No. 08-1977 

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 

THOMASENIA P. DUNCAN 

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 

GREGORY G. KATSAS 

Assistant Attorney General 

DANA J. BOENTE 

Acting United States Attorney 

MICHAEL S. RAAB 

ERIC FLEISIG-GREENE 

Attorneys, Appellate Staff 

Civil Division, Room 7214 

U.S. Department of Justice 

950 Pennsylvania Ave., N.W. 

Washington, DC 20530-0001 

October 28, 2008
i

TABLE OF CONTENTS 

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

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

STATEMENT OF THE CASE..................................................................................1 

STATEMENT OF FACTS ........................................................................................2 

I. STATUTORY AND REGULATORY BACKGROUND ..............................2 

 A. Contributions and Expenditures............................................................2 

 B. Express Advocacy .................................................................................3 

 C. Political Committee Status....................................................................4 

 D. Contributions in Response to Solicitations ...........................................5 

 E. Corporation-Funded Electioneering Communications .........................6 

II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY..................7 

SUMMARY OF THE ARGUMENT ......................................................................11 

ARGUMENT ...........................................................................................................13 

I. STANDARD OF REVIEW...........................................................................13 

II. RTAO CANNOT DEMONSTRATE IRREPARABLE HARM ..................14 

III. RTAO CANNOT DEMONSTRATE THAT IT IS LIKELY TO 

SUCCEED ON THE MERITS OF ITS CLAIMS ........................................18 

 A. The Definition of Express Advocacy at 11 C.F.R. § 100.22(b) 

Is Constitutional ..................................................................................19 

 B. RTAO’s Challenge to the Solicitation Regulation at 

11 C.F.R. § 100.57 Is Not Justiciable, and the Regulation 

Is Constitutional ..................................................................................31 
ii

 C. The Commission’s Explanation Regarding Its Determination 

of Political Committee Status Is Not Subject to APA Review; 

In Any Event, the Explanation Is Constitutional ................................37 

 D. The Regulation Regarding Corporation-Funded Electioneering 

Communications at 11 C.F.R. § 114.15 Is Constitutional ..................41 

IV. THE PUBLIC INTEREST AND THE BALANCE OF HARMS 

WEIGH AGAINST THE ISSUANCE OF A PRELIMINARY 

INJUNCTION................................................................................................47 

CONCLUSION........................................................................................................48 
iii

TABLE OF AUTHORITIES 

Cases 

ACLU of Nevada v. Heller, 378 F.3d 979 (9th Cir. 2004).......................................36 

Anderson v. Spear, 356 F.3d 651 (6th Cir. 2004)....................................................36 

Bennett v. Spear, 520 U.S. 154 (1997) ....................................................................38 

Blackwelder Furniture Co. of Statesville, Inc. v. Seilig Mfg. Co., 

550 F.2d 189 (4th Cir. 1977) .........................................................................14 

Brown v. Socialist Workers ’74 Campaign Comm., 459 U.S. 87 (1982) ................17

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

Cal. Med. Ass’n v. FEC, 453 U.S. 182 (1981).........................................................33 

Center for Individual Freedom v. Carmouche, 449 F.3d 655 (5th Cir. 2006) ........36 

Center for Individual Freedom, Inc. v. Ireland, Civ. No. 1:08-190, 

2008 WL 1837324 (S.D. W. Va. Apr. 22, 2008) ..........................................18 

Chaplaincy of Full Gospel Churches v. England, 

454 F.3d 290 (D.C. Cir. 2006)................................................................. 16-17 

Christian Knights of the Ku Klux Klan Invisible Empire, Inc. v. District of 

Columbia, 919 F.2d 148 (D.C. Cir. 1990).....................................................15 

Citizens United v. FEC, 530 F. Supp. 2d 274 (D.D.C. 2008)..................................17 

Cole v. Richardson, 405 U.S. 676 (1972)................................................................37 

Cramp v. Bd. of Pub. Instr. of Orange County, 368 U.S. 278 (1961) .....................37 

Dan River, Inc. v. Icahn, 701 F.2d 278 (4th Cir. 1983)...........................................18 

Direx Israel, Ltd. v. Breakthrough Med. Corp., 952 F.2d 802 (4th Cir. 1991).......14 

Elrod v. Burns, 427 U.S. 347 (1976) .......................................................................14 
iv

EMILY’s List v. FEC, 569 F. Supp. 2d 18 (D.D.C. 2008).......................................34 

EMILY’s List v. FEC, 362 F. Supp. 2d 43 (D.D.C. 2005), 

aff’d, 2005 WL 3804998 (D.C. Cir. 2005)....................................................34 

FEC v. Christian Action Network, Inc., 110 F.3d 1049 (4th Cir. 1997) ........... 21-22 

FEC v. Furgatch, 807 F.2d 857 (9th Cir. 1987) ......................................................22 

FEC v. GOPAC, Inc., 917 F. Supp. 851 (D.D.C. 1996)..........................................39 

FEC v. Malenick, 310 F. Supp. 2d 230 (D.D.C. 2004)............................................39 

FEC v. Nat’l Conservative Political Action Comm., 470 U.S. 480 (1985) .............15 

FEC v. Survival Educ. Fund, Inc., 65 F.3d 285 (2d Cir. 1995)...............................33 

FEC v. Wisconsin Right to Life, Inc., 127 S. Ct. 2652 (2007) (“WRTL”) ....... passim 

Florida v. Jimeno, 500 U.S. 248 (1991) ..................................................................23 

Flue-Cured Tobacco Coop. Stabilization Corp. v. EPA, 

313 F.3d 852 (4th Cir. 2002) .........................................................................38 

Grayned v. City of Rockford, 408 U.S. 104 (1972) .................................................19 

In re Microsoft Corp. Antitrust Litig., 333 F.3d 517 (4th Cir. 2003) ......................13 

Invention Submission Corp. v. Rogan, 357 F.3d 452 (4th Cir. 2004) .....................38 

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

MicroStrategy Inc. v. Motorola, Inc., 245 F.3d 335 (4th Cir. 2001).......................13 

New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 434 U.S. 1345 (1977)..........47 

North Carolina Right to Life, Inc. v. Bartlett, 168 F.3d 705 (4th Cir. 1999) .... 35-36 

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

Ohio Right to Life Soc., Inc. v. Ohio Elections Comm’n, No. 08-492, 

2008 WL 4186312 (S.D. Ohio Sept. 5, 2008)...............................................18 
v

Purcell v. Gonzalez, 549 U.S. 1 (2006) .............................................................13, 48 

Renne v. Geary, 501 U.S. 312 (1991)......................................................................31 

Sampson v. Murray, 415 U.S. 61 (1974) .................................................................18 

Scotts Co. v. United Indus. Corp., 315 F.3d 264 (4th Cir. 2002) ......................14, 18 

Shays v. FEC, 511 F. Supp. 2d 19 (D.D.C. 2007)...................................................38 

Smith v. Frye, 488 F.3d 263 (4th Cir. 2007), 

cert. denied, 128 S. Ct. 653 (2007)................................................................14 

U.S. Dep’t of Labor v. Wolf Run Mining Co., 452 F.3d 275 (4th Cir. 2006) ..........13 

United States v. M/V Sanctuary, 540 F.3d 295 (4th Cir. 2008)...............................14 

United States v. Salerno, 481 U.S. 739 (1987)........................................................19 

Univ. of Tex. v. Camenisch, 451 U.S. 390 (1981) ...................................................13 

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

263 F.3d 379 (4th Cir. 2001) (“VSHL”) .................................................. 21-23 

Virginia v. Hicks, 539 U.S. 113 (2003) ...................................................................19 

Voters Educ. Comm. v. Wash. State Pub. Disclosure Comm’n, 

166 P.3d 1174 (Wash. 2007), cert. denied, 128 S. Ct. 2898 (2008) .............34 

Walters v. Nat’l Ass’n of Radiation Survivors, 468 U.S. 1323 (1984)....................47 

Wash. State Grange v. Wash. State Republican Party, 128 S. Ct. 1184 (2008)......18 

Wyatt v. Cole, 504 U.S. 158 (1992).........................................................................23 

Statutes and Regulations 

2 U.S.C. § 431(4)(A)..................................................................................................4 

2 U.S.C. § 431(4)(B)................................................................................................40 

2 U.S.C. § 431(8)(A)(i)..........................................................................................2, 5 
vi

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

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

2 U.S.C. § 433......................................................................................................4, 17 

2 U.S.C. § 434......................................................................................................5, 17 

2 U.S.C. § 434(f)(3)(A)(i)....................................................................................6, 41 

2 U.S.C. § 434(f)(3)(A)(ii).......................................................................................21 

2 U.S.C. § 437c(b)(1).................................................................................................7 

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

2 U.S.C. § 437d(a)(8).................................................................................................7 

2 U.S.C. § 437f...........................................................................................................7 

2 U.S.C. § 437f(a) ....................................................................................................30 

2 U.S.C. § 437f(a)(1) ...............................................................................................30 

2 U.S.C. § 437g..........................................................................................................7 

2 U.S.C. § 437g(d) .....................................................................................................7 

2 U.S.C. § 441a(a)(1)(C)......................................................................................5, 16 

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

2 U.S.C. § 441b(b)(2)...........................................................................................6, 41 

5 U.S.C. § 704..........................................................................................................38 

28 U.S.C. § 1292(a)(1)...............................................................................................1 

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

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

Pub. L. No. 107-115 .......................................................................... 20-21, 26 

 BCRA § 201(a), 116 Stat. 89.........................................................................21 

Federal Election Campaign Act of 1971 (“FECA”), 2 U.S.C. §§ 431-55....... passim 

Federal Election Campaign Act Amendments of 1976, Pub. L. No. 94-283 ............3 

11 C.F.R. § 100.22 ........................................................................................... passim

11 C.F.R. § 100.22(a).................................................................................................3 

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

11 C.F.R. § 100.22(b)(1)......................................................................................1, 23 

11 C.F.R. § 100.57 ........................................................................................... passim 

11 C.F.R. § 100.57(a).................................................................................................6 

11 C.F.R. § 114.12 ...................................................................................................15 

11 C.F.R. § 114.12(a).................................................................................................3 

11 C.F.R. § 114.15 ........................................................................................... passim 

11 C.F.R. § 114.15(a)......................................................................................... 42-45 

11 C.F.R. § 114.15(b) ..............................................................................................43 

11 C.F.R. § 114.15(c)......................................................................................... 43-45 

11 C.F.R. § 114.15(c)(3)..........................................................................................43 

11 C.F.R. § 114.15(d) ..............................................................................................45 

Administrative Materials 

Electioneering Communications, 72 Fed. Reg. 72,899 (Dec. 26, 2007)........... 42-44 
viii

Express Advocacy; Independent Expenditures; Corporate and Labor 

Organization Expenditures, 60 Fed. Reg. 35,292 (July 6, 1995)............ 22-23 

FEC Advisory Opinion 2006-16..............................................................................30 

FEC Advisory Opinion 2007-03..............................................................................30 

FEC Advisory Opinion 2008-09..............................................................................31 

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

Political Committee Status, Definition of Contribution, and Allocation 

for Separate Segregated Funds and Nonconnected Committees, 

69 Fed. Reg. 68,056 (Nov. 23, 2004) .............................................................6 

Press Release, FEC Releases Draft Advisory Opinion Under Expedited 

Process (May 4, 2006)...................................................................................31 
1

JURISDICTIONAL STATEMENT 

The district court had jurisdiction over this action pursuant to 28 U.S.C. 

§ 1331. This Court has jurisdiction pursuant to 28 U.S.C. § 1292(a)(1) over the 

interlocutory appeal of the district court’s denial of two preliminary injunction 

motions. The district court denied these motions by order dated September 11, 

2008 (J.A. 94-95), and by opinion dated September 24, 2008 (J.A. 98-128). A 

notice of appeal was filed on September 12, 2008. (J.A. 96-97.) 

ISSUES PRESENTED 

Whether the district court abused its discretion in declining to preliminarily 

enjoin the Federal Election Commission (“Commission”) and the Department of 

Justice from enforcing, both facially and as applied to specific activities: 

(1) a Commission regulation defining the statutory term “expressly advocating,” 

11 C.F.R. § 100.22(b); (2) a Commission regulation regarding contributions 

received in response to solicitations, 11 C.F.R. § 100.57; (3) a Commission policy 

statement regarding analysis of political committee status; and (4) a Commission 

regulation regarding corporation-funded “electioneering communications,” 

11 C.F.R. § 114.15. 

STATEMENT OF THE CASE 

This case presents facial and as-applied challenges to three regulations 

governing federal campaign activity, as well as to a Commission policy statement 
2

related to such activity. At the height of the nationwide general election campaign, 

appellant The Real Truth About Obama, Inc. (“RTAO”) requested that the district 

court preliminarily enjoin the Commission and the Department of Justice from 

enforcing these provisions on their face and as applied to RTAO. The district court 

denied RTAO’s preliminary injunction motions, holding that RTAO was unlikely 

to prevail on the merits of its challenges and that the harm that the public and the 

Commission were likely to incur under an injunction outweighed RTAO’s 

unsupported assertion of injury to itself. 

RTAO timely appealed and sought an injunction pending appeal and an 

expedited briefing schedule. This Court denied both requests for relief on October 

1, 2008. 

STATEMENT OF FACTS 

I. STATUTORY AND REGULATORY BACKGROUND 

A. Contributions and Expenditures 

 Under the Federal Election Campaign Act of 1971, as amended (“FECA” or 

“Act”), 2 U.S.C. §§ 431-55, “contribution” is defined to include giving anything of 

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

§ 431(8)(A)(i). Similarly, “expenditure” is defined 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). FECA generally prohibits corporations and labor unions 
3

from making any contribution or expenditure. 2 U.S.C. § 441b(a). This 

prohibition does not apply to a corporation that qualifies as a “political 

committee.” See 11 C.F.R. § 114.12(a); infra pp. 4-5. 

B. Express Advocacy 

 In Buckley v. Valeo, 424 U.S. 1, 41 (1976), the Supreme Court reviewed 

FECA’s original prohibition on expenditures of more than $1,000 “relative to” a 

federal candidate. The Court found the provision unconstitutionally vague 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.” Id. at 44. Congress then defined “independent expenditure” to mean an 

independent communication “expressly advocating the election or defeat of a 

clearly identified candidate.” 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)). 

 The Commission later promulgated a regulatory definition of the term 

“expressly advocating.” 11 C.F.R. § 100.22. Part (a) of the regulatory definition 

encompasses communications that use phrases or campaign slogans “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). Part (b) defines express advocacy as a 

communication that has an unambiguous “electoral portion” that cannot reasonably 
4

be construed as anything other than an encouragement to elect or defeat a 

candidate. 11 C.F.R. § 100.22(b). 

Citing Buckley, a number of courts had held that a limited, “magic words” 

interpretation of “expressly advocating” was the outer constitutional boundary of 

Congress’s power to regulate campaign expenditures. See infra pp. 21-26. In 

McConnell v. FEC, 540 U.S. 93, 191-92 (2003), however, the Supreme Court held 

that Buckley’s express advocacy construction was imposed because of the 

vagueness of FECA’s original statutory text, not because the government’s power 

was in all cases circumscribed to regulating only a limited number of “magic 

words” of advocacy. Congress may regulate not only express advocacy, the Court 

held, but also the “functional equivalent of express advocacy,” id. at 206; see also

FEC v. Wisconsin Right to Life, Inc. (“WRTL”), 127 S. Ct. 2652, 2667 (2007) 

(same). 

C. Political Committee Status 

 FECA provides that any “committee, club, association, or other group of 

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

expenditures in a calendar year is a “political committee.” 2 U.S.C. § 431(4)(A). 

Political committees must register with the Commission and file periodic reports 

for disclosure to the public of all their receipts and disbursements, with limited 

exceptions for most transactions below a $200 threshold. See 2 U.S.C. §§ 433, 
5

434. No person may contribute more than $5,000 per calendar year to any one 

political committee. 2 U.S.C. § 441a(a)(1)(C). 

 In Buckley, 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 political committee requirements by 

reaching “groups engaged purely in issue discussion.” 424 U.S. at 79. The Court 

therefore concluded that the Act’s political committee provisions “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, a non-candidate-controlled entity must register as a political 

committee — thereby becoming subject to limits on the sources and amounts of its 

contributions received — only if the entity crosses the $1,000 threshold of 

contributions or expenditures and its “major purpose” is the nomination or election 

of federal candidates. 

D. Contributions in Response to Solicitations 

 FECA does not provide specific guidance as to when a donation is made “for 

the purpose of influencing any election” and thus constitutes a “contribution” for 

purposes of the $1,000 political committee threshold. 2 U.S.C. § 431(8)(A)(i). By 

regulation, the Commission has defined “contribution” to include a “deposit of 

money . . . made by any person in response to any communication . . . if the 
6

communication indicates that any portion of the funds received will be used to 

support or oppose the election of a clearly identified Federal candidate.” 11 C.F.R. 

§ 100.57(a); Political Committee Status, Definition of Contribution, and Allocation 

for Separate Segregated Funds and Nonconnected Committees, 69 Fed. Reg. 

68,056, 68,057 (Nov. 23, 2004). 

E. Corporation-Funded Electioneering Communications 

 FECA prohibits corporations (other than incorporated political committees) 

and unions from making any “direct or indirect payment . . . for any applicable 

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

campaign as a “broadcast, cable, or satellite communication” that (a) refers to a 

clearly identified presidential candidate, and (b) is made within sixty days before a 

general election or thirty days before a primary or convention. 2 U.S.C. 

§§ 441b(b)(2), 434(f)(3)(A)(i). 

 The Supreme Court has upheld the constitutionality of this financing 

restriction for non-express advocacy “to the extent that the issue ads . . . are the 

functional equivalent of express advocacy.” McConnell, 540 U.S. at 189-94, 

203-08; WRTL, 127 S. Ct. at 2667. Chief Justice Roberts’ controlling opinion in 

WRTL 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 a specific candidate.” 127 S. Ct. at 2667. Shortly 
7

after WRTL was decided, the Commission promulgated a regulation to codify the 

Court’s controlling opinion. See 11 C.F.R. § 114.15. 

II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY 

The Commission is the independent agency of the United States government 

with exclusive civil jurisdiction to administer, interpret, and enforce 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 against 

violations of the Act. 2 U.S.C. § 437g. The Department of Justice prosecutes 

criminal violations of the Act. See 2 U.S.C. § 437g(d).1

 

RTAO is a nonprofit Virginia corporation. (J.A. 12.) RTAO was 

incorporated on July 24, 2008, six days before it filed its complaint. (J.A. 45-47.) 

On July 29, RTAO filed a notice of section 527 status with the Internal Revenue 

Service. (J.A. 49-50.) RTAO alleges that it has developed two radio 

advertisements, entitled Change and Survivors. (J.A. 15-16, 92-93.) Change

purports to provide “the real truth about Democrat Barack Obama’s position on 

abortion,” using an “Obama-like voice.” (J.A. 15-16.) That voice states, in a first-

 

1

 Because each of the regulations and policies at issue in this case was 

promulgated by the Commission, we refer exclusively to the Commission in the 

remainder of this brief. 
8

person declaration, that 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,” inter alia. (Id.) Near the end of the ad, a 

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

abortion. Is this the change that you can believe in?” (Id.) Survivors states that 

Senator Obama “has been lying” about his voting history regarding abortion, 

thereby demonstrating “callousness” and “a lack of character and compassion that 

should give everyone pause.” (J.A. 92-93.) RTAO allegedly intends to broadcast 

these ads on the radio “in heartland states” during the sixty-day period preceding 

the 2008 general election (J.A. 16, 93), but RTAO does not allege that it has taken 

any concrete steps towards creating or distributing the ads. RTAO alleges that it 

intends to raise more than $1,000 and to spend more than $1,000 to broadcast the 

ads (see J.A. 17), but it does not provide evidence that it has raised or spent any 

money in relation to its advertising, or that it has identified any potential donors or 

specific donations that it would like to accept to fund its activities. RTAO has 

written one fundraising communication that it alleges it intends to use to raise 

money (J.A. 16-17), but it does not allege that it has ever sent such a letter to any 

potential contributor. RTAO alleges that it is creating a website that will contain 

“accurate statements about [Obama’s] public policy positions” (J.A. 15), but the 

website is not active. 
9

On July 30, 2008, RTAO filed its complaint and a motion for a preliminary 

injunction challenging the Commission’s regulations and policy as unconstitutional 

on their face and as applied to Change. On August 20, RTAO filed a second 

motion for a preliminary injunction, which sought to enjoin the Commission’s 

enforcement of its regulations against Survivors. The district court denied those 

injunctions on September 11 (J.A. 94-95), and issued its memorandum opinion on 

September 24 (J.A. 98-128). 

The district court held that RTAO failed to meet any of the requirements for 

preliminary injunctive relief. As to RTAO’s likelihood of success on the merits, 

the district court found that RTAO was unlikely to prevail on any of its claims. 

First, the court held that the Commission’s definition of express advocacy, 11 

C.F.R. § 100.22(b), is “virtually the same test stated by [the controlling opinion] of 

WRTL,” and therefore neither overbroad nor unconstitutionally vague. (J.A. 118.) 

Second, the district court held that the Commission’s regulation governing 

solicitations that “support or oppose” a candidate, 11 C.F.R. § 100.57, is 

permissible because “the case law and Supreme Court precedent make it clear that 

the use of ‘support or oppose’ is not unconstitutionally vague.” (J.A. 121.) Third, 

the district court rejected RTAO’s claims of overbreadth regarding the 

Commission’s analysis of political committee status “[b]ecause the FEC . . . 

employs the same factors the Supreme Court has approved” for such analysis. 
10

(J.A. 123.) Finally, the district court held that RTAO was unlikely to succeed in its 

challenge to the Commission’s regulation regarding corporation-funded 

electioneering communications, finding that “the FEC’s regulation simply adopted 

the test enumerated in WRTL.” (J.A. 124-25.) 

In addition, the district court held that RTAO failed to establish any 

irreparable harm warranting an injunction. Even if RTAO were deemed to be a 

political committee under the regulations it challenged, the court reasoned, those 

regulations left RTAO “free to disseminate their message and make any 

expenditures they wish.” (J.A. 126.) The “only limitation” created by the 

regulations was FECA’s “constitutionally permitted restrictions” on individuals’ 

contributions to RTAO, which the court held insufficient to constitute irreparable 

harm. (J.A. 126-27.) 

Finally, the court held that the balance of harms and the public interest 

weighed in favor of denying injunctive relief, as the Commission would be harmed 

if it were enjoined from enforcing its presumptively valid regulations, and the 

public would be harmed if “the next two months of election law and enforcement 

. . . bec[ame] a ‘wild west’ of electioneering communication and contributions 

without the challenged regulations in place.” (J.A. 127.) Thus finding against 

RTAO on each element of the relevant analysis, the district court denied RTAO’s 

preliminary injunction motions. (J.A. 95.) 
11

RTAO filed its notice of appeal on September 12, 2008, and moved the 

district court to enjoin the Commission from enforcing the challenged regulations 

and policy during the pendency of this appeal. The district court denied RTAO’s 

motion on September 30, 2008. RTAO moved this Court for an injunction pending 

appeal, as well as to expedite consideration of the appeal. This Court denied both 

motions by order dated October 1, 2008. 

SUMMARY OF THE ARGUMENT 

RTAO cannot establish an entitlement to preliminary injunctive relief, and 

the district court did not abuse its discretion in so holding. The requested 

injunction is without basis in law, disserves the public interest, and is unsupported 

by any irreparable harm to RTAO. 

RTAO faces no irreparable harm as a result of the regulations it has 

challenged. RTAO contends that those regulations would qualify the organization 

as a political committee. But even if this were true, RTAO — like all political 

committees — would be able to engage in unlimited, unrestricted speech, including 

all of the communications it purports to wish to broadcast. As a political 

committee, there would be no limit on RTAO’s ability to broadcast Change, 

Survivors, or any other election-related advertising. Furthermore, RTAO cannot 

demonstrate any irreparable harm arising from the contribution limits applicable to 

political committees, for RTAO has provided no evidence regarding its ability or 
12

desire to solicit funds in excess of the applicable $5,000 per person contribution 

limit. Nor would the political committee disclosure requirements cause RTAO any 

irreparable harm. In contrast, the Commission and the public would be 

substantially harmed if the Commission were enjoined during the immediate preelection period from enforcing regulations that provide critical information to the 

public and prevent actual and apparent corruption. 

RTAO also cannot demonstrate a likelihood of success on the merits of its 

case. First, the Commission’s express advocacy regulation is entirely consistent 

with McConnell’s interpretation of Buckley’s express advocacy test, and it is 

highly similar to the test endorsed by the WRTL Court. Second, the Commission’s 

solicitation regulation relies on a “support or oppose” standard that has uniformly 

been upheld by the Supreme Court and other courts nationwide. Third, the 

Commission’s policy statement regarding political committee status is neither 

subject to judicial review nor inconsistent with the Supreme Court decisions it 

implements regarding the “major purpose” test. Finally, the Commission’s 

regulation governing corporation-funded electioneering communications is derived 

exclusively and faithfully from WRTL itself. 
13

ARGUMENT 

I. STANDARD OF REVIEW 

This Court “review[s] the grant or denial of a preliminary injunction for 

abuse of discretion, recognizing that preliminary injunctions are extraordinary 

remedies involving the exercise of very far-reaching power to be granted only 

sparingly and in limited circumstances.” MicroStrategy Inc. v. Motorola, Inc., 245 

F.3d 335, 339 (4th Cir. 2001) (quotation marks omitted); In re Microsoft Corp. 

Antitrust Litig., 333 F.3d 517, 524 (4th Cir. 2003) (quoting MicroStrategy); see 

also Purcell v. Gonzalez, 549 U.S. 1, 7 (2006) (per curiam) (vacating circuit 

court’s reversal of denial of pre-election preliminary injunction on grounds that 

“[i]t was . . . necessary, as a procedural matter, for the Court of Appeals to give 

deference to the discretion of the District Court. We find no indication that it did 

so, and we conclude this was error.”). The purpose of a preliminary injunction “is 

merely to preserve the relative positions of the parties until a trial on the merits can 

be held.” Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981). 

The Court assesses the grant or denial of a preliminary injunction under four 

factors: “(1) the likelihood of irreparable harm to the plaintiff if the preliminary 

injunction is denied; (2) the likelihood of harm to the defendant if the requested 

relief is granted; (3) the likelihood that the plaintiff will succeed on the merits; and 

(4) the public interest.” U.S. Dep’t of Labor v. Wolf Run Mining Co., 452 F.3d 
14

275, 280 (4th Cir. 2006) (citing Blackwelder Furniture Co. of Statesville, Inc. v. 

Seilig Mfg. Co., 550 F.2d 189, 193-94 (4th Cir. 1977)); see also United States v. 

M/V Sanctuary, 540 F.3d 295, 302 (4th Cir. 2008). RTAO bears the burden of 

proving that each factor supports the granting of such relief. See Direx Israel, Ltd. 

v. Breakthrough Med. Corp., 952 F.2d 802, 812 (4th Cir. 1991). In applying the 

factors, “the court must first determine whether the plaintiff has made a strong 

showing of irreparable harm if the injunction is denied; if such a showing is made, 

the court must then balance the likelihood of harm to the plaintiff against the 

likelihood of harm to the defendant.” Scotts Co. v. United Indus. Corp., 315 F.3d 

264, 271 (4th Cir. 2002) (citations omitted). 

II. RTAO CANNOT DEMONSTRATE IRREPARABLE HARM 

 RTAO fails to meet its burden to demonstrate that it will suffer irreparable 

harm without the requested temporary relief. RTAO offers only a single, 

conclusory allegation that its speech is being chilled, and it argues that this 

unsupported assertion is sufficient to demonstrate irreparable harm. (See RTAO 

Br. at 52-53.) But a mere allegation of First Amendment injury does not 

demonstrate irreparable harm for purposes of a preliminary injunction. See Smith 

v. Frye, 488 F.3d 263, 271 (4th Cir.), cert. denied, 128 S. Ct. 653 (2007) (holding 

that harm allegation does not “necessarily, by itself, state a First Amendment claim 

under Elrod [v. Burns, 427 U.S. 347 (1976) (plurality)]”); see also Christian 
15

Knights of the Ku Klux Klan Invisible Empire, Inc. v. District of Columbia, 919 

F.2d 148, 149-50 (D.C. Cir. 1990) (holding Elrod applicable only when “First 

Amendment rights were totally denied”). 

RTAO’s allegation of chilled speech is demonstrably unfounded. RTAO 

purportedly fears that its solicitation and advertising would qualify the 

organization as a political committee under sections 100.57 and 100.22(b), 

respectively, and under the Commission’s policy regarding political committee 

status determinations. As to the solicitation regulation, RTAO’s claim of harm 

fails because the Commission has stated throughout this litigation that RTAO’s 

proposed solicitation would not meet the test of section 100.57, and so donations 

received in response to that solicitation would not constitute contributions or count 

towards the $1,000 threshold for political committee status. But even if RTAO 

nonetheless qualified as a political committee, the regulations and policy at issue 

here still would not harm RTAO, for they impose absolutely no restriction on 

political committee speech or expenditures. As a political committee, RTAO could 

engage in unlimited independent campaign advocacy, including any 

communications constituting express advocacy independent expenditures under 

11 C.F.R. § 100.22(b). See FEC v. Nat’l Conservative Political Action Comm., 

470 U.S. 480 (1985); 11 C.F.R. § 114.12 (treating incorporated political committee 

as political committee rather than as corporation). Similarly, RTAO could fund as 
16

a political committee any electioneering communications it desired, regardless of 

whether those communications met the test for exemption from FECA’s corporate 

financing restriction under 11 C.F.R. § 114.15. Thus, the presumption that 

irreparable harm occurs when a challenged regulation “directly limits speech,” 

Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 301 (D.C. Cir. 

2006), does not apply here, because none of the Commission regulations at issue 

limits the speech of political committees.2

 As the district court held, “the evidence 

presented . . . was clear: Plaintiff is free to disseminate their message and make 

any expenditures they wish.” (J.A. 126.) 

Furthermore, neither of the types of regulatory restrictions actually 

applicable to political committees — i.e., contribution limits and reporting 

requirements — would cause RTAO any irreparable harm. As to the contribution 

limit, RTAO has not alleged (much less demonstrated) that its fundraising would 

be irreparably harmed by abiding by the $5,000 limit on contributions to political 

committees in 2 U.S.C. § 441a(a)(1)(C). Indeed, it has alleged nothing specific 

about its actual or potential donors, whether it expects to receive more than $5,000 

from any one person, or what concrete harm it would suffer by abiding by the 

 

2

 As for RTAO’s claim that the WRTL dissent argued in favor of granting 

preliminary injunctions in situations such as the instant case (see RTAO Br. at 

17-18), that dissent noted only that an injunction would be granted to a plaintiff “if 

it can qualify for one.” WRTL, 127 S. Ct. at 2704 (Souter, J., dissenting) (emphasis 

added). Neither this nor any of the other opinions in WRTL states that a mere 

allegation of chilled speech actually entitles a plaintiff to a preliminary injunction. 
17

$5,000 limit. Similarly, RTAO has failed to show any irreparable harm from the 

reporting requirements for political committees under 2 U.S.C. §§ 433, 434. The 

Supreme Court has held that a plaintiff bringing an as-applied constitutional 

challenge to disclosure requirements must demonstrate a “reasonable probability” 

that the mandated disclosures “would subject identified persons to ‘threats, 

harassment, and reprisals.’” McConnell, 540 U.S. at 198-99 (quoting Brown v. 

Socialist Workers ’74 Campaign Comm., 459 U.S. 87, 100 (1982)); Buckley, 

424 U.S. at 69 (noting that NAACP members faced “economic reprisal, loss of 

employment, threat of physical coercion, and other manifestations of public 

hostility” (citation omitted)); see also Citizens United v. FEC, 530 F. Supp. 2d 274, 

281 (D.D.C. 2008) (rejecting challenge to electioneering communication disclosure 

requirements due to lack of evidence showing likelihood of reprisals), appeal 

docketed, No. 08-205 (U.S. Aug. 18, 2008). RTAO has not alleged or shown a 

reasonable probability of such dangers.3

 Accordingly, neither the regulations that 

RTAO alleges might qualify it as a political committee nor the Commission’s 

policy regarding political committee status impose any cognizable constitutional 

burdens on RTAO. 

 

3

 Before the district court, RTAO claimed that it would suffer certain 

administrative burdens as a political committee, but such burdens do not constitute 

irreparable harm. “Mere injuries, however substantial, in terms of money, time 

and energy necessarily expended in the absence of a stay are not enough.” 

Chaplaincy, 454 F.3d at 297-98. 
18

 In sum, RTAO fails to make even a rudimentary showing of irreparable 

harm, let alone the “clear” or “strong” showing required in this Circuit. See Scotts, 

315 F.3d at 271; Dan River, Inc. v. Icahn, 701 F.2d 278, 284 (4th Cir. 1983). 

Because “[t]he basis of injunctive relief in the federal courts has always been 

irreparable harm,” Sampson v. Murray, 415 U.S. 61, 88 (1974) (citation omitted), 

RTAO’s failure to demonstrate that the district court abused its discretion on this 

point alone suffices to deny RTAO’s requested relief.4

III. RTAO CANNOT DEMONSTRATE THAT IT IS LIKELY TO 

SUCCEED ON THE MERITS OF ITS CLAIMS 

 RTAO’s facial challenges include claims of both overbreadth and 

vagueness. “[A] plaintiff can only succeed in a facial challenge by ‘establish[ing] 

that no set of circumstances exists under which the Act would be valid,’ i.e., that 

the law is unconstitutional in all of its applications,” Wash. State Grange v. Wash. 

State Republican Party, 128 S. Ct. 1184, 1190 (2008) (quoting United States v. 

 

4

 RTAO cites two district court cases (RTAO Br. at 19, 54), neither of which 

supports its position. In Ohio Right to Life Soc., Inc. v. Ohio Elections 

Comm’n, No. 08-492, 2008 WL 4186312 (S.D. Ohio Sept. 5, 2008), the court 

denied the plaintiff’s motion for a preliminary injunction in all respects, id. at *11, 

except those that the state agency had already conceded, id. at *7. As to the 

contested portion of the lawsuit, the court explicitly held “that any injury to 

Plaintiff's First Amendment interests is outweighed by the state interests at issue.” 

Id. at *11. In Center for Individual Freedom, Inc. v. Ireland, Civ. No. 1:08-190, 

2008 WL 1837324, at *5 (S.D. W. Va. Apr. 22, 2008), the district judge held that 

“vagueness” in a state statute constituted harm where the plaintiff could not 

determine the legality of its planned activity — an issue not relevant here, where 

the Commission has already offered its views on RTAO’s proposed conduct. 
19

Salerno, 481 U.S. 739, 745 (1987)). At a minimum, RTAO carries the “heavy 

burden of proving” that the challenged regulations’ “application to protected 

speech is substantial, ‘not only in an absolute sense, but also relative to the scope 

of the law’s plainly legitimate applications.’” McConnell, 540 U.S. at 207 (quoting 

Virginia v. Hicks, 539 U.S. 113, 120 (2003)). As to vagueness, RTAO must show 

that the regulations are unconstitutionally vague on their face, that is, they fail to 

give “the person of ordinary intelligence a reasonable opportunity to know what is 

prohibited, so that he may act accordingly” and permit “arbitrary and 

discriminatory enforcement.” Grayned v. City of Rockford, 408 U.S. 104, 108 

(1972). RTAO cannot meet these burdens. 

A. The Definition of Express Advocacy at 11 C.F.R. § 100.22(b) Is 

Constitutional 

 It is “firmly embedded” in the Supreme Court’s First Amendment 

jurisprudence that corporations and labor unions may constitutionally be prohibited 

from using their general treasuries to fund communications “expressly advocating” 

for or against the election of a candidate. McConnell, 540 U.S. at 203. RTAO 

alleges, however, that the Commission’s regulatory definition of “expressly 

advocating” is unconstitutional, both facially and as applied to RTAO’s proposed 

radio ads. 

Under 11 C.F.R. § 100.22(b), the definition of “expressly advocating” 

includes a communication that 
20

[w]hen taken as a whole . . . could only be interpreted by a reasonable 

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

clearly identified candidate(s) because — (1) The electoral portion of the 

communication is unmistakable, unambiguous, and suggestive of only one 

meaning; and (2) Reasonable minds could not differ as to whether it 

encourages actions to elect or defeat one or more clearly identified 

candidate(s) or encourages some other kind of action. 

RTAO argues that this regulation violates the First Amendment because (1) it 

allegedly regulates communications that are not “unambiguously campaign 

related,” and (2) it does not comport with a narrow interpretation of “magic words” 

express advocacy. The former 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 unambiguously 

encourages the defeat of a specific candidate is, by definition, unambiguously 

campaign related. Thus, even assuming arguendo that the Constitution were to 

prohibit regulation of financing for communications that are not unambiguously 

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

 RTAO’s argument that the regulation of express advocacy is constitutionally 

limited to “magic words” of advocacy was laid to rest in McConnell. In that case, 

the plaintiffs challenging the constitutionality of the Bipartisan Campaign Reform 

Act of 2002 (“BCRA”), Pub. L. No. 107-115, argued that Buckley had found 
21

communications containing “magic words” to be the outer constitutional boundary 

of Congress’s power to regulate in this area. See McConnell, 540 U.S. at 190-91 

(discussing Buckley, 424 U.S. at 44 & n.52). Thus, the plaintiffs argued, BCRA 

was unconstitutional to the extent that it permitted regulation of communications 

that simply referred to federal candidates shortly before elections. See McConnell, 

540 U.S. at 190-91. The Supreme Court rejected this argument, noting that 

Buckley had imposed the magic words requirement because of the vagueness of 

FECA’s original statutory text, not because the First Amendment required that 

limitation in all circumstances. McConnell, 540 U.S. at 191-92. Accordingly, 

McConnell held that Buckley’s “express advocacy limitation . . . was the product of 

statutory interpretation rather than a constitutional command.” Id.

5

 

 As Justice Thomas noted in dissent, McConnell’s holding “overturned” all of 

the Court of Appeals decisions — including this Court’s ruling in FEC v. Christian 

Action Network, Inc., 110 F.3d 1049 (4th Cir. 1997) — that had read Buckley as 

limiting regulation to magic words. McConnell, 540 U.S. at 278 n.11 (Thomas, J., 

dissenting). Other cases relying on this interpretation of Buckley, such as Virginia 

Society for Human Life, Inc. v. FEC, 263 F.3d 379 (4th Cir. 2001) (“VSHL”), were 

 

5

 Congress expressly provided that amending FECA to reach electioneering 

communications had no effect on the Commission’s regulatory definition of 

express advocacy. BCRA § 201(a), 116 Stat. 89 (codified at 2 U.S.C. 

§ 434(f)(3)(A)(ii)) (“Nothing in this subparagraph shall be construed to affect the 

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

Regulations.”). 
22

similarly revealed to be in error. See id. at 392 (citing Buckley and Christian 

Action Network as support for magic words “limit”). As Justice Thomas further 

noted, the only express-advocacy decision that McConnell did not cast into doubt 

was FEC v. Furgatch, 807 F.2d 857 (9th Cir. 1987) — the case from which the 

Commission derived the test codified at section 100.22(b). See Express Advocacy; 

Independent Expenditures; Corporate and Labor Organization Expenditures, 60 

Fed. Reg. 35,292, 35,292-95 (July 6, 1995) (“[S]ection 100.22(b) . . . 

incorporate[s] . . . the Furgatch interpretation . . . .”). Thus, the narrow test of 

section 100.22(b) is entirely consistent with McConnell’s analysis, and RTAO’s 

claim that the Constitution and Buckley prohibit regulation of non-magic words 

communications must fail. 

 Section 100.22(b) is also consistent with the Supreme Court’s holding in 

WRTL. In that case, the Court reiterated McConnell’s upholding of restrictions on 

certain communications that are “the functional equivalent of express advocacy,” 

i.e., that are “susceptible of no reasonable interpretation other than as an appeal to 

vote for or against a specific candidate.” WRTL, 127 S. Ct. at 2667. This 

constitutional standard is similar to the test in section 100.22(b): Both tests 

narrowly inquire whether there is any reasonable way to interpret a communication 

as non-candidate-advocacy and, if so, do not restrict the financing of the 

communication. (J.A. at 118 (“[S]ection 100.22(b) is virtually the same test stated 
23

by Chief Justice Roberts in the majority opinion of WRTL . . . .”).) Because 

WRTL’s constitutional test is, by definition, not unconstitutionally vague, the test 

in section 100.22(b) must also satisfy any vagueness concerns.6

 To the extent 

these standards differ, section 100.22(b) is narrower than the WRTL test, as the 

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

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

advocacy. See WRTL, 127 S. Ct. at 2667. Thus, the Supreme Court’s recent 

adoption of a constitutional test broader than that of section 100.22(b) further 

demonstrates the inapplicability here of any rigid magic words test and the 

permissibility of the Commission’s construction. 

 

6

 In addition, both tests avoid vagueness concerns by refusing to consider the 

subjective intent of the speaker. Compare 60 Fed. Reg. at 35,295 (“[T]he 

subjective intent of the speaker is not a relevant consideration . . . .”) with WRTL, 

127 S. Ct. at 2668 (“To the extent th[e] evidence goes to WRTL’s subjective 

intent, it is again irrelevant.”). The regulation’s “reasonable person” test is like 

other constitutional objective tests. See, e.g., Wyatt v. Cole, 504 U.S. 158, 166 

(1992) (qualified immunity depends upon “wholly objective standard” based on 

whether “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?” (citation omitted)). WRTL’s adoption of a test based on a 

communication’s reasonable interpretation thus undermines VSHL’s holding 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.” VSHL, 263 F.3d at 

391. 
24

 RTAO nonetheless claims that McConnell and WRTL “affirmed that . . . 

express advocacy requires the so-called ‘magic words.’” (RTAO Br. at 27.) This 

argument distorts both cases. As discussed above, McConnell emphasized that the 

presence of magic words is not a constitutional requirement. McConnell, 540 U.S. 

at 191-92. And the portion of WRTL that RTAO cites affirmatively rejected the 

proposition, raised in Justice Scalia’s partial concurrence, that the only permissible 

constitutional standard 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, 127 S. Ct. at 2669 n.7 (citations omitted); see also id. at 2692-96 (Souter, 

J., dissenting). Thus, neither case stands for the proposition that the line between 

permissible and impermissible regulation must be drawn at magic words. 

 RTAO relies heavily upon North Carolina Right to Life, Inc. v. Leake, 

525 F.3d 274 (4th Cir. 2008), in which this Court invalidated a state definition of 

express advocacy. The definition at issue in Leake, however, was significantly 

broader and less precise than section 100.22(b), including such “contextual 
25

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. This Court noted 

that the state statute “swe[pt] far more broadly than WRTL’s ‘functional equivalent 

of express advocacy’ test,” and emphasized that “North Carolina remain[ed] free to 

adopt a definition of express advocacy consistent with the standards approved by 

McConnell and WRTL.” Id. at 297, 301. Section 100.22(b) is consistent with both 

McConnell and WRTL, and it does not bear the overbreadth infirmities present in 

Leake.

7

RTAO places tremendous emphasis on a single sentence from a footnote in 

WRTL, in which the Chief Justice noted that the test for the functional equivalent 

of express advocacy was “triggered” by the statutory definition of electioneering 

communications. WRTL, 127 S. Ct. at 2669 n.7. RTAO argues that this sentence, 

as interpreted by Leake, 525 F.3d at 282-83, renders the WRTL test inapplicable to 

 

7

 RTAO also fails to identify any constitutional flaw in the actual cases in 

which the Commission has recently applied its express advocacy regulation. Such 

cases have included communications characterizing presidential candidates as 

untrustworthy and unfit for the presidency. For example, the Commission found to 

be express advocacy the “Swiftboat” ads, which stated that Senator John Kerry 

“lacks the ability to lead,” “cannot be trusted,” and “gave [aid] and comfort to the 

enemy.” (J.A. 59-60.) Similarly, the Commission found that television ads were 

express advocacy where the ads stated that “John Kerry fought and bled in the 

Vietnam War. He fought side by side with brothers who could not get out of the 

draft because they didn’t have a rich father like George W. Bush. . . . You better 

wake up before you get taken out.” (J.A. 81-82.) Although none of these ads 

would satisfy a wooden test of magic-words express advocacy, RTAO fails to 

demonstrate why it was unconstitutional for the Commission to find that they were 

campaign ads. 
26

any speech other than that which would be an electioneering communication under 

BCRA. (See RTAO Br. at 13-14, 25-29.) But as already discussed, Leake

addressed a sweeping definition of express advocacy that was “clearly 

‘susceptible’ to multiple interpretations and capable of encompassing ordinary 

political speech unrelated to electoral activity.” 525 F.3d at 284. To the extent the 

Court referenced the footnote on which RTAO relies, it made clear that the 

discussion was not necessary to its constitutional holding. Id. at 299 (“[E]ven if 

. . . WRTL did not intend to mandate the specific dictates of BCRA § 203 as a 

necessary prerequisite for functional equivalency, it is inconceivable that the 

Supreme Court would ever allow a state to substitute a test as vague and broad as 

this ‘context prong’ as an alternative standard. For even a cursory reading of 

§ 163-278.14A(a)(2) uncovers its serious constitutional infirmities.”). Faced with 

a “complete lack of notice as to what speech is regulable, and the unguided 

discretion given to the State to decide when it will move against political speech 

and when it will not,” the Court was left no option but to declare the statute in 

Leake unconstitutional. Id. at 285. Those infirmities are simply not present here. 

RTAO’s argument would turn BCRA’s statutory definition of electioneering 

communications into a constitutional test, requiring that every regulation of nonmagic-words express advocacy meet both the WRTL standard and the BCRA 

definition in order to be constitutional. There is no indication in WRTL that the 
27

Chief Justice intended any such result; rather, the sentence on which RTAO relies 

specifically highlighted the distinction between statutory requirements and 

constitutional ones to rebut Justice Scalia’s argument that the only permissible 

First Amendment standard is a magic words test. Under the logic of RTAO’s 

argument, WRTL would forever prohibit Congress from expanding the statutory 

electioneering communication definition in any way. For example, Congress 

would be empowered to regulate as an electioneering communication an 

advertisement that airs sixty days before a general election and is the functional 

equivalent of express advocacy, but Congress would be constitutionally prohibited

from regulating the same communication if it aired one day earlier. RTAO’s 

attempt to manufacture such an enormous limitation on congressional power sub 

silentio is without merit. 

In additional to its facial challenge, RTAO also challenges the application of 

section 100.22(b) to its two radio ads. Regarding Change, the Commission agreed 

with RTAO before the district court that the ad was not express advocacy under 

11 C.F.R. § 100.22(b) because, inter alia: (1) a reasonable person could conclude 

that the ad encouraged listeners to seek information regarding Senator Obama’s 

position on abortion; (2) the ad was devoted to speech regarding abortion as a 

public policy issue; (3) the ad contained only indirect and oblique references to the 

presidential campaign; and (4) the ad did not directly question Senator Obama’s 
28

leadership qualities. Thus, although Change contains several unambiguous 

references to Senator Obama’s campaign for President, including a reference to the 

uniquely presidential duty of “[a]ppoint[ing] . . . Justices [to] the U.S. Supreme 

Court,”8

 the Commission has noted throughout this litigation that its narrow 

interpretation of section 100.22(b) does not encompass Change. 

Survivors, in contrast, contains numerous elements of express advocacy, 

including almost all of the elements that the Commission noted were absent from 

Change. First, Survivors criticizes Senator Obama’s character, saying that he has 

shown “callousness” and “a lack of character and compassion.” Such character 

attacks are among what the Supreme Court has called “indicia of express 

advocacy.” See WRTL, 127 S. Ct. at 2667 (holding that indicia include “tak[ing] a 

position on a candidate’s character”). Second, Survivors refers to Senator Obama’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 

 

8

 The Commission recognizes that the district court determined from such 

references that the ad meets the test in section 100.22(b) (J.A. 110-11), and the 

Commission agrees that it is reasonable to believe that the purpose of Change is to 

influence the presidential election. However, the ad also can be reasonably viewed 

as encouraging viewers to educate themselves about Senator Obama’s position on 

abortion. Because of the narrowness and precision with which the Commission 

applies its regulation to advertising that lends itself to more than one reasonable 

interpretation, the Commission respectfully disagrees with the district court’s 

determination. 
29

Senator Obama’s alleged record on the abortion issue as “horrendous” and uses 

this as evidence for his alleged “callousness” and “lack of character and 

compassion.” See id. at 2667 n.6 (distinguishing WRTL’s ads from 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 2667 (“[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 Senator Obama’s 

character, not to any action on public policy, there is only one reasonable 

interpretation of that phrase: “Everyone” should “pause” before voting for Senator 

Obama. To ask listeners to hesitate before supporting a candidate is equivalent to 

“reject[ing]” him — one of the examples of words of express advocacy listed in 

Buckley, 424 U.S. at 44 n.52. Indeed, the ad emphasizes not only that abortion 

opponents should reject Senator Obama, but also that “everyone,” regardless of any 

position on abortion, should hesitate because Senator Obama has character flaws.9

 

Thus, “[r]easonable minds could not differ as to whether” Survivors encourages 

 

9

 In an argument not presented to the district court, RTAO now claims that the 

“everyone” addressed in Survivors includes Senator Obama. (RTAO Br. at 51.) 

Even if true, requesting that the Senator “pause” before acting does not negate the 

ad’s call for “everyone” else to pause before supporting him. 
30

listeners not to vote for Senator Obama, and the ad can be regulated 

constitutionally as express advocacy. 

 In sum, the Commission’s analysis of Change and Survivors demonstrates 

why the regulation is neither overbroad nor vague. The Change ad contains 

nuanced text that can be subject to multiple interpretations, and the Commission 

therefore analyzed the ad in accordance with its regulation to ensure that if 

reasonable minds could differ about whether the ad encourages an electoral result, 

then it is not express advocacy. In contrast, Survivors is “unmistakable” and 

“unambiguous,” containing the express advocacy that Change omitted. In other 

words, the Commission applies the same regulatory criteria to both ads but reaches 

different results because of the distinct elements of their texts. There is no 

vagueness here, and the Commission’s narrow application of its regulation is fully 

consistent with WRTL’s teaching that any “tie goes to the speaker,” WRTL, 127 

S. Ct. at 2669. RTAO, like all other advertisers, can determine from the regulation 

and the Commission’s precedent whether a given communication is or is not 

express advocacy.10

 

10 Advertisers such as RTAO have the option of requesting an advisory opinion 

from the Commission as to any given communication. 2 U.S.C. § 437f(a). The 

Commission is required by law to respond to such a request within sixty days, 

2 U.S.C. § 437f(a)(1), and may provide a response in significantly less time when 

expedition is requested. See, e.g., FEC Advisory Opinion 2006-16, 

http://saos.nictusa.com/aodocs/2006-16.pdf (May 10, 2006) (issued in 16 days); 

FEC Advisory Opinion 2007-03, http://saos.nictusa.com/aodocs/2007-03.pdf (Mar. 
31

B. RTAO’s Challenge to the Solicitation Regulation at 11 C.F.R. 

§ 100.57 Is Not Justiciable, and the Regulation Is Constitutional 

 As the Commission explained before the district court, section 100.57 does 

not apply to RTAO’s proposed solicitation letter because that letter does not 

indicate that funds received will be used to support or oppose Senator Obama’s 

candidacy within the meaning of the regulation. Accordingly, donations received 

will not be “contributions,” and the regulation will cause RTAO neither a distinct 

injury nor irreparable harm. As a result, RTAO’s facial challenge presents only an 

abstract inquiry that is not ripe or otherwise fit for judicial resolution. See Renne v. 

Geary, 501 U.S. 312, 323-24 (1991). 

In any event, RTAO is not likely to succeed on the merits of its facial 

challenge: The regulation is well within the Commission’s authority, “gives ‘fair 

notice to those to whom [it] is directed,’” McConnell, 540 U.S. at 223, and is not 

arbitrary and capricious. Section 100.57 reasonably interprets FECA to ensure that 

money donated in response to an appeal to help influence federal elections will not 

evade the Act’s contribution limits and undermine their anti-corruption objective. 

See Political Committee Status, 72 Fed. Reg. 5595, 5602 (Feb. 7, 2007). 

 

1, 2007) (issued in 28 days); FEC Advisory Opinion 2008-09, 

http://saos.nictusa.com/aodocs/AO 2008-09 final.pdf (Aug 21, 2008) (issued in 27 

days); see also Press Release, FEC Releases Draft Advisory Opinion Under 

Expedited Process (May 4, 2006), 

http://www.fec.gov/press/press2006/20060504detertao.html (explaining expedited 

process for issuance of an advisory opinion). 
32

Buckley held that the definition of “contribution” raises lesser constitutional 

concerns than that of “expenditure.” While expenditure limits are subject to strict 

scrutiny because they “place substantial and direct” limits on speech, Buckley, 424 

U.S. at 58, limits on contributions entail “only a marginal restriction upon the 

contributor’s ability to engage in free communication,” id. at 20-21, and will be 

upheld if they are “closely drawn to match a sufficiently important interest,” 

McConnell, 540 U.S. at 136 (citations and quotation marks omitted). In particular, 

Buckley found it unnecessary to narrowly construe “contribution” as it did 

“expenditure,” and instead stated that the term includes 

not only contributions made directly or indirectly to a candidate, 

political party, or campaign committee, and contributions made to 

other organizations or individuals but earmarked for political 

purposes, but also all expenditures placed in cooperation with . . . 

a candidate . . . . 

424 U.S. at 78 (emphasis added). 

Buckley did not, as RTAO suggests, employ an “unambiguously-campaignrelated” analysis for contributions. Id. at 23 n.24, 78. Neither of the portions of 

Buckley that RTAO cites in support of this contention apply any such requirement. 

(RTAO Br. at 23, 30-31 (citing Buckley, 424 U.S. at 23 n.24, 78).) Instead, 

Buckley expressly noted that “contributions” include funds that are intended 

merely for “political purposes.” Buckley, 424 U.S. at 23 n.24, 78. This category of 

“political” spending is far broader than the narrow “campaign related” limitation 
33

the Court imposed on expenditures. See id. at 81. Furthermore, several of the 

quotations that RTAO (Br. at 21) ascribes to Buckley’s footnote 24 — a footnote 

discussing contributions — do not appear in that portion of the opinion, but rather 

in the Court’s discussion of expenditures, 424 U.S. at 80-81. As noted above, 

expenditures are subject to stricter scrutiny than contributions, and the Court 

imposed no restriction on FECA’s contribution definition equivalent to the 

restrictions it placed on the expenditure definition. Finally, the Supreme Court has 

also rejected RTAO’s related contention (Br. at 31) that a donation cannot be a 

contribution unless there is an “unambiguously campaign related” expenditure 

“corresponding” to that donation. See Cal. Med. Ass’n v. FEC, 453 U.S. 182, 198 

n.19 (1981) (holding that donations “earmarked for administrative support” and 

other non-political purposes are contributions because exempting such donations 

“could corrupt the political process in a manner that Congress, through its 

contribution restrictions, has sought to prohibit”). Because RTAO’s challenge to 

section 100.57 rests heavily on these errors, RTAO has little likelihood of success 

on the merits. The regulation’s requirement that a solicitation must seek funds to 

“support or oppose the election of a . . . candidate” is plainly narrower than 

Buckley’s “earmarked for political purposes.” 

 When the Commission promulgated section 100.57, it relied in part on FEC 

v. Survival Educ. Fund, Inc., 65 F.3d 285 (2d Cir. 1995), which had addressed 
34

whether a mailing sent by a nonprofit issue advocacy group constituted solicitation 

of “contributions” in the context of a disclaimer requirement. The court held that 

“[e]ven if a communication does not itself constitute express advocacy, it may still 

fall within the reach of ” FECA’s solicitation disclosure requirements if it 

“contains solicitations clearly indicating that the contributions will be targeted to 

the election or defeat of a clearly identified candidate for federal office.” Id. at 

295. More recently, the constitutionality of 11 C.F.R. § 100.57 was upheld against 

a facial challenge in EMILY’s List v. FEC, 569 F. Supp. 2d 18 (D.D.C. 2008); see 

also 362 F. Supp. 2d 43 (D.D.C. 2005), aff’d, 2005 WL 3804998 (D.C. Cir. 2005). 

The court specifically rejected the argument that the use of “support or oppose” 

made the regulation unconstitutionally vague. 

[T]he Supreme Court rejected just such a claim in McConnell, 

stating that “[t]he words ‘promote,’ ‘oppose,’ ‘attack,’ and 

‘support’ ... ‘provide explicit standards for those who apply 

them’ and ‘give the person of ordinary intelligence a reasonable 

opportunity to know what is prohibited.’” 

569 F. Supp. 2d at 53 (emphasis by the court; citations omitted); see also Voters 

Educ. Comm. v. Wash. State Pub. Disclosure Comm’n, 166 P.3d 1174, 1183-84 & 

nn.8-9 (Wash. 2007) (en banc), cert. denied, 128 S. Ct. 2898 (2008) (holding that 

“the phrase ‘in support of, or opposition to, any candidate’ in the definition of 

‘political committee’” is not unconstitutionally vague). 
35

 Conversely, as the district court held (J.A. 121), none of the cases RTAO 

cites (RTAO Br. at 32-34 & n.7) actually supports its argument. Leake invalidated 

part of North Carolina’s “method for determining if a communication ‘supports or 

opposes the nomination or election of’” a clearly identified candidate. 525 F.3d at 

280 (emphasis added). However, contrary to RTAO’s assertion, the Court did not 

find the “support or oppose” language itself unconstitutional. Indeed, after holding 

that the implementing method was unconstitutionally vague and overbroad, the 

Court assured North Carolina that it “remains free to enforce all campaign finance 

regulations that incorporate the phrase ‘to support or oppose the nomination or 

election of’” a clearly identified candidate. Id. at 301. Moreover, the Court 

distinguished the provision it invalidated from the “support or oppose” provision 

upheld in Voters Education Committee. Leake, 525 F.3d at 299. 

 In North Carolina Right to Life, Inc. v. Bartlett, 168 F.3d 705 (4th Cir. 

1999), a state statute defined “political committee” as any entity “the primary or 

incidental purpose of which is to support or oppose any candidate or political party 

or to influence or attempt to influence the result of an election.” Id. at 712 

(emphasis added). Concerned that this definition would encompass entities 

engaged only in issue advocacy, this Court ruled that the statute’s references to 

“influencing” elections rendered the definition unconstitutionally vague and 

overbroad. Id. at 712-13. In contrast, the Court expressly equated the “support or 
36

oppose” terminology with the portion of FECA’s political committee definition 

that Buckley had upheld as constitutional. See id. at 713. The Bartlett decision 

thus provides no support for the proposition that “support or oppose” language is 

unconstitutional.11

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

is even less germane, for it concerned a statutory definition of expenditures, not 

contributions. The state campaign finance statute at issue there defined an 

expenditure as “anything of value made for the purpose of supporting, opposing, or 

otherwise influencing the nomination or election of a person to public office.” Id. 

at 663 (emphasis added). The Fifth Circuit, citing Buckley, found the phrase “or 

otherwise influencing” to be problematic, and the court construed it narrowly to 

avoid unconstitutional vagueness. Id. at 663-65. Carmouche did not concern 

 

11 RTAO also cites (Br. at 34) Anderson v. Spear, 356 F.3d 651 (6th Cir. 

2004), and ACLU of Nevada v. Heller, 378 F.3d 979 (9th Cir. 2004), neither of 

which is apt. Anderson discusses limits on “electioneering” near a polling place. 

The Sixth Circuit did not question the phrase “solicitation of votes for or against 

any candidate” but instead found that the prohibition of “the displaying of signs 

[and] the distribution of campaign literature, cards, or handbills” was vague and 

overbroad. In ACLU of Nevada, the Ninth Circuit invalidated an overly broad 

“content-based limitation on core political speech,” but the problematic statutory 

phrase was “material or information relating to” an election, not “support or 

oppose.” 378 F.3d at 992. 
37

contributions at all, nor did it call into question (or even discuss) the statutory 

phrase “for the purpose of supporting [or] opposing.”12

In sum, the solicitation regulation causes RTAO no harm, RTAO 

misunderstands the Supreme Court’s explanation of “contribution,” and the cases 

RTAO cites do not hold that “support or oppose the election of a . . . candidate” is 

unconstitutional. In contrast, the authorities on which the Commission relies 

confirm the constitutionality of that language. 

C. The Commission’s Explanation Regarding Its Determination 

of Political Committee Status Is Not Subject to APA Review; 

In Any Event, the Explanation Is Constitutional 

 RTAO challenges the Commission’s explanation of how it determines 

whether the major purpose test for political committee status has been met, as 

noted in an Explanation and Justification (“E&J”) published in the Federal 

Register. 72 Fed. Reg. 5595. But because this explanation binds no one and its 

discussion of the Commission’s political committee analysis does not constitute 

final agency action, RTAO’s claim is not reviewable under the APA. Courts may 

only hear APA suits based on “final agency action for which there is no other 

 

12 RTAO also cites (Br. at 32) two loyalty oath cases, but they, too, do not 

involve the “support or oppose” language found in the Commission’s solicitation 

regulation. In Cramp v. Bd. of Pub. Instr. of Orange County, 368 U.S. 278, 286 

(1961), the Court struck down as unconstitutionally vague a law requiring public 

employees to swear that they have not and will not knowingly “lend [their] aid, 

support, advice, counsel or influence to the Communist Party.” And in Cole v. 

Richardson, 405 U.S. 676, 684 (1972), the Court upheld the “oppose the overthrow 

of the government” clause in a loyalty oath against a vagueness challenge. 
38

adequate remedy in a court.” 5 U.S.C. § 704. “Final agency action” consummates 

the agency’s decision-making process and determines the rights and obligations of 

parties. Bennett v. Spear, 520 U.S. 154, 177-78 (1997); Flue-Cured Tobacco 

Coop. Stabilization Corp. v. EPA, 313 F.3d 852 (4th Cir. 2002) (holding 

publication of report not final agency action); Invention Submission Corp. v. 

Rogan, 357 F.3d 452, 459 (4th Cir. 2004). 

The E&J that RTAO challenges was issued to explain the Commission’s 

decision not to promulgate a revised definition of “political committee” or to single 

out for increased regulation entities claiming tax-exempt status as “political 

organizations” under section 527 of the Internal Revenue Code. 72 Fed. Reg. at 

5595, 5598. As part of that E&J, the Commission “discusse[d] several recently 

resolved administrative matters that provide considerable guidance to all 

organizations regarding . . . political committee status.” Id. at 5595. Its decision to 

continue analyzing political committee status on a case-by-case basis rather than 

promulgating a rule of general application was challenged and upheld in Shays v. 

FEC, 511 F. Supp. 2d 19 (D.D.C. 2007). The E&J’s primary purpose was to 

explain why a broad regulation was not created; it purports neither to establish a 

binding norm nor to decide anyone’s legal status. The E&J did not create a new 

regulation or change past policy but simply explained how the Commission’s 

particular case-by-case enforcement actions provide “guidance” to organizations 
39

about political committee status and the major purpose test. 72 Fed. Reg. at 5604. 

This guidance is not “final” agency action subject to APA review, and RTAO cites 

no authority to the contrary. 

 Even if reviewable, the Commission’s approach to political committee status 

is constitutional. The Supreme Court, not the Commission, established the major 

purpose test. Buckley, 424 U.S. at 79; see also McConnell, 540 U.S. at 170 n.64. 

RTAO’s claim appears to focus on the Commission’s implementation of that test, 

but the Commission’s approach is not unconstitutionally vague or overbroad. The 

assessment of an organization’s “major” purpose is an inherently comparative 

analysis and thus requires understanding an organization’s overall activities. In 

enforcement decisions, the Commission considers a variety of factors to determine 

an organization’s major purpose, including the organization’s public statements, 

representations made in government filings, statements made to potential donors, 

internal governing documents, and the proportionate amount of spending on 

election-related activity. See 72 Fed. Reg. at 5605. As the district court noted 

(J.A. 123-24), courts have endorsed the use of these factors. See, e.g., FEC v. 

Malenick, 310 F. Supp. 2d 230, 234-37 (D.D.C. 2004) (considering, inter alia, 

organization’s statements in brochures, fax alerts sent to potential and actual 

contributors, and spending to influence federal elections); FEC v. GOPAC, Inc., 

917 F. Supp. 851, 859, 864-66 (D.D.C. 1996) (“The organization’s purpose may be 
40

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.”). In numerous administrative enforcement proceedings and advisory 

opinions, the Commission has examined these and other factors to determine 

whether organizations satisfy the major purpose test. See 72 Fed. Reg. at 5605-06. 

RTAO cannot provide a single case in which the Commission incorrectly 

determined the major purpose of an organization.13 Thus, there is no legal or 

factual basis for RTAO’s claim that the Commission’s political committee analysis 

is unconstitutionally overbroad or vague. 

RTAO also argues that the Commission has improperly reformulated the 

major purpose test to focus on “Federal campaign activity,” instead of on the 

nomination or election of candidates. (RTAO Br. at 36.) Buckley, however, uses 

the term “campaign related” to summarize the numerous categories of legitimately 

regulable activity by political committees, as well as to distinguish such 

organizations from groups “engaged purely in issue discussion.” 424 U.S. at 79. 

The Commission’s use of the phrase “federal campaign activity” when examining 

 

13 RTAO concedes that the major purpose test “requires an examination of the 

entity’s organic documents,” but asserts that the purpose of this examination is 

only “to determine if there was an express intention to operate as a political 

committee, e.g., by being designated as a ‘separate segregated fund.’” (RTAO Br. 

at 38.) Such a limited inquiry, however, would be meaningless, for an entity 

“designated as a separate segregated fund,” has already chosen to accept political 

committee status by definition. 2 U.S.C. § 431(4)(B). The major purpose test is 

therefore irrelevant to such entities. 
41

a group’s major purpose thus reasonably takes into account that not all “campaign 

related” spending involves communications regarding nomination or election of 

candidates; it may also involve expenditures for activities, such as gaining ballot 

access, rather than payments for disseminating advocacy messages. Moreover, as 

the district court noted (J.A. 123), the use of the word “federal” simply clarifies 

that to satisfy the major purpose test an organization’s campaign activity must 

involve federal candidates, not state or local ones. See 72 Fed. Reg. at 5601. Like 

the rest of the Commission’s interpretation, this is reasonable and constitutional. 

D. The Regulation Regarding Corporation-Funded Electioneering 

Communications at 11 C.F.R. § 114.15 Is Constitutional 

 FECA prohibits corporations from funding “any applicable electioneering 

communication,” which is defined in the context of a presidential campaign as a 

“broadcast . . . communication” that (a) refers to a clearly identified presidential 

candidate, and (b) is made within sixty days before a general election or thirty days 

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

Supreme Court has upheld the constitutionality of this financing restriction “to the 

extent that the [communications] ... are the functional equivalent of express 

advocacy.” McConnell, 540 U.S. at 189-94, 203-08; WRTL, 127 S. Ct. at 2667. 

 Chief Justice Roberts’ controlling opinion in WRTL 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 a specific 
42

candidate.” WRTL, 127 S. Ct. at 2667. The opinion then listed indicia of genuine 

issue ads and express advocacy and analyzed the ads at issue: 

First, [the ads’] content is consistent with that of a genuine 

issue ad: The ads focus on a legislative issue, take a position on 

the issue, exhort the public to adopt that position, and urge the 

public to contact public officials with respect to the matter. 

Second, their content lacks indicia of express advocacy: The 

ads do not mention an election, candidacy, political party, or 

challenger; and they do not take a position on a candidate’s 

character, qualifications, or fitness for office. 

Id. Shortly thereafter, the Commission promulgated a regulation to codify the 

controlling opinion, using, essentially verbatim, the same criteria that the Chief 

Justice used. See 11 C.F.R. § 114.15. 

Section 114.15 straightforwardly implements WRTL, providing additional 

guidance without exceeding the constitutional boundary described in that decision. 

As the district court explained, “[b]y doing a side-by-side comparison, it is very 

apparent that the FEC’s regulation simply adopted the test enumerated in WRTL to 

create the electioneering communication regulation in section 114.15.” (J.A. 

124-25.) Tracking the language of WRTL, section 114.15 states that a corporation 

may fund an electioneering communication “unless the communication is 

susceptible of no reasonable interpretation other than as an appeal to vote for or 

against a clearly identified Federal candidate.” 11 C.F.R. § 114.15(a); 

Electioneering Communications, 72 Fed. Reg. 72,899, 72,902 (Dec. 26, 2007); 

WRTL, 127 S. Ct. at 2667. For additional clarity, two safe harbor provisions for 
43

lobbying messages and commercial advertisements supplement the general exemption. 11 C.F.R. § 114.15(b); 72 Fed. Reg. at 72,903. The regulation also adheres 

to WRTL’s teaching that when there is doubt about a communication’s meaning, 

the “tie goes to the speaker,” 127 S. Ct. at 2669; the regulation’s rule of 

interpretation states that in “interpreting a communication under paragraph (a) of 

this section, any doubt will be resolved in favor of permitting the communication,” 

11 C.F.R. § 114.15(c)(3). 

 RTAO challenges section 114.15 both facially and as applied to Change and 

Survivors. As to Change, the Commission agreed with RTAO before the district 

court that the ad qualifies for the general exemption set out in section 114.15(a). 

Indeed, Change shares many characteristics of an example included in the 

Commission’s rulemaking of a communication that does not qualify for the safe 

harbor but that is nevertheless permissible under 11 C.F.R. § 114.15(a). 72 Fed. 

Reg. at 72,908 (Example 1). That ad criticized a congressman for his 

environmental record and urged listeners to call him and “[t]ell him to protect 

America’s environment.” Id. While both ads include indicia of express advocacy 

under 11 C.F.R. § 114.15(c), they both focus on public policy issues. Because 

“any doubt is to be resolved in favor of finding the communication permissible,” 

both may be financed with corporate or union funds. Id. In contrast, Change

differs from another sample ad that is not permissible under the regulation; that ad 
44

identifies two “candidates,” then asks “where do the candidates stand?”, and 

characterizes the candidates’ records positively and negatively. 72 Fed. Reg. at 

72,909 (Example 2). In sum, section 114.15 does not prohibit RTAO from running 

the Change advertisement. 

As to Survivors, for substantially the same reasons that it is express 

advocacy under 11 C.F.R. § 100.22(b), it is also regulable as the functional 

equivalent of express advocacy under 11 C.F.R. § 114.15(a). See supra Part III.A. 

Indeed, the ad explicitly “condemn[s Senator Obama’s] record on a particular 

issue,” the precise distinction that Chief Justice Roberts drew between the ads at 

issue in WRTL and a hypothetical candidate ad analyzed in McConnell. See WRTL, 

127 S. Ct. at 2667 n.6. Because RTAO’s ad “is susceptible of no reasonable 

interpretation other than as an appeal to vote . . . against a specific candidate,” 

WRTL, 127 S. Ct. at 2667; 11 C.F.R. § 114.15(c), the application of FECA’s 

financing restrictions to the ad is constitutional. 

 The Commission’s regulatory criteria for making this determination are 

essentially identical to the criteria set out in WRTL; thus, section 114.15 is neither 

vague nor overbroad. Contrary to RTAO’s inaccurate description of section 

114.15(c), the regulation does not “demote” the Supreme Court’s standard. As 

explained above, section 114.15 contains only one standard, the one articulated by 

the Court itself: A corporation can pay for an electioneering communication 
45

“unless the communication is susceptible of no reasonable interpretation other than 

as an appeal to vote for or against a clearly identified Federal candidate.” 

11 C.F.R. § 114.15(a). The rules of interpretation articulated in section 114.15(c) 

come directly from the Court’s analysis in WRTL. See WRTL, 127 S. Ct. at 2667. 

For example, RTAO asks “why would merely mentioning an incumbent 

politician’s party identification . . . indicate that the ad is (or might be) express 

advocacy?” (RTAO Br. at 45.) The answer is that Chief Justice Roberts held in 

WRTL that “mention [of] an election, candidacy, [or] political party” constitutes 

“indicia of express advocacy.” WRTL, 127 S. Ct. at 2667. Thus, contrary to 

RTAO’s accusations, the Commission has not given short shrift to the Court’s 

fundamental test by listing and considering indicia of express advocacy. That is 

precisely what the Supreme Court did in WRTL. 

 RTAO argues that Leake somehow supports its position that section 114.15 

is void. It does not. Leake struck down a state law provision because it relied on 

open-ended factors such as the “ ‘essential nature [of the communication],’ ‘the 

timing of the communication in relation to events of the day,’ ‘the distribution of 

the communication to a significant number of registered voters for that candidate’s 

election,’ and ‘the cost of the communication.’” 525 F.3d at 283-84. These sorts 

of factors are specifically excluded from consideration under section 114.15(d) 

(“[T]he Commission may consider only the communication itself and basic 
46

background information . . . .”), and the Commission’s regulation accordingly does 

not share the problematic aspects of the statute at issue in Leake. 

Finally, RTAO argues at length that a communication must contain an 

“appeal to vote” in order to be regulable as the functional equivalent of express 

advocacy. This argument fails as a matter of law, for it seeks to reintroduce a test 

akin to the magic words requirement that the Supreme Court rejected in McConnell

and WRTL. The WRTL test does not ask whether the communication contains

specific words constituting an appeal to vote, but instead it asks whether the 

communication “is susceptible of no reasonable interpretation other than as an 

appeal to vote.” WRTL, 127 S. Ct. at 2667 (emphasis added). WRTL’s application 

of the test further demonstrates that the inquiry is holistic, examining the “focus” 

of the communication, any “position” it manifests, and whether the “content is 

consistent” with “genuine” issue advocacy. Id. Indeed, when the Supreme Court 

analyzed whether the content of WRTL’s ads contained “indicia of express 

advocacy,” it “focus[ed] on the substance of the communication,” id. at 2666-67, 

reviewing whether the ads “mention an election, candidacy, political party, or 

challenger” and whether they “take a position on a candidate’s character, 

qualifications, or fitness for office,” not whether the ads contain specific words 

exhorting viewers to vote for or against a candidate. Id. at 2667. The WRTL test is 

therefore necessarily broader than a wooden, magic words interpretation of express 
47

advocacy. WRTL overruled neither McConnell’s facial upholding of the 

electioneering communication provision nor the Court’s explanation that Buckley’s 

express advocacy interpretation is not a constitutional requirement. Thus, WRTL

does not stand for the proposition that the presence or absence of specific words of 

electoral advocacy is the determining factor in whether a communication is the 

functional equivalent of express advocacy. 

In sum, because section 114.15 is derived from and consistent with the 

Supreme Court’s analysis in WRTL, it is neither overbroad nor vague nor in excess 

of the Commission’s statutory authority. 

IV. THE PUBLIC INTEREST AND THE BALANCE OF HARMS WEIGH 

AGAINST THE ISSUANCE OF A PRELIMINARY INJUNCTION 

 Enjoining the Commission from enforcing its regulations would 

substantially injure the Commission and harm the public, whose interests the 

Commission is charged with protecting. “[A]ny time a State is enjoined by a court 

from effectuating statutes enacted by representatives of its people, it suffers . . . 

injury.” New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 434 U.S. 1345, 1351 

(1977) (Rehnquist, J., in chambers); see also Walters v. Nat’l Ass’n of Radiation 

Survivors, 468 U.S. 1323, 1324 (1984) (Rehnquist, J., in chambers). The imminent 

harm to the public if the Commission is not permitted to enforce its regulations far 

outweighs RTAO’s speculative fear. In the key days leading up to the national 

election, halting enforcement of the challenged regulations could undermine the 
48

public’s confidence in the federal campaign finance system. As the Supreme Court 

has noted, “[c]ourt orders affecting elections . . . can themselves result in voter 

confusion . . . . As an election draws closer, that risk will increase.” Purcell, 549 

U.S. at 7 (vacating circuit court’s grant of preliminary injunction against 

enforcement of election statute). The regulations and policy at issue implement 

longstanding limits on corporate influence in federal elections and ensure that 

political committees abide by contribution limits and disclose their receipts and 

disbursements to the public. These limits and disclosure requirements serve 

compelling government interests in preventing corruption, educating the public, 

and facilitating the Commission’s enforcement of the law. Thus, enjoining 

application of the challenged provisions could confuse political actors, allow 

improper use of corporate funds in the election process, sanction excessive 

campaign contributions, and deprive the public of important information. 

CONCLUSION 

For the foregoing reasons, the district court’s denial of RTAO’s preliminary 

injunction motions should be affirmed. 
49

 Respectfully submitted, 

THOMASENIA P. DUNCAN 

General Counsel 

 /s/ David Kolker 

DAVID KOLKER 

Associate General Counsel 

HARRY J. SUMMERS 

Assistant General Counsel 

ADAV NOTI 

Attorney 

Federal Election Commission 

999 E Street NW 

Washington, DC 20463 

GREGORY G. KATSAS 

Assistant Attorney General 

DANA J. BOENTE 

Acting United States Attorney 

MICHAEL S. RAAB 

ERIC FLEISIG-GREENE 

Attorneys, Appellate Staff 

Civil Division, Room 7214 

U.S. Department of Justice 

950 Pennsylvania Ave., N.W. 

Washington, DC 20530-0001 

October 28, 2008
CERTIFICATE OF COMPLIANCE 

This brief complies with the type-volume limitation of Fed. R. App. P. 

32(a)(7)(B) because this brief contains 11,633 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 

2003 in 14-point Times New Roman font. 

 /s/ David Kolker 

David Kolker 

Associate General Counsel 

COUNSEL FOR APPELLEE 

FEDERAL ELECTION COMMISSION 

999 E Street NW 

October 28, 2008 Washington, DC 20463 
CERTIFICATE OF SERVICE 

I hereby certify that on October 28, 2008, 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 

Clayton James Callen, ccallen@bopplaw.com 

Richard Eugene Coleson, rcoleson@bopplaw.com 

Debra J. Prillaman, Assistant U.S. Attorney, debra.prillaman@usdoj.gov 

 /s/ David Kolker 

David Kolker 

Associate General Counsel 

COUNSEL FOR APPELLEE 

FEDERAL ELECTION COMMISSION 

999 E Street NW 

Washington, DC 20463