Jack Speight (Wyoming Bar No. 4-0983)

4021 Snyder Ave

Cheyenne, WY 82001

307.635.1239 [Tel.]

jbspeight@gmail.com

Benjamin T. Barr

10737 Hunting Lane

Rockville, MD 20850

202.595.4671 [Tel.]

benjamin.barr@gmail.com

Stephen R. Klein

Wyoming Liberty Group

1902 Thomes Ave

Ste. 201

Cheyenne, WY 82001

307.632.7020 [Tel.]

307.632.7024 [Fax.]

stephen.klein@wyliberty.org

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF WYOMING

____________________________________

)

FREE SPEECH )

)

Plaintiff, )

)

v. ) Civil Case No. 12-CV-127-S

)

FEDERAL ELECTION COMMISSION )

)

Defendant. )

____________________________________)

___________________________________________

PLAINTIFF’S MEMORANDUM IN SUPPORT OF OPPOSITION TO MOTION TO DISMISS

____________________________________________

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1. Introduction

The FEC has filed a motion to dismiss with this Court, arguing that Free Speech’s 

challenge should be dismissed under Federal Rule of Civil Procedure 12(b)(6) or alternatively 

under Rule 41(b). For the reasons articulated in this memorandum, neither position has merit 

and the Defendant’s motion should be denied. 

Although Free Speech disagrees with nearly all of the FEC’s characterizations in these 

pleadings, one area of consensus exists. Both parties agree that this case “involves purely legal 

questions” properly resolved through future cross motions for summary judgment. See Def.’s

Mem. in Support of Motion to Dismiss (Docket No. 34) at 1 (“This case presents purely legal 

questions that have been fully and extensively briefed by both parties and amicus curiae....”). 

Because of this, Plaintiff Free Speech will file its own motion for summary judgment pending 

the resolution of the motion to dismiss since there are no disputes as to any material fact and 

judgment should be rendered as a matter of law. 

In resolving the motion to dismiss, this Court must accept as true “all well-plead factual 

allegations in the complaint and viewing them in the light most favorable to the plaintiff.” 

Commonwealth Property Advocates, LLC v. Mortgage Electronic, 680 F.3d 1194, 1201–02 (10th 

Cir. 2011). In assessing the matter, this Court may consider not just the complaint, but “also the 

attached exhibits and documents incorporated into the complaint by reference.” Smith v. United 

States, 561 F.3d 1090, 1098 (10th Cir. 2009). For Plaintiff to survive the motion to dismiss, this 

Court need only find that the complaint contains sufficient factual allegations to “state a claim to 

relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). And claims 

have facial plausibility when they plead factual content that allows this Court to draw reasonable 

inferences that the defendant is liable for the actions alleged. Bell Atlantic Corp. v. Twombly, 

550 U.S. 544, 556 (2007). 

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2. The FEC’s Deep-Seated Confusion Over its Own Regulations

Consistent with its earlier pleadings, the FEC goes to great lengths to market its massive 

regulatory regime as merely “disclosure.” As explained by the FEC, since eight Justices decided 

that entirely different disclosure requirements for wholly different disclosure laws were upheld in 

Citizens United v. FEC, all other disclosure laws should henceforth be upheld. Def.’s Mem. 

(Docket No. 34) at 2. But the FEC fails to admit that all systems of disclosure are not the same. 

Plaintiff steadfastly reaffirms that unwieldy regulatory programs that even the FEC cannot 

understand plainly violate the protection of the First Amendment.

a. Labeling a Bizarre and Massive Regulatory Program Mere “Disclosure” 

Does not Make it So

Looking past the simplistic veneer of the FEC’s argument that all disclosure is disclosure 

and that all disclosure is valid illustrates critical faults in defendant’s arguments. Plaintiff is 

trapped within a regulatory maze constructed by the FEC that even the Commission itself cannot 

escape. Whatever this system may be, it is not mere disclosure. This causes real injuries for 

prospective speakers, especially when speakers ask the FEC for prior permission to speak and 

the agency offers but a shrug.1 

Although the FEC suggests anyone may speak freely under the current regime, few 

grassroots groups would be willing to take it up on this handy offer. See Transcript of Sep. 12, 

2012 hearing in Free Speech v. FEC at 25 (“Ms. Chlopak: To be clear, plaintiff is free to run 

each of its proposed ads and more and to solicit and spend unlimited sums of money to pay for 

them”), 35 (“The Court: But it’s not a grant of immunity. Ms. Chlopak: It is not a grant of 

 

1 As noted elsewhere by Plaintiff, this reasoning is not somehow peculiar to Citizens United. 

Whenever government creates shifting, undeterminable, and overbroad regulatory programs that 

stifle speech, it is the appropriate judicial response to strike or limit their applicability. It matters 

not whether the regulatory mission involves potentially obscene speech, potentially defamatory 

speech, potentially injurious speech, or potentially campaign-related speech. See, e.g., Bantam 

Books v. Sullivan, 372 U.S. 58 (1963); Interstate Circuit v. Dallas, 390 U.S. 676 (1968); New 

York Times Co. v. Sullivan, 376 U.S. 254 (1964); Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 

(1988); Federal Communications Comm’n v. Fox Television Stations, Inc., 132 S. Ct. 2307

(2012); Buckley v. Valeo, 424 U.S. 1 (1976). What matters is that government is never permitted 

to work these evils in the first place. 

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immunity. That’s correct.”). Speakers who guess incorrectly about whether their speech 

contains an undefined “electoral portion” or a mysterious “external event” (both likely subject to 

regulation) face the “heavy costs of defending against FEC enforcement.” Citizens United v. 

FEC, 130 S. Ct. 876, 895 (2010). But, the FEC argues, this is merely “disclosure,” something 

we should all celebrate, and a reason to dismiss this suit. This then begs the question: what is 

“disclosure”?

The FEC does not operate a simplistic one-size-fits-all disclosure program. Within the 

FEC’s separate rules of disclosure for 33 different types of political speech (applied to some 71 

different types of legal entities) rests an array of disclosure regimes. Id. Speaking about 

disclosure as if it existed in the singular is like suggesting poison ivy is fairly representative of 

all plants since “plants are plants.” Rather, the term “disclosure” involves a wide collection of 

sub-types of disclosure, just as plants involve detailed sub-types and variations. Attention to 

these details is critical in either instance. Many medical professionals would approve of rubbing 

an aloe plant on a burn wound to speed recovery. Few would endorse rubbing poison ivy on the 

same. Similarly, the (electioneering communications) disclosure regime at issue in Citizens 

United is an example of one disclosure sub-type deemed acceptable due to its easily understood 

and applied provisions. Id. at 913–16. That the Supreme Court approved one sub-type of 

disclosure does not mean all forms of disclosure were approved. See Pl.’s Mem. in Support of 

Preliminary Injunction Motion (Docket No. 20) at 19 n.10. 

As Plaintiff demonstrated in its earlier pleadings, for purposes of this lawsuit the FEC 

maintains three very distinct regulatory regimes for political speakers.2 

i. Three Categories of Regulated Speech with Very Different Regulatory 

and Constitutional Requirements

 

2

See, e.g., First Am’d Ver. Compl. (Docket No. 24) at ¶¶47–49 (detailing PAC requirements), 

¶50 (detailing reporting requirements for independent expenditures and electioneering 

communications and the resulting confusion of how to report them under the current regime),

¶61 (detailing PAC problems), ¶¶71–79 (detailing express advocacy speech standards and 

triggers), ¶¶97–106 (detailing PAC status problems and major purpose test uncertainties). 

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The first regulatory regime involves electioneering communications at controversy in 

McConnell v. FEC, Wisconsin Right to Life (WRTL), and Citizens United. See 2 U.S.C. § 

434(f)(3)(A). As explained by Chief Justice Roberts in WRTL, electioneering communications 

are different from expenditures (and less burdensome to comply with) because electioneering 

communications offer brightline rules about the scope of regulation up front. In footnote seven

of that case, the Chief Justice, responding to Justice Scalia’s criticism, explained that any test for 

deciding regulable electioneering communications must “meet[] the brightline requirements of 

BCRA 203 in the first place.” FEC v. Wisconsin Right to Life, Inc., 551 U.S. 449, 474 n.7 

(2007). Chief Justice Roberts reached this conclusion because electioneering communications 

only implicate speech that: (a) occurs within 30 or 60 days of an election, (b) is targeted to 

50,000 people or more, (c) is carried by specific types of media (broadcast, television, and more), 

and (d) which mention a clearly identified candidate. See 2 U.S.C. § 434(f)(3)(A)(i). Absent 

meeting these factors, speech is not regulated as an electioneering communication. In addition, 

the electioneering communications regime offers a relatively simple one-time reporting 

requirement that only takes effect at spending levels in the aggregate of $10,000 unless 

communications are made within 24 or 48 hours of an election. When individuals do file, they 

file “Form 9” which is all of four pages, and the related instructions are five pages in length. The 

electioneering communications provisions, importantly, do not impose political committee 

status. They do not impose sophisticated organizational demands, the assumption of heavy 

regulatory burdens, or the like. They involve, instead, simple one-time reporting for 

communications. This is mere “disclosure.”

3

The second regulatory regime found at the FEC involves independent expenditures with 

reporting filed by non-PAC entities or persons. These filers file “Form 5” with the FEC—a 

 

3

This is precisely the point the en banc Eighth Circuit recently made as well, noting that 

requiring “one-time disclosure only when a substantial amount of money was spent—matched 

the government’s disclosure purpose” and ongoing reporting, organizational changes, and other 

related PAC burdens (treasurer, specific recordkeeping, segregated funds, and more) went 

beyond the government’s disclosure purpose and proved too burdensome as a matter of law. See 

Minnesota Citizens Concerned for Life, Inc. v. Swanson, 2012 WL 3822216 (8th Cir. 2012). 

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relatively easy form asking what type of independent expenditures were made (supporting or 

opposing which candidate in what amount) and contributions received (how much and from 

whom). Form 5 totals two pages and its instructions only require three pages. This second 

regulatory regime is what the Massachusetts Citizens for Life Court recognized as 

constitutionally appropriate disclosure because it met the government interest in providing 

information to the electorate without being too burdensome for speakers. FEC v. Mass. Citizens 

for Life, Inc. (MCFL), 479 U.S. 238, 252–53 (1986) (detailing the differences between non-PAC 

reporting requirements appropriately tailored to the government interest at hand and intrusive 

PAC requirements going beyond these), 266 (O’Connor, J., concurring) (“In my view, the 

significant burden on MCFL in this case comes not from the disclosure requirements that it must 

satisfy, but from the additional organizational restraints imposed upon it by the Act”). Notably, 

Form 5 is not challenged by Free Speech other than its need to know what speech is considered 

an “independent expenditure.” This regime, too, is mere “disclosure.”

The third relevant regulatory regime overseen by the FEC involves political committee 

status. See Pl.’s Mem. (Docket No. 20) at 30–32; First Am’d Ver. Compl. (Docket No. 24) at ¶¶ 

43–49, 97–106. This is the regulatory regime identified by Justice Kennedy in Citizens United, 

writing for the majority, where he explained that “PACs are burdensome alternatives; they are 

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

appoint a treasurer, forward donations to the treasurer promptly, keep detailed records of the 

identities of the persons making donations, preserve receipts for three years, and file an 

organization statement and report changes to this information within 10 days.” 130 S. Ct. at 897. 

This is also the regulatory regime criticized by the MCFL Court because it “may create a 

disincentive for such organizations to engage in political speech. Detailed record-keeping and 

disclosure obligations, along with the duty to appoint a treasurer and custodian of the records, 

impose administrative costs that many small entities may be unable to bear. Furthermore, such 

duties require a far more complex and formalized organization than many small groups could 

manage.” 479 U.S. at 254–55. Political committees file Form 3, which is 10 pages in length in 

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its most basic form, and its instructions come in at some 20 pages. The FEC’s informal guide for 

political committees takes up 124 pages. This is not mere “disclosure.”

Of the three sub-types of disclosure and related regulatory burdens discussed here, 

Plaintiff challenges the third—political committee status. Defendant confuses and conflates all 

three sub-types of disclosure into one, asserting that any government program advancing 

“disclosure,” no matter how onerous, is constitutionally sound. While the FEC attempts to argue 

that disclosure imposes no serious limits on First Amendment freedoms, see Def.’s Mem. 

(Docket No. 34) at 2, the MCFL Court carefully explained that any regulatory requirements 

reaching beyond the basic informational interests found in Form 5 were constitutionally invalid

for issue advocacy groups. 479 U.S. at 255 n.7 (“the administrative costs of complying with 

such increased responsibilities may create a disincentive for the organization itself to speak” and 

“while 441b does not remove all opportunities for independent spending by organizations such 

as MCFL, the avenue it leaves open is more burdensome than the one it forecloses. The fact that 

the statute's practical effect may be to discourage protected speech is sufficient to characterize 

441b as an infringement on First Amendment activities.”). The FEC’s current regulatory 

structure and practices impose the very same PAC burdens the MCFL and Citizens United Courts 

warned about against anyone whose speech seems or feels too “electoral.” Still, the FEC assures 

us this is mere “disclosure.” It is not.

ii. The FEC: Censorship with a Smile

If not mere “disclosure,” what rests before this Court? The challenged system is nothing 

short of the nation’s farthest-reaching and most effective system of prior restraint. These 

programs pop up from decade to decade before the federal courts and are routinely stricken, no 

matter if the regulators’ intent is to protect the children, save the nation’s morals, or shut down 

grassroots speech to purify politics. Each program ignores the firm assurance of the First 

Amendment that speakers may express themselves in loud, tasteless, reserved, or profound 

ways—all without the intervention of speech bureaucrats to approve, license, or sanction their 

speech. 

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Like the film censorship program at issue in Freedman v. Maryland, 380 U.S. 51 (1965), 

the absence of procedural safeguards means that the FEC’s regime “necessarily produce[s] a 

result which the State could not command directly. It can only result in a deterrence of speech 

which the Constitution makes free.” Speiser v. Randall, 357 U.S. 513, 526 (1958). Here, speech 

remains trapped and entangled for months while the Commission continues to shrug and offer no 

guidance for understanding the challenged regulations and policies. If Free Speech speaks it will 

remain subject to the very real criminal and civil enforcement penalties overseen by the FEC and 

Department of Justice. This is not mere “disclosure.” This is speech suppression. 

Like the anti-obscenity program at issue in Bantam Books, Inc. v. Sullivan, 372 U.S. 58 

(1963), the mere act of classifying speech even without “direct regulatory or suppressing 

functions” constitutes a system of informal censorship. Interstate Circuit, Inc. v. City of Dallas, 

390 U.S. 676, 689 n.19 (1968). This is because systems like the one here “provide[] no 

safeguards whatever against the suppression of [non-regulable speech], and therefore 

constitutionally protected, matter.” Bantam Books, 372 U.S. at 70. All they can offer is the 

promise that if citizens bow in compliance to the state, all will be satisfactory. This is not mere 

“disclosure.” This is speech suppression. 

Like the film licensing program reviewed in Interstate Circuit, the FEC maintains a 

stalwart system of speech licensing while never understanding that it licenses speech. The 

problem in just such a situation is that if a speaker is “unable to determine what the ordinance 

means, he runs the risk of being foreclosed, in practical effect, from a significant portion of the [] 

public. Rather than run that risk, he might choose nothing but the innocuous” to communicate. 

390 U.S. at 684. Here, Free Speech might be “free” to communicate as often and as loudly as it 

likes about ranching in general, but if it gets too close to “external events” related to the Obama 

or Romney presidential campaigns, problems arise. Of course, no one knows what those 

“external events” may be. If Free Speech dares to communicate about ranching and includes

direct references to the Obama or Romney candidacy, the risk gets even higher. If Free Speech 

removes all salient information from its advertisements and strips them down to “nothing but the 

innocuous,” its speech is perhaps free, but bland. To the “extent that vague standards do not 

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sufficiently guide the censor, the problem is not cured merely by affording de novo judicial 

review. Vague standards, unless narrowed by interpretation, encourage erratic administration

whether the censor be administrative or judicial; ‘individual impressions become the yardstick of 

action, and result in regulation in accordance with the beliefs of the individual censor rather than 

regulation by law.’” Id. at 685, citing Kingsley Int’l Pictures Corp. v. Regents, 360 U.S. 684, 

701 (1959) (Clark, J., concurring) (emphasis added). 

The FEC is a commission defined by its penchant for erratic administration. And that is 

what this Court is left with: not a rosy system of “disclosure” for the American public; not a 

system of easily understood and applied regulations; not a system understood by even the FEC 

itself. What is before this Court is the nation’s largest system of prior restraint, deserving relief, 

not dismissal.

iii. Precedent and the Constitution do not Permit Unreasonably-Defined 

and Impossible-to-Comply-With Laws

While the FEC attempts to cabin Citizens United as simply a case about bans on 

corporate speech, a greater truth emerges. True enough, part of the evils remedied in the FEC’s 

loss in Citizens United involved corporations being banned from speaking and their inability to

solicit support for political speech from their members. The FEC would have this Court believe 

that is the end of the story. It is not.

What preceded Citizens United are principles of import. This is because they illustrate 

what grassroots have been fighting against for more than 30 years—government efforts to shut 

down speech, advertently or inadvertently. Recall that in MCFL, the Supreme Court explained 

that small groups would curtail and limit their speech because of the overbroad application of 

political committee provisions to them. MCFL, 479 U.S. at 254–55. But this was not just 

because a corporate ban was in place. Rather, the plurality, with Justice O’Connor joining in 

concurrence, reasoned something more significant. This realization is that unless attendant 

constitutional protections are in place, PAC status imposes a whole host of regulatory burdens on 

issue advocacy groups that are unsupportable by any government interest in disclosure. Consider 

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the following excerpts from MCFL with unsupportable burdens identified by bolded numbers in 

brackets for easy identification. 

This means that MCFL must comply with several requirements in addition to 

those mentioned. Under 432, it must [1] appoint a treasurer, 432(a); [2] ensure 

that contributions are forwarded to the treasurer within 10 or 30 days of 

receipt, depending on the amount of contribution, 432(b)(2); [3] see that its 

treasurer keeps an account of every contribution regardless of amount, [4] the 

name and address of any person who makes a contribution in excess of $50, 

[5] all contributions received from political committees, [6] and the name and 

address of any person to whom a disbursement is made regardless of amount, 

432(c); [7] and preserve receipts for all disbursements over $200 and all 

records for three years, 432(c), (d). Under 433, MCFL must [8] file a 

statement of organization containing its name, address, the name of its 

custodian of records, and its banks, safety deposit boxes, or other depositories, 

433(a), (b); [9] must report any change in the above information within 10 

days, 433(c); [10] and may dissolve only upon filing a written statement that it 

will no longer receive any contributions nor make disbursements, and that it 

has no outstanding debts or obligations, 433(d)(1).

Under 434, MCFL must file either monthly reports with the FEC or reports on 

the following schedule: [11] quarterly reports during election years, [12] a 

pre-election report no later than the 12th day before an election, [13] a 

postelection report within 30 days after an election, and [14] reports every 6 

months during nonelection years, 434(a)(4)(A), (B). These reports must 

contain information regarding the [15] amount of cash on hand; [16] the total 

amount of receipts, detailed by 10 different categories; [17] the identification 

of each political committee and candidate's authorized or affiliated committee 

making contributions, [18] and any persons making loans, providing rebates, 

refunds, dividends, or interest or any other offset to operating expenditures in 

an aggregate amount over $200; [19] the total amount of all disbursements, 

detailed by 12 different categories; [20] the names of all authorized or 

affiliated committees to whom expenditures aggregating over $200 have been 

made; [21] persons to whom loan repayments or refunds have been made; [22] 

the total sum of all contributions, operating expenses, outstanding debts and 

obligations, and the settlement terms of the retirement of any debt or 

obligation. 434(b). In addition, MCFL may solicit contributions for its 

separate segregated fund [23] only from its “members,” 441b(b)(4)(A), (C), 

which does not include those persons who have merely contributed to or 

indicated support for the organization in the past.

MCFL, 479 U.S. at 253–54.

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The MCFL Court lists twenty-three constitutionally relevant burdens to explain why 

imposing PAC status on issue organizations is inappropriate. Following Citizens United, the 

corporate bans have been lifted, making PAC status one factor less burdensome. The FEC

proclaims freedom when twenty-two unconstitutional restraints against First Amendment 

liberties remain in place. Twenty-two regulations guaranteed to stifle, suffocate, and bury 

grassroots groups in regulatory red tape. There are at least twenty-two reasons this is not a 

system of mere “disclosure” and which support invalidation of the challenged regime that 

arbitrarily places PAC status on grassroots groups like Free Speech.

The truths of MCFL did not end there. Citizens United reiterated these truths when the 

FEC argued to the Supreme Court that PACs are easy-to-operate organizations that impose no 

burdens against speakers—the same argument it is making here. After suffering a loss in WRTL

and being chastised by the Court for crafting lengthy and complicated speech codes, the 

Commission went back to the drawing board and invented a “two-part, 11-factor balancing test” 

to decide regulable speech. Citizens United, 130 S. Ct. at 895. This test shifted the 

determination of how to comply with federal election law from average citizens, as the First 

Amendment commands, to political professionals. And it relied on hunches, intuition, and the 

shifting feelings of speech bureaucrats to decide the scope of its regulatory authority. These 

evils remain wrong regardless the title of the regulatory program being challenged. That the 

FEC continues these trends in other areas of regulation is the very issue before this Court—and 

an issue very much in need of adjudication, not dismissal. 

What matters most here is the ability of grassroots groups of any political stripe 

nationwide to get out and share their views. Under the current regime, they cannot. As Justice 

Kennedy explained in Citizens United, even the demand to form PACs does not alleviate First 

Amendment problems. “PACs are burdensome alternatives; they are expensive to administer 

and subject to extensive regulations.” Citizens United, 130 S. Ct. at 897. These truths continue 

to be recognized everywhere except the FEC. And these truths exist as a matter of law by the 

Supreme Court, not as conjecture by Free Speech’s counsel.

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In the present case, disclosure is not disclosure any more than poison ivy is an aloe plant. 

Dressing up bizarre and incomprehensible regulatory systems as mere disclosure still leaves a 

constitutional injury ripe for meaningful relief by this Court. Thus, ensuring that the relevant 

regulatory triggers that invoke PAC status are objective and have some semblance of clarity is a 

constitutional imperative—ensuring that small groups and average Americans can easily comply 

with the law. 

b. 100.22(b) Offers no Sensible Guidance

“The challenged regulation . . . defines ‘expressly advocating’ and thus provides 

guidance on whether a communication is an ‘independent expenditure’ subject to statutory 

disclosure requirements.” Def.’s Mem. (Docket No. 34) at 2. The FEC cannot point to decades 

of enforcement matters and dizzying “Explanations and Justifications” for its rules and consider 

it “guidance.” But that is exactly what the FEC means when it argues that section 100.22(b) is a 

model of clarity and guidance. Never mind that the Commission itself could not articulate a 

single, sensible understanding of the regulation when asked to do so through the advisory 

opinion process.

Section 100.22(b) matters because it operates to define which speech counts towards a 

finding of PAC status and when disclaimer and reporting obligations are incurred for speech. 

Absent clear definitions here, the FEC can only expect that all speakers will bow in compliance 

for all speech by including disclaimers and complying with its reporting obligations. Of course, 

the FEC cannot even agree on which reporting obligations are triggered for speech, leaving 

speakers again at the mercy of the FEC to decide if it picked the correct reporting form (Form 3, 

5, or 9). First Am’d Ver. Compl. (Docket No. 24) EXHIBIT K at 5–11; Transcript of Sept. 12, 

2012 hearing in Free Speech v. FEC at 45.

Disclosure requirements going beyond simple reporting to political committee 

registration and reporting (PAC Status) are a substantial burden on political speech that cannot 

be imposed upon issue advocacy organizations. MCFL, 479 U.S. at 255–56; Citizens United, 

130 S.Ct. at 897. Thus, issue advocacy organizations must be subject only to brightline 

regulations that allow them to know the boundaries between regulated and unregulated speech. 

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This is important for two reasons. First, speakers unable to afford complicated PAC compliance 

measures must be able to tailor their speech to remain outside of its ambit. Second, brightline 

rules offer guidance about how to comply with the law once speaking. Absent objective, 

brightline rules, speakers are subject to the swaying mercy of the FEC, who may launch 

investigations and enforce penalties for violation of the law.

The FEC argues that § 100.22(b)—the PAC status linchpin—is not vague or overbroad, 

yet asserts that the regulation “provides guidance” for determining express advocacy. Def.’s 

Memo at 2 (Docket No. 34). Although § 100.22(b) works in conjunction with § 100.22(a), this is 

not the full scope of the FEC’s “guidance.” In order to understand § 100.22(b), the FEC expects 

Free Speech and similarly situated groups to read thousands of pages of previous enforcement 

matters. “Political Committee Status,” 72 Fed. Reg. 5595, 5596 (Feb. 7, 2007); MUR 6073 

(Patriot Majority 527s), First General Counsel Report at 9 (FEC 2009) (“developments in the law 

. . . include[] the distillation of the meaning of ‘expenditure’ through the enforcement process . . . 

.”). These faults were detailed at length in Plaintiff’s First Amended Verified Complaint and 

Memorandum in Support of Preliminary Injunctive Relief. Docket No. 24 at ¶¶ 76–77; Docket 

No. 20 at 18 n. 9. However, even with the benefit of its rich history of “distillation,” the FEC 

could not sufficiently answer any of Free Speech’s key questions in its advisory opinion 

process. See First Am’d Ver. Compl. (Docket No. 24) EXHIBIT G. The FEC’s only course of 

argument, then, is to suggest that there are no resulting burdens in PAC status thus somehow 

curing the vagueness and overbreadth inherent in the reach of § 100.22(b).

Maintaining a regulation that: (a) goes beyond the Commission’s statutory authority, 

see Maine Right to Life Committee v. FEC, 914 F. Supp. 8 (D. Me. 1995), aff'd per curiam, 98 

F.3d 1 (1st Cir. 1996); Right to Life of Duchess Co., Inc. v. FEC, 6 F. Supp. 2d 248 (S.D.N.Y. 

1998), (b) violates basic notions of vagueness and overbreadth protection, Broadrick v. 

Oklahoma, 413 U.S. 601, 615–18 (1973); Buckley, 424 U.S. at 41–44, (c) attach criminal and 

civil penalties for its violation, 2 U.S.C. § 437g(d), that (d) even the FEC itself cannot explain 

how to comply with cannot be deemed permissible in light of the protection of the First 

Amendment. See First Am’d Ver. Compl. (Docket No. 24) at ¶¶ 31–42.

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c. Political Committee Status Changes Day by Day

The FEC claims that its “case-by-case approach to determining whether a group is a

‘political committee’ comports with the Supreme Court’s requirement that such groups have the 

‘major purpose’ of nominating or electing a federal candidate.” Def.’s Mem. (Docket No. 34) at 

3. Free Speech did not “agree[]” with FEC regarding the major purpose test. Id. at 3–4. What it 

argued was that the Commission does not enjoy standardless discretion to launch fact-intensive 

inquiries. Immediately following the sentence the FEC quotes is the distinction: “[T]here must 

be comprehensible standards that guide this fact-intensive inquiry.” Pl.’s Mem. (Docket No. 20) 

at 33 (emphasis added). Free Speech cited myriad “facts” relied on by the FEC over the years 

that leave the test vague and overbroad. Id. at 34. The FEC only defends this case-by-case, factintensive approach broadly, and once again expects the test itself to be understood with the help 

of hundreds of pages of previous enforcement matters. Def.’s Mem. (Docket No. 26) at 33–

34, citing 72 Fed. Reg. at 5,595 (“several recently resolved administrative matters . . . provide 

considerable guidance to all organizations regarding . . . political committee status.”). But the 

record informs this Court that the “facts” referenced are so far-reaching that the major purpose 

test is but a vague and overbroad formality to imposing PAC status on any organization passing 

the expenditure threshold that is itself dependent on the vague and overbroad section 100.22(b). 

What this Court is left with is a cleverly disguised system that allows speech bureaucrats to 

decide, by whim, which groups are regulated (extensively) and which go free. 

Furthermore, Free Speech’s as-applied challenge to major purpose makes this even more 

apparent. Free Speech discussed a “fact” utilized by three FEC commissioners during Free 

Speech’s advisory opinion request. Three commissioners believed that Free Speech’s issue 

advocacy that “will attack or oppose a clearly identified Federal candidate” would be counted 

toward a PAC finding when determining major purpose. Pl.’s Mem. (Docket No. 20) at 35, 

citing Ver. Compl. (Docket No. 1) EXHIBIT C at 24. In other words, issue-advocacy 

organizations may be PACs when they engage in issue advocacy if that speech is just a bit too 

strong or attacks too much. The FEC does not counter this overbroad application of the test to 

Free Speech. Instead, it simply insists that this limitless test falls under the scope of discovering 

Case 2:12-cv-00127-SWS Document 39 Filed 10/02/12 Page 14 of 20
14

a “central organization purpose.” Def.’s Mem. (Docket No. 26) at 35, citing Colorado Right to 

Life Cmte. v. Coffman, 498 F.3d 1137, 1152 (10th Cir. 2007). The FEC also continues to 

reiterate its justification for mere “disclosure,” and takes the constitutionality of “major purpose” 

as carte blanche to impose PAC status on any and all political associations for any reason, 

ignoring the heavy burdens that come with it. However, these burdens remain substantial, and 

law must be understandable for groups like Free Speech that wish to avoid such burdens. 

d. No Agreement About Solicitations

The FEC claims that “the Commission’s policies for determining whether a group is a 

political committee and whether a request for donations solicits regulable ‘contributions’ each 

implicate only disclosure requirements.” Def.’s Mem (Docket No. 34) at 2. Free Speech reasserts that PAC status implicates not “only” disclosure requirements, and goes far beyond the 

least restrictive means that could serve the governmental interest in informing the public. 

MCFL, 479 U.S. at 262 (“The state interest in disclosure . . . can be met in a manner less 

restrictive than imposing the full panoply of regulations that accompany status as a political 

committee under the Act.”)

Prior to its motion to dismiss, the FEC asserted that “Plaintiff fails to identify any flaw in 

Advisory Opinion Draft B’s analysis” and argues that the two ads identified in Draft B as 

“solicitations” meet the test of Survival Education Fund. Def.’s Mem. (Docket. No. 26) at 39;

see FEC v. Survival Education Fund, Inc., 65 F.3d 285 (2d Cir. 1995); see also First Am’d Ver. 

Compl. (Docket No. 24), EXHIBIT C at 18, 20–21. Free Speech disagrees, and half the 

Commission disagreed as well. Pl.’s Mem. (Docket No. 20) at 36; First Am’d Ver. Compl. 

(Docket No. 24) at ¶¶ 86–96; Id., EXHIBIT D at 38–40, 42–43. After considering the “War 

Chest” donation request, three commissioners concluded in Advisory Opinion Draft C that its 

“language is a far cry from the language present in Survival Education Fund . . . .” Id., 

EXHIBIT D at 39. Regarding the “Make Them Listen” request, these three commissioners drew 

the same conclusion. Id., EXHIBIT D at 42–43. The history of the “solicitation” standard 

illustrates its facial vagueness and overbreadth; the opposing conclusions of the Commission 

when applying it to Free Speech establish its as-applied unconstitutionality.

Case 2:12-cv-00127-SWS Document 39 Filed 10/02/12 Page 15 of 20
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To say there is agreement between the Draft B bloc of FEC commissioners and the 

Plaintiff is seriously wrong.4 As noted in Plaintiff’s First Amended Verified Complaint, one set 

of commissioners explained that how one understands what constitutes a solicitation is through 

toiling through lengthy conciliation agreements and General Counsel Reports issued by the FEC 

in enforcement matters. See First Am’d Ver. Compl. (Docket No. 24) EXHIBIT C at 17–18 n.6. 

This same set of commissioners explained that even though EMILY's List struck § 100.57 as 

unconstitutional, “nothing in the opinion undermined the general premise that a solicitation that 

indicates that donated funds will be used to support or oppose the election of a clearly identified 

candidate results in ‘contributions.’” Id.; see First Am’d Ver. Compl. (Docket No. 24) at ¶93; 

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

Like the other challenged provisions, the FEC’s solicitation “standard” lacks basic clarity 

and guidance for interested persons to tailor their activities in compliance with the law. This has 

been adequately documented and argued through this case and remains relevant for the 

adjudication of this dispute. First Am’d Ver. Compl. (Docket No. 24) at ¶¶ 86–96. 

3. Plaintiff Properly Alleged its Claims

The FEC moves on to allege that if this Court does not agree with its views on the 

substance of the law, the complaint should still be dismissed without prejudice. See Def.’s Mem.

(Docket No. 34) at 4–5. Additionally, it argues that Plaintiff did not sufficiently distinguish its 

as-applied and facial challenges. Rule 8 provides that parties make only “a short and plain 

statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). 

Beyond being “short and plain,” a pleading must be specific enough to “give the defendant fair 

notice of what the plaintiff’s claim is and the ground upon which it rests.” Conley v. Gibson, 355 

U.S. 41, 47 (1957). Consistent with the Federal Rules of Civil Procedure, pleadings chocked full 

 

4 As discussed in oral argument on Plaintiff’s request for preliminary injunctive relief, attorneys 

for the FEC seem to be representing half the FEC commissioners. Transcript of Sept. 12, 2012 

hearing in Free Speech v. FEC at 13–14. In this matter, three commissioners agreed upon one 

set of broad regulatory principles (represented in the Draft B Advisory Opinion, First Am’d Ver. 

Compl. (Docket No. 24) EXHIBIT C) and another three agreed on constitutionally limited 

regulatory principles (represented in the Draft C Advisory Opinion, Id. at EXHIBIT D). 

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of simplified “labels and conclusions” or containing “a formulaic recitation of the elements of a 

cause of action will not do.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), citing Bell Atlantic 

Corp. v. Twombly, 550 U.S. 544, 555 (2007). 

To support its claims, the FEC cites wild cases often filed by pro se litigants to suggest 

Plaintiff’s First Amended Verified Complaint should be dismissed. For example, the FEC cites 

Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158 (10th Cir. 2007)—a case involving a 

state inmate who named “at least 20 individual defendants, as well as scores of John and Jane 

Doe defendants, in a 42-page complaint that is, through much of the document, often difficult to 

comprehend.” Id. at 1160. Or consider Mann v. Boatright, 477 F.3d 1140 (10th Cir. 2007), 

where the court explained that nowhere in “her 99-page, single-spaced pleading could we find ‘a 

short and plain statement of the claim showing that [she] is entitled to relief.’” Id. at 1147, citing

Fed. R. Civ. P. 8(a). After tilting at pro se windmills, the Commission then argues that it would 

be “prejudiced by having to respond to each of plaintiff’s irrelevant allegations and its ‘wordy 

and unwieldly’ characterizations of fact and law.” Def.’s Mem. (Docket No. 34) at 5, citing

Nasious, 492 F.3d at 1162. 

In the vast arena of election law, complicated and cumbersome regulatory codes have 

become the norm. See, e.g., McConnell v. FEC, 251 F. Supp. 2d 176, 209 (D.D.C. 2003) 

(detailing a record over 100,000 pages in length to challenge BCRA provisions of the FECA); 

Citizens United, 130 S. Ct. at 896–96 (detailing the prolix and cumbersome nature of federal 

election law). That complicated and prolix laws seem to be in fashion stems from the actions of 

the Congress and the FEC, not the Plaintiff. Free Speech must wade through these unfortunate 

complexities and boil them down to discernible claims while providing adequate notice to the 

FEC. That proves to be no easy task. Argue too little, as the appellants in Real Truth About 

Abortion v. FEC did, and the reviewing court may find deficiencies in the stated claims 

necessary for relief. 681 F.3d 544, 558 n.5 (4th Cir. 2012). Argue just enough and the FEC 

complains about having to respond to too much information. Fortunately, the Tenth Circuit, like 

many other circuits, embraces liberal rules of pleading, allowing the FEC to use summary 

judgment to “avoid expensive trials and frivolous claims” if it believes Plaintiff’s claims are 

Case 2:12-cv-00127-SWS Document 39 Filed 10/02/12 Page 17 of 20
17

without merit. New Home Appliance Ctr., Inc. v. Thompson, 250 F.2d 881, 883 (10th Cir. 1957). 

Plaintiff has alleged legally cognizable claims with particularity meeting the requirements of the 

Federal Rules of Civil Procedure.

The FEC may not enjoy having to respond to the mountain of complexity it has created,

but it is obligated to do so. Free Speech’s Complaint contains evidence of a regulatory system so 

unbound from the rule of law that it consistently violates protected First Amendment rights. See

First Am’d Ver. Compl. (Docket No. 24) at ¶¶ 70–106. These facts are relevant to a finding of 

facial unconstitutionality. Contained in Free Speech’s Complaint, as detailed herein, is evidence 

of the good faith efforts of Plaintiff to comply with its administrative remedies and the utter 

chaos produced by the FEC in doing so. Id. at ¶¶ 31–42. These facts are relevant to a finding of 

as-applied unconstitutionality. Contained in Free Speech’s Complaint are fair notices of the 

legal claims attendant to several complicated areas overseen by the FEC and accurately divided 

into separate areas for ease of review:

 Challenges to 11 C.F.R. 100.22(b), facially and as-applied;

 Challenges to the FEC’s political committee status practices, facially and as-applied;

 Challenges to the FEC’s use of the “Major Purpose Test,” facially and as-applied.

 Challenges to the FEC’s determination of a “solicitation,” facially and as-applied.

 A Challenge to the entirety of these practices as an invalid prior restraint.5

Thus, Plaintiff has alleged four specific claims in its First Amended Verified Complaint. Each 

details relevant facts to support as-applied and facial claims. As-applied claims thoroughly 

describe the nature of Free Speech’s attempt to obtain clarity with the FEC’s operations below 

and include, in exhaustive detail, copies of relevant proceedings demonstrating its good faith 

intent to do so. Facial claims include relevant administrative evidence of the regular practices 

and policies of the FEC connected to these claims. Plaintiff is obliged to brief this Court on 

relevant legal claims and evidence, even when complicated, supporting them to survive the 

 

5

Each of these regulatory subsystems interact to compromise an entire system. Plaintiff neatly 

dissects each section individually but also illustrates to this Court how they operate in tandem, as 

is necessary to make a complete showing in this case.

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18

pleading requirements of the Federal Rules of Civil Procedure. Because it has done so, no 

dismissal is appropriate here.

CONCLUSION

For the forgoing reasons, Plaintiff requests that this Court deny defendant’s Motion to 

Dismiss.

Dated: October 2, 2012

/s/ Stephen R. Klein

Stephen R. Klein

Wyoming Liberty Group

1902 Thomes Ave

Ste. 201

Cheyenne, WY 82001

307.632.7020 [Tel.]

307.632.7024 [Fax.]

stephen.klein@wyliberty.org

Benjamin T. Barr

10737 Hunting Lane

Rockville, MD 20850

202.595.4671 [Tel.]

benjamin.barr@gmail.com

Jack Speight (Wyoming Bar 

No. 4-0983)

4021 Snyder Ave

Cheyenne, WY 82001

307.635.1239 [Tel.]

jbspeight@gmail.com

Case 2:12-cv-00127-SWS Document 39 Filed 10/02/12 Page 19 of 20
CERTIFICATE OF SERVICE

I hereby certify that on October 2, 2012, I the below listed persons received copies of this 

document by electronic mail via Electronic Case Filing pursuant to Fed. R. Civ. P. 5(b)(2)(E):

Anthony Herman

Federal Election Commission

aherman@fec.gov

Erin Chlopak

Federal Election Commission

echlopak@fec.gov

David Kolker

Federal Election Commission

dkolker@fec.gov

Lisa Stevenson

Federal Election Commission

lstevenson@fec.gov

Nicholas Vassallo

United States Attorney’s Office

nick.vassallo@usdoj.gov

/s/ Stephen Klein________________

Stephen Klein 

Case 2:12-cv-00127-SWS Document 39 Filed 10/02/12 Page 20 of 20