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Boyd Wiggam (Wyoming Bar # 6-4059)

WYOMING LIBERTY GROUP

1902 Thomes Ave. 

Ste. 201

Cheyenne, WY 82001

(307) 632-7020 [Tel.]

(307) 632-7024 [Fax]

boyd.wiggam@wyliberty.org

UNITED STATES DISTRICT COURT

DISTRICT OF WYOMING

UNNAMED PLAINTIFF #1,

UNNAMED PLAINTIFF #2, 

PILLAR OF LAW INSTITUTE,

Plaintiffs,

v.

FEDERAL ELECTION COMMISSION

Defendant.

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C.A. No. 16-CV-135-S

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PLAINTIFFS’ REPLY BRIEF TO MEMORANDUM IN OPPOSITION 

TO MOTION FOR PRELIMINARY INJUNCTION

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1. Introduction

On June 17, 2016, the Defendant Federal Election Commission (“FEC”) filed its 

Opposition to Plaintiffs’ Motion for Preliminary Injunction. Doc. No. 18. On that same day, this 

Court ordered Plaintiffs to file an Expedited Reply Brief to Defendant’s Opposition. Doc. No. 19.

Since the FEC has relied on particular advisory opinions and precedent that would permit 

Plaintiffs to engage in their course of conduct, no oral argument or consideration of Plaintiffs’ 

request for injunctive relief is required at this time. 

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2. The FEC’s Position That Certain Advisory Opinions Will Protect In-Kind Donations 

and that Pillar’s Delegate Scholarships Are Protected Under Massachusetts Citizens 

for Life Sufficiently Protects Plaintiffs’ First Amendment Rights

Although the FEC describes Plaintiffs’ case as a “lawsuit in search of an enforcement 

threat,” FEC advisory opinions and practice support the recognition of Plaintiffs’ injury in this 

case. Defendant Federal Election Commission’s Opposition to Plaintiff’s Motion for Preliminary 

Injunction, Doc. No. 18, at 1 (hereinafter “FEC Reply”). For example, it is true that in Advisory 

Opinion 1983-23 (LTV Corp.), the Commission decided that a for-profit corporation’s cocktail 

reception at a convention would not constitute a prohibited contribution. 1983 WL 909288. But it 

is also true that in Advisory Opinion 1978-22 (Heftel), the FEC decided that a candidate hosting a 

“hospitality room” at a convention would constitute a contribution. 1978 WL 456875. This was 

because it was “reasonable to infer that [the host’s] attendance at the convention, and the activity 

occurring in the ‘hospitality room,’ will have the effect of furthering [the host’s] candidacy.” Id.

So, although some advisory opinions may permit activity similar to the Plaintiffs’, others do not, 

causing the quandary before this Court. All of this guidance rests in deciding whether the FEC will 

consider a certain monetary or in-kind donation as one that might influence an election and thus 

constitute a “contribution . . . in connection with any . . . political convention . . . held to select 

candidates for any political office.” 52 U.S.C. § 30118(a). 

The 2016 election season has been most contentious, and as this memorandum is being 

prepared “delegate revolts” are continually discussed in the media. See, e.g., Michael Gerson, A 

delegate revolt has become Republicans’ only option, WASH. POST, June 20, 2016, available at

https://www.washingtonpost.com/opinions/a-delegate-revolt-has-become-republicans-onlyoption/2016/06/20/2a5999ec-3713-11e6-8f7c-d4c723a2becb_story.html. It is sensible to believe 

the FEC would interpret delegate autonomy projects as “influencing any election.” 52 U.S.C. § 

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30101(8)(A). Delegate autonomy, as described in Plaintiffs’ Verified Complaint (Doc. No. 1), is 

the notion that delegates are “unbound” and may select whomever they desire as a nominee 

regardless of primary election results. In this sense, delegate autonomy is both a historical and 

legal principle, but it also carries with it the sense that delegate autonomy projects could upend the 

nomination of Donald Trump in the Republican Party, which, to put it mildly, would likely 

influence an election. 

That a particular course of conduct may implicate both relevant policy issues—the scope 

and freedom of delegate action—as well as impact an election—selecting another nominee other 

than Trump—was well recognized in Buckley v. Valeo. 424 U.S. 1 (1976). “[T]he distinction 

between discussion of issues and candidates and advocacy of election or defeat of candidates may 

often dissolve in practical application.” Id. at 41. “Not only do candidates campaign on the basis 

of their positions on various public issues, but campaigns themselves generate issues of public 

interest.” Id. This, then, is why the Supreme Court noted that the ambiguity of the phrase “for the 

purpose of influencing” does “pose[] constitutional problems” and “raises serious problems of 

vagueness,” because it had the “potential for encompassing both issue discussion and advocacy of 

a political result.” Id. at 76–77. But this phrase, which “raises serious problems of vagueness,” is 

all the FEC offers as instruction for the public to decide whether a given monetary or in-kind 

donation is a contribution (and perhaps prohibited), or not.

It is a welcome event that the FEC elected to rely on advisory opinions allowing Pillar to 

distribute books and provide pro bono legal services to delegates, and for the Unnamed Plaintiffs 

to accept them. But the FEC could have just as easily decided that because delegate autonomy 

efforts would likely influence the presidential election, they would qualify as contributions, and 

thus be illegal under the FECA It certainly would have had administrative support to do so. See 

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Advisory Opinion 1978-22 (Heftel), 1978 WL 456875. Because the FEC has decided that Pillar’s 

book distribution and pro bono legal representation projects would be protected under AO 1983-

23 (LTV Corp.), there is no need for injunctive relief here.

Pillar’s third activity, providing $500 delegate scholarships to help defray delegate travel 

and convention attendance costs, could be similarly targeted under 52 U.S.C. § 30118. Because 

these scholarships would allow pro-autonomy delegates a better opportunity to participate in the 

Republican National Convention, and thus have a better opportunity to upend Trump’s 

nomination, they could influence a federal election. However, the FEC has affirmed its fidelity to 

FEC v. Massachusetts Citizens for Life (“MCFL”), 479 U.S. 238 (1986), and explained that even 

Plaintiffs’ “proposed stipends (Compl. ¶ 31), would nevertheless be permitted under the Supreme 

Court’s decision in MCFL.” FEC Reply at 17.

Recognizing the import of MCFL and the rarity of cases involving delegates, the FEC notes

“neither the courts nor the Commission have addressed whether 52 U.S.C. § 30118 bars an MCFL 

corporation from making contributions to a delegate to a national convention. It does not.” FEC 

Reply at 19. This guidance does not exist in the form of any statute, rule, regulation, or advisory 

opinion. Rather, the FEC has undertaken a good faith litigation position that it will not apply 52 

U.S.C. § 30118 against MCFL corporations wishing to provide direct monetary donations such as 

Pillar’s to convention delegates. For the interim, this is sufficient to protect Plaintiffs’ First 

Amendment rights, preserve judicial resources, and avoid an unnecessary hearing.

3. Plaintiffs Do Not Forgo First Amendment Protection Due to Last Minute Political 

Developments and Lengthy Administrative Processes

The FEC’s counsel considers Plaintiffs’ reading of the law to be incorrect, and Plaintiffs 

may go about the activities detailed in this case without fear of running afoul of the FECA. Due to 

this, it would be nearly absurd to disagree with the FEC’s positions. Nevertheless, the points of 

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legal contention in this case, detailed above, are real and must be noted, for purposes of the record 

and in the event the parties cannot reach a satisfactory settlement. Just as importantly, the legal 

issues in this case were raised by sudden circumstances never before witnessed in the history of 

the FECA. 

It was only in early May that Donald Trump became the presumptive Republican nominee. 

See Emily Schultheis, Ted Cruz drops out of presidential race after Indiana loss, CBS NEWS, May 

3, 2016, http://www.cbsnews.com/news/ted-cruz-drops-out-of-presidential-race-after-indianaloss/. Though respectful of delegate autonomy and party conventions, these issues were simply not 

Pillar’s focus until around this same time, when the organization began to confer with delegates 

who expressed fear of legal retaliation, among other forms. See Unnamed Plaintiffs’ First 

Memorandum in Support of Protective Order, Doc. No. 16. It was during the process of exploring 

how Pillar might help the Unnamed Plaintiffs with issue advocacy and legal defense that the 

concerns in this case arose—that is, in May of 2016, last month. Cf. FEC Reply at 23–24. This 

action, researched and briefed to the best of counsel’s ability, was not ready for consideration by 

either this Court or the FEC until just before the date of filing. See Doc. No 1 (filed May 25, 2016). 

Plaintiffs’ counsel is, indeed, “familiar with” the FEC’s advisory opinion process. FEC

Reply at 22. They are also familiar with the potential pitfalls of this process. See Advisory Opinion 

2012-11 (Free Speech), http://saos.fec.gov/aodocs/AO%202012-11.pdf (an inconclusive, split 

opinion, issued 72 days after request). These concerns, along with counsel’s good-faith belief in 

its legal positions, supported the decision to seek judicial relief. Furthermore, although Pillar could 

have availed itself of the advisory opinion process independently, it could have done so on behalf 

of the Unnamed Plaintiffs without disclosing their identities. 11 CFR 112.1(a) (“An authorized 

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agent of the requesting person may submit the advisory opinion request, but the agent shall disclose 

the identity of his or her principal.”).

Campaign finance cases are difficult enough without seal motions and protective orders; 

these were undertaken because the Unnamed Plaintiffs are real, as are their concerns. If anything, 

this should dispel accusations that this case is an “apparent effort to generate a case or 

controversy[.]” FEC Reply at 1. Counsel will proceed with efforts settle this matter, utilizing the 

same good faith with which this case was brought.

4. Conclusion

Plaintiffs and Defendant will be in discussions to settle this suit. Until that point, Plaintiffs 

ask that their motion and supporting documents for preliminary injunctive relief be postponed. 

Respectfully submitted,

/s/ Stephen Klein

Stephen R. Klein

Benjamin Barr

PILLAR OF LAW INSTITUTE

455 Massachusetts Ave. NW 

Ste. 359

Washington, DC 20001-2742

(202) 815-0955 [Tel.]

stephen.klein@pillaroflaw.org

benjamin.barr@pillaroflaw.org

Boyd Wiggam (Wyoming Bar # 6-4059)

WYOMING LIBERTY GROUP

1902 Thomes Ave. 

Ste. 201

Cheyenne, WY 82001

(307) 632-7020 [Tel.]

(307) 632-7024 [Fax]

boyd.wiggam@wyliberty.org

June 21, 2016

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CERTIFICATE OF SERVICE

I, Stephen Klein, hereby certify that on this 21st day of June, 2016, the foregoing Reply 

Brief to Memorandum in Opposition to Motion for Preliminary Injunction was electronically 

served on Defendant’s counsel via the Court’s CM/ECF system.

/s/ Stephen Klein

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