.com

 Ind. Bar No. 11527-70

Joseph A. Vanderhulst,

jvanderhulst@bopplaw.com

 Ind. Bar No. 28106-02

BOPP, COLESON & BOSTROM

1 South Sixth Street

Terre Haute, IN 47807-3510

812/232-2434 telephone

812/234-3685 facsimile

Lead Counsel for Plaintiffs
Certificate of Service

I certify that on May 14, 2010, I electronically filed the foregoing document with the clerk of 

court using the CM/ECF system, which will notify the following CM/ECF participants:

David B. Kolker, dkolker@fec.gov

Claire N. Rajan, crajan@fec.gov

Harry J. Summers, hsummers@fec.gov

Federal Election Commission

999 E. Street, NW

Washington, DC 20436

R.A. Renfer, Jr.

U.S. Attorney’s Office

Rm. 800, 310 New Bern Ave.

Raleigh, NC 27601

rudy.renfer@usdoj.gov

Anita S. Earls

Southern Coalition for Social Justice

6 Superior Ct.

Durham, NC 27713

anitaearls@gmail.com

/s/ James Bopp, Jr.

James Bopp, Jr.
1

United States District Court

Eastern District of North Carolina

Northern Division

Holly Lynn Koerber and

Committee for Truth in Politics, Inc.,

Plaintiffs,

v.

Federal Election Commission,

Defendant.

Case No. 2:08-cv-39-H

Amended Complaint for Declaratory and Injunctive Relief

Holly Lynn Koerber and Committee for Truth in Politics, Inc. (“CTP”) complain against the

Federal Election Commission (“FEC”) as follows:

Introduction

1. This is a facial and as-applied challenge to the FEC’s secondary definition of “expressly

advocating” at 2 U.S.C. § 100.22(b). This non-“magic words” definition is challenged as

unconstitutional, facially and as applied to the ads set out herein (“Ads”) and CTP’s materially

similar future ads, and as void for being beyond FEC authority under the Administrative

Procedure Act (“APA”), 5 U.S.C. § 706. See Count I.

2. This is also an as-applied challenge to the constitutionality of § 201 of the Bipartisan

Campaign Reform Act of 2002 (“BCRA”), Pub. L. No. 107-155, 116 Stat. 81, 88-89, titled

“Disclosure of Electioneering Communications,” which added a new subsection “(f)” to § 304 of

the Federal Election Campaign Act (“FECA”) that requires reporting of electioneering

communications and contributors to groups making them. BCRA § 201 is called herein the

“Reporting Requirement” for ease of identification. The Reporting Requirement is codified at 2
2

U.S.C. § 434(f). The Reporting Requirement is challenged as applied to the Ads and materially

similar future ads, see Count II, and as applied to CTP itself, see Count III.

3. This is also a facial and as-applied challenge to FEC’s enforcement policy implementing

the major-purpose test from Buckley v. Valeo, 424 U.S. 1, 79 (1976), for imposing “political

committee” (“PAC”) status under 2 U.S.C. § 431(4). FEC’s policy is set out in two documents.

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

1”); FEC, “Political Committee Status,” 72 Fed. Reg. 5595 (Feb. 7, 2007) (“PAC-Status 2”). The

policy is challenged as unconstitutional, facially and as applied to CTP and its activities, and as

void for being beyond FEC authority under the APA. See Count IV.

4. CTP seeks a judgment from this Court declaring these provisions unconstitutional and (as

to FEC rule and enforcement policy) void under APA as challenged.

5. CTP also seeks permanent injunctive relief enjoining FEC from enforcing the provisions

and enforcement policy as challenged.

Jurisdiction and Venue

6. This Court has jurisdiction over this case pursuant to 28 U.S.C. § 1331 as a case arising

under the First and Fifth Amendments, FECA, the judicial review provisions of the APA, and the

Declaratory Judgment Act, 28 U.S.C. §§ 2201-02.

7. Venue is proper in this Court, pursuant to 28 U.S.C. § 1391(e)(3), because Defendants are

entities of the United States, Holly Lynn Koerber, who wishes to exercise the First Amendment

right to receive information from CTP, resides in Elizabeth City, North Carolina, and CTP

resides in North Carolina and has broadcast its ads in Elizabeth City.
3

Parties

8. CTP is an issue-advocacy, nonstock, nonprofit, North Carolina corporation with its

principal place of business in Cary, North Carolina.

9. Holly Lynn Koerber is a resident of Elizabeth City, North Carolina, one of the places

where CTP has broadcast its issue advocacy, where she has been able to receive the ads described

herein. She wants to continue exercising the First Amendment right to receive CTP’s speech, but

reasonably fears that CTP will be silenced and she will be unable to continue receiving CTP’s

materially-similar ads, all in violation of her First Amendment rights.

10. FEC is the federal government agency with enforcement authority over FECA. Its

headquarters are in Washington, District of Columbia.

Facts

11. CTP was incorporated in September 2008. It is exempt from tax under 26 U.S.C.

§ 501(c)(4) as an organization primarily devoted to social welfare.

12. CTP is not controlled by any candidate and lacks “the major purpose” of “primarily

engag[ing] in regulable, election-related speech,” North Carolina Right to Life v. Leake, 525 F.3d

274, 287 (4th Cir. 2008), so its major purpose is not the “nomination or election of a candidate,”

Buckley, 424 U.S. at 79. 

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

Purpose. The Corporation is organized for the purpose of promoting the social

welfare of the people of North Carolina by: (a) Advocating honesty in

government; (b) Advocating limited government; and (c) Engaging in any and all

lawful activities that are appropriate to carry out and fulfill any or all of the

foregoing purposes.

14. As set out in its Articles of Incorporation, CTP’s prohibited activities are as follows:

Prohibited Activities. Notwithstanding any other provision of these Articles, the
4

Corporation shall not, except to an insubstantial degree, carry on any activities not

permitted to be carried on by an organization exempt from Federal income tax

under Section 501(c)(4) of the Internal Revenue Code of 1986, as amended

(“Code”), or the corresponding provision of any subsequent federal tax laws.

15. CTP broadcast an ad titled Basic Rights on television stations in Wilmington, North

Carolina, that broadcast into Elizabeth City, North Carolina. Basic Rights was broadcast on

stations in Pennsylvania, North Carolina, and Wisconsin on October 2, 2008, and October 3,

2008. CTP briefly aired an ad titled Tragic, but True.

16. The script of Basic Rights is as follows:

VIDEO AUDIO

CG: VOTED AGAINST PROTECTING

INFANTS

CG: NOT ONCE BUT FOUR TIMES;

ILL. SB 1095, 3/27/01; ILL. SB 1662,

3/5/02; ILL. SB 1662, 4/4/02; ILL. SB

1082, 3/12/03

CG: CONGRESS UNANIMOUSLY

SUPPORTED PROTECTIONS

Source: H.R. 2175;Congressional

Record, 7/18/02; Page S. 7084

CG: UPHELD BY SUPREME COURT

Source: Gonzales v. Carhart Et Al.;

4/18/07

CG: BARACK OBAMA COSPONSORED SENATE BILL 1173

Source: S. 1173; Congressional Record;

Introduced 4/19/07; Co-sponsored

5/11/07

CG: CALL SENATOR OBAMA

CG: 202-224-2854

Disclaimer: PAID FOR BY

COMMITTEE FOR TRUTH IN

Announcer: Senator Obama.

Why did you vote against protecting

infants that survived late term

abortions?

Not once, but four times.

Even Congress unanimously supported

protections identical to those you

blocked in Illinois.

The Supreme Court upheld the ban on

partial birth abortions. 

And yet today, you keep working to roll

back this law.

Call Senator Obama. Tell him to stop

trying to overturn these basic human

rights.
5

POLITICS, 102-K COMMONWEALTH

COURT, CARY, NORTH CAROLINA

27511. NOT AUTHORIZED BY ANY

CANDIDATE OR CANDIDATE’S

COMMITTEE.

The Committee for Truth in Politics is

responsible for the content of this

advertising.

17. The Script of Tragic, but True is as follows:

VIDEO AUDIO

CG: TRAGIC. BUT TRUE.

CG: MAJORITY OF SEX CRIMES

ARE COMMITTED AGAINST A

CHILD

Source: U.S. Dept. of Justice, Bureau of

Statistics

CG: EXPLOITS 7 TO 200 VICTIMS

Source: U.S. Dept. of Justice, Bureau of

Statistics

CG: BARACK OBAMA VOTED TO

ALLOW EARLY RELEASE FOR

CONVICTED SEXUAL ABUSERS

Source: ILL. SB 485, 3/11/99

CG: CALL SENATOR OBAMA

CG: 202-224-2854

CG: SUPPORT THE PREVENTION

AND DETERENCE OF CRIMES

AGAINST CHILDREN ACT

CG: INNOCENT LIVES ARE AT

STAKE

Disclaimer: PAID FOR BY

COMMITTEE FOR TRUTH IN

POLITICS, 102-K COMMONWEALTH

COURT, CARY, NORTH CAROLINA

27511. NOT AUTHORIZED BY ANY

CANDIDATE OR CANDIDATE’S

COMMITTEE.

Announcer: It’s tragic, but true.

Two thirds of all prisoners convicted of

rape or sexual assault committed their

crime against a child.

Even worse, the average child predator

exploits seven to two hundred victims

in their lifetime.

In the Illinois Senate, Barack Obama

was the only member that voted to

allow early release for convicted sexual

abusers.

Call Senator Obama.

Tell him to support the Prevention and

Deterrence of Crimes Against Children

Act.

The Committee for Truth in Politics is

responsible for the content of this

advertising.

18. CTP has not, and will not, coordinate the production and broadcast of these Ads or

materially similar future ads with any candidate, campaign committee, political committee, or

political party.
6

19. CTP reasonably fears that its Ads may be found to be express advocacy under 11 C.F.R.

§ 100.22(b). CTP’s tax status and organic documents prohibit it from engaging in express

advocacy. Furthermore, if the ads are express advocacy, they would constitute independent

expenditures, which would require reporting as “independent expenditures” under 2 U.S.C.

§ 434(c)(1), which CTP has not done.

20. The Ads also meet the electioneering communications definition at 2 U.S.C. § 434(f)(3)

and 11 C.F.R. § 100.29—because each was a “broadcast, cable, or satellite communication” that

“[r]efers to a clearly identified candidate for Federal office” and “[i]s publicly distributed within

60 days before a general election for the office sought by the candidate,” id. at § 100.29(a)—

unless they constitute express advocacy, in which case they are excluded from the electioneering

communication definition, id. at 100.29(c)(3).

21. If the Ads are not express advocacy but are electioneering communications, since CTP

spent more than $10,000 in 2008 “for the direct costs of producing and airing” Basic Rights, CTP

was subject to the Reporting Requirement. 2 U.S.C. § 434(f)(1).

22. Under the Reporting Requirement, once CTP reached the $10,000 trigger amount (the

“disclosure date,” id.), it was to have filed the required report “within 24 hours.” Id.

23. CTP reached the $10,000 trigger amount (“disclosure date”) on October 2, 2008, making

its report due on October 3, 2008.

24. CTP has not filed the required report and so is currently in violation of the Reporting

Requirement.

25. CTP reasonably fears that a complaint will be filed against it for noncompliance with the

independent-expenditure reporting requirement or the electioneering-communication Reporting

Requirement, that FEC will initiate an investigation and enforcement action, and that CTP may
7

suffer penalties for noncompliance, all in violation of CTP’s First Amendment rights.

26. CTP also reasonably fears that FEC may deem CTP to be a political committee under

FEC’s vague, overbroad, and unauthorized PAC enforcement policy, in violation of CTP’s First

and Fifth Amendment rights. See PAC-Status 1; PAC-Status 2. The policy employs a vague and

overbroad totality-of-the-circumstances test for determining major purpose instead of the

required “empirical judgment as to whether an organization primarily engages in regulable,

election-related speech,” Leake, 525 F.3d at 287.

27. CTP reasonably fears that a complaint will be filed against it for noncompliance with

FECA’s PAC requirements, that FEC will initiate an investigation and enforcement action, and

that CTP may suffer penalties for noncompliance, all in violation of CTP’s First and Fifth

Amendment rights.

28. CTP intends to continue its issue advocacy by broadcasting ads that are materially

similar to the Ads in that they will contain similar issue advocacy, but will similarly not be

“‘unambiguously related to the campaign of a particular . . . candidate,’” id. at 282 (quoting

Buckley, 424 U.S. at 80) (emphasis added) and will not have an “electioneering nature,” FEC v.

Wisconsin Right to Life, 551 U.S. 449, 470 (2007) (“WRTL-II”).

29. In addition, CTP’s materially similar ads will be consistent with ads described in the

“safe harbor” in FEC’s former regulation, 11 C.F.R. § 114.15, implementing WRTL-II because

they will fit the following criteria:

(1) Does not mention any election, candidacy, political party, opposing

candidate, or voting by the general public;

(2) Does not take a position on any candidate’s or officeholder’s character,

qualifications, or fitness for office; and

(3) Either:

(i) Focuses on a legislative, executive or judicial matter or issue; and

(A) Urges a candidate to take a particular position or action with respect to

the matter or issue, or
1The ad at issue, titled Change, is as follows:

(Woman’s voice) Just what is the real truth about Democrat Barack Obama’s position on abortion?

(Obama-like voice) Change. Here is how I would like to change America . . . about abortion:

• Make taxpayers pay for all 1.2 million abortions performed in America each year

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

• Make partial-birth abortion legal

• Give Planned Parenthood lots more money to support abortion

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

they are born

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

One thing I would not change about America is abortion on demand, for any reason, at any time during

pregnancy, as many times as a woman wants one.

(Woman’s voice). Now you know the real truth about Obama’s position on abortion. Is this the

change that you can believe in?

To learn more realtruthaboutObama, visit www.The RealTruthAboutObama.com. Paid for by The

Real Truth About Obama.

In The Real Truth About Obama, Inc. v. FEC, No. 3:08-cv-483 (E.D. Va.), Change was set out in the

8

(B) Urges the public to adopt a particular position and to contact the

candidate with respect to the matter or issue . . . .

30. CTP is at risk for the irreparable harm of an investigation, an enforcement action, and

possible penalties, and has no adequate remedy at law.

Count I—Express Advocacy

31. CTP and Koerber reallege and incorporate by reference all of the allegations contained in

all of the preceding paragraphs.

32. CTP and Koerber challenge FEC’s secondary definition of “expressly advocating” at 2

U.S.C. § 100.22(b). This non-“magic words” definition is challenged as unconstitutional, facially

and as applied to the Ads and CTP’s materially similar future ads, and as void as beyond

authority under APA. 

33. In the United States District Court for the Eastern District of Virginia, FEC declared a

similar communication was neither express advocacy nor prohibited under WRTL-II, yet the

district court decided it was express advocacy under 11 C.F.R. § 100.22(b).1 Consequently, CTP
complaint, Dkt. 1 at 5-6; FEC said it was neither express advocacy nor a prohibited electioneering

communication, Dkt. 32 at 6; but the Court held it was express advocacy under 11 C.F.R. § 100.22(b),

Dkt. 77 at 13-14 (mem. op. denying prelim. inj.; Sep. 24, 2008) (documents available on PACER).

9

fears its present Ads and materially similar futures ads may also be considered express advocacy

under 11 C.F.R. § 100.22(b).

34. If the Ads were found to be express advocacy under 11 C.F.R. § 100.22(b), CTP also

fears that it would be in violation of 2 U.S.C. § 434(c)(1) and § 441d(a)(3), which require

reporting and identification of independent expenditures, which it has not done, and that the

expenditures would provide the statutory trigger for PAC-status under 2 U.S.C. § 431(4).

35. But the secondary express-advocacy definition at 11 C.F.R. § 100.22(b) is

unconstitutional because the activity does not contain the so-called “magic words,” which are

required for an express-advocacy definition. See, e.g., Citizens United v. FEC, 130 S. Ct. 876,

935 n.8 (2010) (Stevens, J., joined by Ginsburg, Breyer, & Sotomayor, J.J., concurring in part

and dissenting in part).

36. FEC’s secondary express-advocacy definition,11 C.F.R. § 100.22(b), is

unconstitutionally vague and overbroad, in violation of the First and Fifth Amendments, both

facially and as applied to CTP’s present Ads and materially similar future ads, and void as

beyond authority under APA.

Count II—Reporting Requirement Applied to Ads

37. CTP and Koerber reallege and incorporate by reference all of the allegations contained in

all of the preceding paragraphs.

38. CTP and Koerber challenge the constitutionality of the Reporting Requirement at 2

U.S.C. § 434(f) (BCRA § 201) as applied to the Ads and materially similar future ads.

39. Buckley expressly excluded issue advocacy from the required disclosure of
10

“expenditures,” imposing the express-advocacy construction to assure that the reach of the

mandatory disclosure was not “too remote” or “impermissibly broad” and would reach only “that

spending that is unambiguously related to the campaign of a particular federal candidate.” 424

U.S. at 80.

40. While Citizens United, 130 S. Ct. 876 (2010), upheld the Reporting Requirement as

applied to a movie that the Court held to be the functional equivalent of express advocacy and as

applied to “pejorative” ads soliciting a commercial transaction, id. at 887, 915, it did not consider

an as-applied challenge to genuine issue ads, such as CTP’s Ads, which are protected from

disclosure by Buckley.

41. CTP’s Ads are genuine issue ads because they are not pejorative; do not mention an

election, candidacy, political party, or challenger; do not take a position on a candidate’s

character, qualifications, or fitness for office; and do not emphasize the relevance of the

information presented to the public official’s candidacy. WRTL-II, 551 U.S. at 470; Citizens

United, 130 S. Ct. at 887, 890, 915-16. The content of the Ads is entirely indifferent to the fact

that the public official happens to be a candidate. Rather, the Ads focus on a legislative issue,

take a position on that issue, inform the public of the positions of a public official on that issue,

and urge the public to contact that public official with respect to the matter. WRTL-II, 551 U.S. at

470.

42. The Reporting Requirement is unconstitutional, in violation of the First Amendment

rights to free expression and association, as applied to CTP’s Ads and materially-similar future

ads.

Count III—Reporting Requirement Applied to CTP

43. CTP and Koerber reallege and incorporate by reference all of the allegations contained in
11

all of the preceding paragraphs.

44. As applied to CTP itself, the Reporting Requirement is unconstitutional under Buckley’s

blanket reporting exemption for groups that can “show . . . a reasonable probability that the

compelled disclosure of a party’s contributors’ names will subject them to threats, harassment, or

reprisals from either Government officials or private parties.” 424 U.S. at 74.

45. The Reporting Requirement is unconstitutional, in violation of First Amendment rights

to free expression and association, as applied to CTP.

Count IV—PAC Enforcement Policy

46. CTP and Koerber reallege and incorporate by reference all of the allegations contained in

all of the preceding paragraphs.

47. FEC’s enforcement policy regarding PAC status is set out in two FEC policy statements:

PAC-Status 1 and PAC-Status 2. FEC’s interpretation of the major-purpose test is a central

element of FEC’s PAC status enforcement policy. In PAC-Status 2, FEC explained that, after

having initiated a rulemaking proceeding, it declined to adopt a rule for the major-purpose test,

declaring that “the major purpose doctrine . . . requires the flexibility of a case-by-case analysis

of an organization’s conduct.” Id. PAC-Status 2, 72 Fed. Reg. at 5601. Instead, it set out its

vague and overbroad enforcement policy regulating major purpose, requiring FEC to engage in

“a fact intensive inquiry,” in order to weigh various vague and overbroad factors with

undisclosed weight, requiring “investigations into the conduct of specific organizations that may

reach well beyond publicly available statements,” including all an organization’s “spending on

Federal campaign activity” (but not limited to spending on regulable activity) and other spending,

and public and non-public statements, including statements to potential donors. Id.

48. PAC-Status 2 identified the “major purpose” at issue in its major-purpose test as being
12

“Federal campaign activity,” id. at 5605 (emphasis added), not the narrower “nomination or

election of a candidate,” which Buckley required as “the major purpose.” 424 U.S. at 79

(emphasis added). While MCFL used “campaign advocacy,” 479 U.S. at 252 (plurality opinion)

(emphasis added), to “further the election of candidates,” id. at 253 (plurality opinion) (emphasis

added), and “campaign activity,” id. at 262 (majority opinion), when speaking of the purpose at

issue in the major-purpose test, it did so solely as synonyms for Buckley’s “nomination or

election” requirement, which it cited and quoted, id. at 252 n.6 (citing Buckley, 424 U.S. at 79).

There is no authority for FEC’s reformulation of the major-purpose test to focus on “Federal

campaign activity.”

49. PAC-Status 2 also indicated that FEC would consider other factors in its ad hoc, totalityof-the-circumstances, major-purpose test when it discussed its application of the policy to some

527 organizations in previous investigations. PAC Status 2, 72 Fed. Reg. at 5603-04. These

included the fact that an entity spent much of its money “on advertisements directed to

Presidential battleground States and direct mail attacking or expressly advocating,” id. at 5605

(emphasis added), the fact that groups ceased activity after an election, id., and the fact that they

did not make disbursements in state and local races, id. In addition, FEC thought that it could

determine a 527 groups major purpose from internal planning documents and budgets, id., which

would normally be protected by First Amendment privacy concerns and were only obtained

because the organization was subjected to a burdensome, intrusive investigation. Major purpose

was even based on a private thank-you letter to a donor, after the donation had already been

made. Id.

50. PAC-Status 2, therefore, sets out an enforcement policy based on an ad hoc, case-bycase, analysis of vague and impermissible factors applied to undefined facts derived through
13

broad-ranging, intrusive, and burdensome investigations, often begun when a complaint is filed

by a political or ideological rival, that, in themselves, can shut down an organization, without

adequate bright lines to protect issue advocacy in this core First Amendment area.

51. Under the major-purpose test set out in Buckley, 424 U.S. at 79, however, PAC status

may be determined by either an entity’s expenditures, MCFL, 479 U.S. at U.S. at 262 (major

purpose calculation looks at express-advocacy independent expenditures in relation to total

expenditures: “should MCFL’s independent spending become so extensive that the

organization’s major purpose may be regarded as campaign activity, the corporation would be

classified as a political committee”); Leake, 525 F.3d at 287 (“an empirical judgment as to

whether an organization primarily engages in regulable, election-related speech”), or by the

organization’s central purpose revealed in its organic documents, MCFL, 249 U.S. at 252 n.6

(“[O]n this record . . . MCFL[’s] . . . central organizational purpose is issue advocacy.”). Thus,

the first test for major purpose requires a comparison of the entity’s total disbursements for a year

with its unambiguously campaign related and regulable expenditures, so that only the amount of

true political “contributions” and “expenditures” would be counted. The second test requires an

examination of the entity’s organic documents to determine if there was an express intention to

operate as a political committee, e.g., by being designated as a “separate segregated fund” (an

internal “PAC”) under 2 U.S.C. § 441b(2)(c). Because Buckley’s and MCFL’s major-purpose test

is an authoritative construction of the definition of “political committee,” and a constitutional

limit on the application of the political committee requirements of FECA, FEC’s enforcement

policy that does not comply with this construction is beyond FEC’s statutory authority.

52. In Citizens United, the Supreme Court confirmed that PAC status is burdensome and

subject to strict scrutiny. Citizens United, 130 S. Ct. at 897-98. PACs must comply with onerous
14

requirements just to speak, id. at 897, so that PAC status functions as the equivalent of prior

restraint, id. at 896. FEC’s enforcement policy is unconstitutional as applied to CTP because

imposing PAC status on such an entity is not narrowly tailored to preventing quid pro quo

corruption.

53. Because FEC’s PAC-status enforcement policy goes beyond any permissible

construction of the major-purpose test, employs invalid regulations to determine whether the

entity received a “contribution” or made an “expenditure,” is unconstitutionally vague and

overboad, and is “in excess of the statutory . . . authority . . .” of FEC, it is unconstitutional, in

violation of the First and Fifth Amendments, and is void under 5 U.S.C. § 706.

PRAYER FOR RELIEF

Wherefore, CTP prays for the following relief:

1. A declaratory judgment that FEC’s secondary “expressly advocating” definition, 11

C.F.R. § 100.22(b), is unconstitutional and void under APA, both facially and as applied to

CTP’s Ads and materially similar future ads;

2. A declaratory judgment that the Reporting Requirement, 2 U.S.C. § 434(f), is

unconstitutional as applied to CTP’s Ads and materially similar future ads;

3. A declaratory judgment that the Reporting Requirement is unconstitutional as applied to

CTP;

4. A declaratory judgment that FEC’s PAC-status enforcement policy is unconstitutional and

void under APA, both facially and as applied to CTP;

5. A permanent injunction enjoining FEC from enforcing these provisions and enforcement

policy as challenged;

6. Costs and attorneys fees pursuant to any applicable statute or authority; and
7. Any other relief this Court in its discretion deems just and appropriate.

Dated May 14, 2010

/s/ Paul Stam

Paul Stam, paulstam@bellsouth.net

State Bar No. 6865

STAM & DANCHI, PLLC

P.O. Box 1600

510 W. Williams Street

Apex, NC 27502

919/362-8873 telephone

919/387-7329 facsimile

Local Counsel for Plaintiffs

Respectfully submitted,

/s/ James Bopp, Jr.

James Bopp, Jr., jboppjr@aol.com

 Ind. Bar No. 2838-84

Richard E. Coleson, rcoleson@bopplaw.com

 Ind. Bar No. 11527-70

Joseph A. Vanderhulst,

jvanderhulst@bopplaw.com

 Ind. Bar No. 28106-02

BOPP, COLESON & BOSTROM

1 South Sixth Street

Terre Haute, IN 47807-3510

812/232-2434 telephone

812/234-3685 facsimile

Lead Counsel for Plaintiffs

Certificate of Service
I certify that on May 14, 2010, I electronically filed the foregoing document with the clerk of 

court using the CM/ECF system, which will notify the following CM/ECF participants:

David B. Kolker, dkolker@fec.gov

Claire N. Rajan, crajan@fec.gov

Harry J. Summers, hsummers@fec.gov

Federal Election Commission

999 E. Street, NW

Washington, DC 20436

R.A. Renfer, Jr.

U.S. Attorney’s Office

Rm. 800, 310 New Bern Ave.

Raleigh, NC 27601

rudy.renfer@usdoj.gov

Anita S. Earls

Southern Coalition for Social Justice

6 Superior Ct.

Durham, NC 27713

anitaearls@gmail.com

/s/ James Bopp, Jr.

James Bopp, Jr.