UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF VIRGINIA 

RICHMOND DIVISION 

THE REAL TRUTH ABOUT OBAMA, 

INC., 

 Plaintiff, 

 v. 

FEDERAL ELECTION COMMISSION 

and UNITED STATES DEPARTMENT 

OF JUSTICE, 

 Defendants. 

) 

) 

) 

) 

) No. 3:08-cv-00483-JRS 

) 

) 

) 

) 

) 

) 

) 

DEFENDANT FEDERAL ELECTION COMMISSION’S 

REPLY IN SUPPORT OF THE COMMISSION’S 

MOTION FOR SUMMARY JUDGMENT 

Audra Hale-Maddox, Attorney, ahale-maddox@fec.gov 

VA Bar No. 46929 

Phillip Christopher Hughey, 

 Acting General Counsel, chughey@fec.gov 

David Kolker, Associate General Counsel, dkolker@fec.gov 

Harry Summers, Assistant General Counsel, 

 hsummers@fec.gov 

Claire Rajan, Attorney, crajan@fec.gov 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street NW 

Washington, DC 20463 

Telephone: (202) 694-1650 

Fax: (202) 219-0260 

Case 3:08-cv-00483-JRS Document 151 Filed 12/06/10 Page 1 of 28
TABLE OF CONTENTS 

 Page 

I. RTAO’S REQUEST FOR PRELIMINARY RELIEF IS MOOT, AND 

IN ANY EVENT, RTAO FAILS TO MEET THE REQUIREMENTS 

FOR THAT RELIEF..................................................................................................... 2 

A. RTAO’s Preliminary Injunction Request Is Moot As to All Claims ................ 2 

B. Winter Provides the Appropriate Standard to Determine Whether 

 the Extraordinary Remedy of a Preliminary Injunction Is Warranted ...............7 

C. Plaintiff Fails to Satisfy Any of the Four Requirements for a 

 Preliminary Injunction ...................................................................................... 8 

II. SUMMARY JUDGMENT SHOULD BE ENTERED FOR THE 

COMMISSION ........................................................................................................... 11 

A. Exacting Scrutiny Is the Appropriate Standard of Review ............................. 11 

B. The Commission’s Express Advocacy Regulation Is Constitutional ............. 12 

C. The Commission’s Application of the Supreme Court’s 

“Major Purpose” Test to Determine Political Committee 

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

III. CONCLUSION .......................................................................................................... 22 

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TABLE OF AUTHORITIES 

Cases Page 

Buckley v. Valeo, 424 U.S. 1 (1976) .................................................................... 11, 12, 20-21

Christian Civic League of Maine, Inc. v. FEC, 549 U.S. 801 (2006) .................................... 5-6 

Christianson v. Colt Indus. Operating Corp., 486 U.S. 800 (1988) ......................................... 5 

Church of Scientology of Cal. v. United States, 506 U.S. 9 (1992) ...................................... 3-4 

Citizens United v. FEC, 558 U.S. __, 130 S. Ct. 876 (2010) ....................... 1, 6, 11, 14-18, 20 

Citizens United v. FEC, 530 F. Supp. 2d, 274 (D.D.C. 2008) ............................................... 15

City of Los Angeles v. Lyons, 461 U.S. 95 (1983) ................................................................... 3 

Conservation Council of North Carolina v. Costanzo, 505 F.2d 498 (4th Cir. 1974) ........... 10 

Davis v. FEC, 554 U.S. __ 128 S. Ct. 2759 (2008) ............................................................... 12 

Doe v. Reed, 558 U.S. __, 130 S. Ct. 2811 (2010) .................................................... 11-12, 17 

FEC v. GOPAC, Inc., 917 F. Supp. 851 (D.D.C. 1996) ........................................................ 20 

FEC v. Malenick, 310 F. Supp. 2d 230 (D.D.C. 2004) .......................................................... 20 

FEC v. Wis. Right to Life, Inc., 551 U.S. 449 (2007) .......................................... 4, 7-8, 10, 13

Henry v. City of Rock Hill, 376 U.S. 776 (1964) ................................................................. 6, 8 

Human Life of Wash. v. Brumsickle, No. 09-35128, 2010 WL 3987316 

 (9th Cir. Oct. 12, 2010) ...................................................................................................... 17 

 

Independence Party of Richmond Cnty. v. Graham, 413 F.3d 252 (2d Cir. 2005) ..................3 

Lawrence v. Chater, 516 U.S. 163 (1996) ........................................................................... 6, 8 

Lewis v. Cont’l Bank Corp., 494 U.S. 472 (1990) ............................................................... 2, 4 

McConnell v. FEC, 540 U.S. 93 (2003) ........................................................................... 12, 17 

Murphy v. Hunt, 455 U.S. 478 (1982) ..................................................................................... 3 

Naser Jewelers, Inc. v. City of Concord, N.H., 538 F.3d 17 (1st Cir. 2008) ........................... 5 

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New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 434 U.S. 1345 (1977) ........................ 10 

 

North Carolina Right to Life, Inc. v. Leake, 525 F.3d 274 (4th Cir. 2008) ........................... 18 

Real Truth About Obama, Inc. v. FEC, 588 U.S. __, 130 S. Ct. 2371 (2010) ......................... 6 

Real Truth About Obama, Inc. v. FEC, 607 F.3d 355 (4th Cir. 2010) ................................ 4-5 

Real Truth About Obama, Inc. v. FEC, 575 F.3d 342 (4th Cir. 2009) .................. 7, 12, 18-19 

Real Truth About Obama, Inc. v. FEC, No. 3:08-cv-483, 2008 WL 4416282 

 (E.D. Va. Sept. 24, 2008) ................................................................................. 12, 16, 18-19 

Sampson v. Murray, 415 U.S. 61 (1974) ................................................................................. 9 

Shays v. FEC, 511 F. Supp. 2d 19 (D.D.C. 2007) ................................................................. 20 

SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir.), cert. denied, No. 10-145, 

 2010 WL 4272775 (U.S. Nov. 1, 2010) ......................................................................... 9, 21 

United States v. Aramony, 166 F.3d 655 (4th Cir. 1999) ..................................................... 4-5 

United States v. Harriss, 347 U.S. 612 (1954) ...................................................................... 17 

United States v. United States v. Students Challenging Regulatory 

 Agency Procedures (SCRAP), 412 U.S. 669 (1973) ........................................................... 10 

Weinstein v. Bradford, 423 U.S. 147 (1975) ............................................................................ 3 

Winter v. Natural Res. Def. Council, Inc., 555 U.S. ___, 129 S. Ct. 365 (2008) ................ 1, 7 

Statutes and Regulations 

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

2 U.S.C. § 431(17) ................................................................................................................. 18 

2 U.S.C. § 434(f) .............................................................................................................. 14, 16 

2 U.S.C. § 434(f)(3)(A)(ii) ..................................................................................................... 19 

2 U.S.C. § 441a(a)(1)(C) ........................................................................................................ 12 

2 U.S.C. § 441b ...................................................................................................................... 14 

11 C.F.R. § 100.22(b) ..................................................................................... 11-13, 16, 18-19 

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iv 

Administrative Material 

Political Committee Status, 72 Fed. Reg. 5595 (Feb. 7, 2007) .............................................. 20 

Case 3:08-cv-00483-JRS Document 151 Filed 12/06/10 Page 5 of 28
As the Commission explained in its opening brief, the Supreme Court’s decision in 

Citizens United v. FEC, 558 U.S. __, 130 S. Ct. 876, 913 (2010), has further undermined 

plaintiff Real Truth About Obama, Inc.’s (“RTAO”) challenge to the Federal Election 

Commission (“Commission” or “FEC”) regulation defining “expressly advocating” and the 

Commission’s approach to determining political committee status. By striking down limits on 

corporate campaign expenditures, Citizens United narrowed the reach of the express advocacy 

regulation so that it now primarily implements disclosure requirements, which, contrary to 

plaintiff’s claims, are not subject to strict scrutiny. In fact, Citizens United upheld disclosure 

requirements that capture a far greater range of communications than express advocacy, so the 

Commission’s regulation is plainly constitutional as applied to plaintiff’s ads about then-Senator 

Barack Obama. Contrary to plaintiff’s claims, Citizens United has not undermined the 

Commission’s showing that its analysis of political committee status is consistent with the 

approach of federal courts. 

Moreover, plaintiff’s request for preliminary relief is moot. Plaintiff never aired the ads 

it had planned in 2008, and its claims as to those ads or any materially similar future ads will not 

meet the “capable of repetition yet evading review” exception to mootness, primarily because 

plaintiff will now receive a decision on the merits. In any event, plaintiff cannot establish any of 

the four factors required for preliminary relief under Winter v. Natural Res. Def. Council, Inc., 

555 U.S. ___, 129 S. Ct. 365 (2008), which the Fourth Circuit has made clear controls here, 

despite plaintiff’s insistence on its invented “speech-protective standards.” Thus, this Court 

should again deny RTAO’s request for a preliminary injunction and grant summary judgment to 

the Commission. 

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Case 3:08-cv-00483-JRS Document 151 Filed 12/06/10 Page 6 of 28
I. RTAO’S REQUEST FOR PRELIMINARY RELIEF IS MOOT, AND IN ANY 

EVENT, RTAO FAILS TO MEET THE REQUIREMENTS FOR THAT RELIEF 

Plaintiff’s request for preliminary relief is moot because the period when RTAO sought 

to run its specific ads expired in 2008 and consolidation with the merits now renders preliminary 

relief superfluous. For multiple reasons, RTAO cannot avail itself of the “capable of repetition, 

yet evading review” exception to mootness (see Lewis v. Cont’l Bank Corp., 494 U.S. 472 

(1990)): That exception is not appropriately applied to RTAO’s request for preliminary relief, 

RTAO’s alleged plans for future activity are too speculative, and the issues will not evade review 

in light of this Court’s imminent decision on the merits. Even if the preliminary injunction 

request were not moot, the Fourth Circuit has made clear that it is the four-factor analysis of 

Winter that controls here, not plaintiff’s novel, fourteen-factor “speech-protective standards” test. 

Indeed, RTAO has failed to prove that it should prevail on any of the four Winter factors. In 

particular, plaintiff cannot show irreparable harm from the express advocacy regulation that no 

longer serves to prohibit any speech. Thus, the Court should find the preliminary injunction 

request to be moot, or in the alternative, deny preliminary relief. 

A. RTAO’s Preliminary Injunction Request Is Moot As to All Claims 

As the Commission explained in its opening brief (Br. at 18-21), plaintiff’s request for 

preliminary injunctive relief is moot. Plaintiff seeks to preliminarily enjoin the Commission 

from investigating allegations of particular violations of the Federal Election Campaign Act, 

2 U.S.C. §§ 431-57 (“FECA” or “Act”), based on advertisements the group planned to run at 

specific times in 2008. But those times passed without RTAO airing any of its proposed ads. 

Thus, there is no factual basis for any Commission enforcement action and a preliminary 

injunction could not provide RTAO any relief. 

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As the Commission explained (Br. at 19-20), consolidation of the preliminary injunction 

with the merits has also mooted RTAO’s request for preliminary relief. Once a decision on the 

merits is issued, granting a preliminary injunction has no practical effect. A federal court may 

not “give opinions upon moot questions or abstract propositions, or . . . declare principles or 

rules of law which cannot affect the matter in issue in the case before it.” Church of Scientology 

of Cal. v. United States, 506 U.S. 9, 12 (1992) (internal quotation marks and citation omitted). 

Contrary to RTAO’s assertions (Opp. at 13-14), its preliminary injunction request does 

not satisfy the limited exception to mootness for issues capable of repetition yet evading review. 

This doctrine “applies only in exceptional situations,” City of Los Angeles v. Lyons, 461 U.S. 95, 

109 (1983), and a request for preliminary injunctive relief is not typically such a situation, see

Independence Party of Richmond Cnty. v. Graham, 413 F.3d 252, 256-57 (2d Cir. 2005). In this 

case, RTAO has not shown its claims are “capable of repetition” or will “evade review.” To be 

capable of repetition, “there must be a ‘reasonable expectation’ or a ‘demonstrated probability’ 

that the same controversy will recur involving the same complaining party.” Murphy v. Hunt, 

455 U.S. 478, 482 (1982) (quoting Weinstein v. Bradford, 423 U.S. 147, 149 (1975)). Plaintiff’s 

vague claim that it intends to run “materially similar” ads at some future time is too speculative 

and hypothetical to entitle plaintiff to the extraordinary remedy of preliminary injunctive relief. 

(See FEC Br. at 20 n.8.) In addition, claims as to any such future activity would not evade 

review because RTAO now seeks permanent relief on the same matters at issue in the 

preliminary injunction request, and this Court’s decision on the merits (or any subsequent 

appellate decision) will control any materially similar activity, should it occur. See 

Independence Party of Richmond Cnty., 413 F.3d at 256-57 (appeal of a preliminary injunction 

grant fails to meet the evading review prong of the mootness exception where it raises the same 

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underlying legal questions as the request for permanent relief pending in the district court). 

Thus, RTAO’s claim that a preliminary injunction is required to ensure that “the law can be 

established for the next time clear legal rules are required on short notice” (Opp. at 14) lacks 

merit.1

To the extent RTAO seeks review of the preliminary injunction standard untethered to a 

concrete case or controversy, the federal courts cannot grant that relief. RTAO argues (Opp. 

at 17) that it needs the courts to clarify the preliminary injunction standard “to protect RTAO’s 

future issue activity.” However, 

[u]nder Article III of the Constitution, federal courts may adjudicate only 

actual, ongoing cases or controversies. . . . Article III . . . confines [federal 

courts] to resolving real and substantial controversies admitting of specific 

relief through a decree of a conclusive character, as distinguished from an 

opinion advising what the law would be upon a hypothetical state of facts. 

Lewis, 494 U.S. at 477 (citations, brackets, and quotation marks omitted); see also Church of 

Scientology, 506 U.S. at 12. Establishing a new preliminary injunction standard in the absence 

of an imminent need for relief concerning a “real and substantial” controversy is beyond the 

power of the federal courts. 

Moreover, because the Fourth Circuit on remand reinstated the preliminary injunction 

standard portion of its original opinion, that standard is now the law of the case, so plaintiff in 

fact already knows the applicable standard. RTAO v. FEC, 607 F.3d 355 (4th Cir. 2010). RTAO 

has had multiple opportunities to persuade higher courts to adopt its proposed standard, but those 

courts have repeatedly declined to do so. (See FEC Br. at 21-22 & n.9.) “‘The doctrine [of the 

 

1

 In FEC v. Wis. Right to Life, Inc., 551 U.S. 449 (2007), the plaintiff’s request for 

permanent relief was deemed capable of repetition yet evading review, but that mootness 

determination was not in the preliminary injunction context, and WRTL had alleged very 

specific plans to run particular ads in future elections; the Court even noted that WRTL had 

sought a second preliminary injunction for a specific ad it wished to run in a later election cycle. 

Id. at 461-64. 

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law of the case] posits that when a court decides upon a rule of law, that decision should 

continue to govern the same issues in subsequent stages in the same case.’” United States v. 

Aramony, 166 F.3d 655, 661 (4th Cir. 1999) (quoting Christianson v. Colt Indus. Operating 

Corp., 486 U.S. 800, 815-16 (1988)). A preliminary injunction ruling can establish the law of 

the case if the record was sufficiently developed and the facts sufficiently clear. Naser Jewelers, 

Inc. v. City of Concord, N.H., 538 F.3d 17 (1st Cir. 2008). In Naser, the First Circuit noted that 

the plaintiff presented no new evidence at the summary judgment stage; indeed, the record did 

not “significantly change,” except to make the defendant’s case stronger. Id. at 20. Because the 

“arguments and evidence . . . are essentially the same ones we previously considered,” the court 

held, “we decline the invitation to this court to change its mind.” Id. at 20-21 (internal quotation 

marks and citation omitted). Similarly, the record before this Court on summary judgment is 

identical to the preliminary injunction record. In fact, the Fourth Circuit also reissued its 

statement of the facts on remand of the preliminary injunction. RTAO, 607 F.3d at 355. Those 

facts have not changed or been supplemented by RTAO. 

In Christian Civic League of Maine, Inc. v. FEC, 549 U.S. 801 (2006), the Supreme 

Court found a request for preliminary relief moot in a situation that was essentially identical to 

RTAO’s situation here. In that constitutional challenge, the plaintiff appealed a three-judge 

district court’s denial of its preliminary injunction request. The plaintiff had sought to run a 

specific advertisement before a primary election in the 2006 election cycle and alleged that it 

intended to run “materially similar” ads in the future. The Commission and intervenordefendants argued that the appeal was moot because the time when the plaintiff intended to run 

its proposed ad had expired. Additionally, intervenor-defendants noted that the issues would not 

evade review due to the plaintiff’s request for permanent injunctive relief and the ability to 

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appeal a final decision on the merits. The Supreme Court summarily dismissed the appeal as 

moot. Id. RTAO’s case is identical in all material respects because (1) the time when a 

preliminary injunction would have provided plaintiff relief has ended; (2) the only basis for 

plaintiff’s claim that the issue is capable of repetition is a vague intention to run “materially 

similar ads”; and (3) plaintiff’s claim for permanent relief and ability to appeal any adverse 

decision provide sufficient opportunities for judicial review. Thus, RTAO’s request for 

preliminary relief is similarly moot. 

Plaintiff also incorrectly claims that the Supreme Court’s actions in granting certiorari, 

vacating the judgment, and remanding this matter (a “GVR” order) immunize the preliminary 

injunction request from mootness. (Opp. at 2.) However, the Supreme Court long ago 

established that a GVR order is not a determination on the merits. In Henry v. City of Rock Hill, 

376 U.S. 776, 777 (1964), the Court explained that a GVR order “did indicate that we found [an 

intervening decision] sufficiently analogous and, perhaps, decisive to compel re-examination of 

the case,” but the Court confirmed that the GVR order “did not amount to a final determination 

on the merits.” Id. More recently, in describing the various intervening developments that may 

lead to a GVR order, the Court made clear that such orders are “cautious and deferential” 

measures that “require only further consideration.” Lawrence v. Chater, 516 U.S. 163, 167 

(1996); see also id. at 166-69, 174. In any event, in the current case, the only substantive 

principles that the GVR order supports are that the intervening decision in Citizens United may 

affect the case and that some elements of the case may now be moot. RTAO v. FEC, 588 U.S. 

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

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B. Winter Provides the Appropriate Standard to Determine Whether the 

Extraordinary Remedy of a Preliminary Injunction Is Warranted 

“A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter, 

129 S. Ct. at 376; see RTAO v. FEC, 575 F.3d 342, 345 (4th Cir. 2009). “A plaintiff seeking a 

preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to 

suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his 

favor, and that an injunction is in the public interest.” Winter, 129 S. Ct. at 374. Plaintiff must 

make a “clear showing” that preliminary relief is necessary; a mere “possibility of irreparable 

harm” is not sufficient. Id. at 375-76. 

In spite of Winter’s mandate that the “plaintiff seeking a preliminary injunction must 

establish that he is likely to succeed on the merits,” 129 S. Ct. at 374 (emphasis added), RTAO 

continues to argue that the government must prove success on the merits here. (Opp. at 11-12.) 

As the Fourth Circuit made clear in this case, however, “the standard articulated in Winter

governs the issuance of preliminary injunctions not only in the Fourth Circuit but in all federal 

courts.” RTAO, 575 F.3d at 347. That holding is the law of the case. Thus, as the Commission 

explained (Br. at 21-23), it is the Winter standard, not plaintiff’s fourteen “speech-protective 

standards” (RTAO Opp. at 11-18), that must be applied here. 

There is no basis for RTAO’s claim that the Supreme Court’s statement in FEC v. Wisc. 

Right to Life, Inc., 551 U.S. 449, 474 (2007) (“WRTL”) that the “tie goes to the speaker, not the 

censor,” mandates that the preliminary injunction standard should incorporate RTAO’s “speechprotective principles.” (Opp. at 12.) WRTL did not address preliminary injunctions. Rather, that 

opinion involved an as-applied challenge to the ban on the use of corporate treasury funds to 

finance electioneering communications; the Court explained that “[d]iscussion of issues cannot 

be suppressed simply because the issues may also be pertinent in an election. Where the First 

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Amendment is implicated, the tie goes to the speaker, not the censor.” WRTL, 551 U.S. at 474 

(emphasis added). But there is no “suppression” of RTAO’s speech in this case and certainly no 

basis for applying the Court’s admonition to disclosure provisions that do not ban speech or 

spending, let alone for invoking that admonition to require RTAO’s fourteen “principles” to be 

enshrined in a new preliminary injunction standard. 

RTAO also tries to collapse the four preliminary injunction factors into one, claiming that 

“[i]f a provision is likely unconstitutional or beyond statutory authority, irreparable harm, 

balance of harms, and public interest are already settled.” (Opp. at 12.) Essentially, RTAO asks 

this Court to ignore three of the four standards of the Winter analysis, without providing any 

authority for doing so. However, Winter and the Fourth Circuit’s opinion in this case make clear 

that all four factors must be analyzed. 

RTAO also wrongly claims (Opp. at 11) that because the Supreme Court vacated the 

Fourth Circuit’s judgment, the Supreme Court deemed the circuit court’s application of the 

Winter standard “incorrect.” Plainly the Fourth Circuit itself does not share this view, because it 

subsequently reissued that portion of its opinion, which now binds this Court. Moreover, 

plaintiff’s claim again relies on the view that the Supreme Court’s GVR order in this case 

constitutes a determination on the merits of the matter, which is incorrect. See supra p. 6; Henry, 

376 U.S. at 777; Lawrence, 516 U.S. at 168. In any event, the GVR order here simply remanded 

the case for consideration of Citizens United and the possibility of mootness, belying RTAO’s 

claim that the Court intended to make any statement about preliminary injunction standards. 

C. Plaintiff Fails to Satisfy Any of the Four Requirements for a 

Preliminary Injunction 

 Even if RTAO’s claim for injunctive relief were not moot, it cannot meet the standard 

required for preliminary relief. First, as the Commission showed in its opening brief (Br. at 

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32-45) and further explains below (infra pp. 12-20), plaintiff cannot demonstrate a likelihood of 

success on the merits. 

Second, the Commission also demonstrated (Br. at 23-27) that RTAO has failed to show 

that it will suffer irreparable harm in the absence of the extraordinary relief it seeks. See 

Sampson v. Murray, 415 U.S. 61, 88 (1974) (basis of injunctive relief in federal court has always 

been irreparable harm). After Citizens United, the regulatory provisions implicated in this case 

impose no ban on speech but involve only reporting and organizational requirements. RTAO 

makes speculative and conclusory claims that it may potentially be harmed by the Commission’s 

analysis for determining whether an organization is a political committee, but RTAO alleges no 

specific or concrete harm to itself and instead points only to a 2008 letter by a Department of 

Justice official stating a general intention to criminally enforce FECA. (Opp. at 16.) This is 

woefully inadequate. At its foundation, RTAO’s alleged harm is that it simply does not want to 

be considered a political committee, even though that status is unlikely to subject RTAO even to 

limits on the contributions it can receive, and the organizational and reporting requirements that 

apply to such committees are only marginally more burdensome than the requirements for 

anyone making independent expenditures — requirements that RTAO does not challenge. See 

FEC Br. at 25-26; SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir.), cert. denied, No. 10-145, 

2010 WL 4272775 (U.S. Nov. 1, 2010). None of those requirements could create the immediate 

or irreparable harm that is required to justify the extraordinary remedy of a preliminary 

injunction. 

 Plaintiff’s reliance upon WRTL to demonstrate harm (Opp. at 16) is misplaced. RTAO 

confuses the level of harm necessary to establish that a matter is “capable of repetition” for 

purposes of a mootness analysis with the immediate and irreparable harm required for a 

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preliminary injunction. RTAO cites the portion of WRTL in which the Court states that “there is 

no reason to believe” that the FEC will refrain from enforcing the law, as part of the Court’s 

discussion of whether plaintiff had shown a “reasonable expectation or a demonstrated 

probability that the same controversy will recur involving the same complaining party.” WRTL, 

551 U.S. at 463 (citations and quotation marks omitted). But the level of injury required to 

demonstrate justiciability under Article III is significantly lower than the harm necessary to 

justify a preliminary injunction. Standing, for example, requires an injury in fact, but the 

“claimed injury need not be great or substantial; an ‘identifiable trifle,’ if actual and genuine, 

gives rise to standing.” Conservation Council of North Carolina v. Costanzo, 505 F.2d 498, 501 

(4th Cir. 1974) (quoting United States v. Students Challenging Regulatory Agency Procedures 

(SCRAP), 412 U.S. 669, 687-689 n.14 (1973)). In comparison, a plaintiff seeking a preliminary 

injunction must make a strong showing of “irreparable” harm that cannot consist of mere 

monetary loss or administrative burden. (See FEC Br. at 23-27.) 

 Finally, as the Commission has shown (Br. at 27-29), the balance of harms and the public 

interest weigh strongly in favor of the Commission. Plaintiff barely mentions (Opp. at 16-17) 

these two factors in its responsive brief, but plaintiff must show that both support its position 

before a preliminary injunction may issue. “[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). The challenged Commission regulation and enforcement approach implement 

longstanding disclosure requirements in federal elections and ensure that political committees 

disclose their receipts and disbursements to the public. These requirements serve compelling 

government interests in preventing actual and apparent corruption, informing the public, and 

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facilitating the Commission’s enforcement of the law. Indeed, similar requirements were upheld 

in Citizens United based on the informational interest alone. 130 S. Ct. at 915-16.

II. SUMMARY JUDGMENT SHOULD BE ENTERED FOR THE COMMISSION 

A. Exacting Scrutiny Is the Appropriate Standard of Review 

As the Commission demonstrated (Br. at 30-32), exacting scrutiny applies in this case. 

Contrary to plaintiff’s claims (Opp. at 19-20), strict scrutiny does not apply here because RTAO 

is not challenging a ban on speech. The regulation at 11 C.F.R. § 100.22(b) merely provides a 

definition of “expressly advocating.” After Citizens United, the only remaining application of 

this provision is to the Act’s disclosure requirements and, indirectly, to the determination of 

whether an organization is a political committee. Likewise, the consequences of political 

committee status are disclosure and organizational requirements, and for some committees, 

limits on the contributions they may receive. None of these requirements are subject to strict 

scrutiny, and plaintiff provides no precedent in which strict scrutiny has been so applied. 

Because “disclosure requirements . . . do not prevent anyone from speaking,” Citizens 

United, 130 S. Ct. at 914 (internal quotation marks and citation omitted), the Supreme Court 

consistently applies exacting scrutiny that, unlike strict scrutiny, only “requires a ‘substantial 

relation’ between the disclosure requirement and a ‘sufficiently important’ governmental 

interest.” Id. at 914 (quoting Buckley v. Valeo, 424 U.S. 1, 64, 66 (1976)). The Supreme Court 

has recently confirmed that exacting scrutiny applies to FECA’s disclosure requirements, 

Citizens United, 130 S. Ct. at 914, as well as to disclosure requirements for ballot referenda, Doe 

v. Reed, 558 U.S. __, 130 S. Ct. 2811, 2818 (2010). By contrast, Citizens United applied strict 

scrutiny to a prohibition on corporate expenditures. 130 S. Ct. at 898. 

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Even if RTAO were a political committee and chose to make contributions to candidates 

or political parties (contrary to its current Articles of Incorporation), the $5,000 contribution 

limit on contributions it could receive, 2 U.S.C. § 441a(a)(1)(C), would not be subject to strict 

scrutiny. Buckley noted that a “limitation on the amount of money a person may give to a 

candidate or campaign organization . . . involves little direct restraint on his political 

communication, for it permits the symbolic expression of support evidenced by a contribution 

but does not in any way infringe the contributor’s freedom to discuss candidates and issues.” 

424 U.S. at 21. The Court thus analyzed contribution limits under a standard that is less 

demanding than strict scrutiny, explaining that “[e]ven a significant interference with protected 

rights of political association may be sustained if the State demonstrates a sufficiently important 

interest and employs means closely drawn to avoid unnecessary abridgment of associational 

freedoms.” Id. at 25 (internal quotation marks and citations omitted); see also McConnell v. 

FEC, 540 U.S. 93, 136 (2003); Davis v. FEC, 554 U.S. __ n.7, 128 S. Ct. 2759, 2772 n.7 

(2008).2

Thus, consistent with the standards clearly articulated by the Supreme Court, exacting 

scrutiny applies to the regulation and political committee analysis that plaintiff challenges here. 

B. The Commission’s Express Advocacy Regulation Is Constitutional 

The regulation at 11 C.F.R. § 100.22(b), which defines “expressly advocating,” is neither 

vague nor overbroad. (See FEC Br. at 32-39.) As this Court and the Fourth Circuit noted in 

denying a preliminary injunction, RTAO v. FEC, No. 3:08-cv-483, 2008 WL 4416282 (E.D. Va. 

Sept. 24, 2008), at *11; RTAO, 575 F.3d at 349, the regulation is consistent with the 

 

2

 RTAO claims that even if this Court applies exacting scrutiny, it should be “high-level 

scrutiny that operates as the functional equivalent of strict scrutiny.” (Opp. at 20 n.9). However, 

that standard would be strict scrutiny with another name, contrary to Supreme Court precedent. 

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constitutional “functional equivalent of express advocacy” test established in WRTL, a test that 

was recently applied in Citizens United. Moreover, Citizens United narrowed the application of 

section 100.22(b) so that it no longer implements a ban on corporate independent expenditures 

but now primarily implements disclosure requirements subject to a lower level of scrutiny. 

Indeed, the Supreme Court has upheld disclosure requirements that apply to far broader 

categories of speech than section 100.22(b) does, most notably in Citizens United itself, which 

upheld disclosure of all “electioneering communications,” even those that are not the functional 

equivalent of express advocacy. Finally, there is no basis for RTAO’s argument that Congress 

implicitly imported a narrow “magic words” interpretation of express advocacy into the statutory 

definition of “independent expenditure.” 

As the Commission has explained (Br. at 33-34), section 100.22(b) is consistent with 

(and very similar to) the Supreme Court’s WRTL test, which narrowed McConnell’s upholding of 

the financing restriction on electioneering communications to those that are “the functional 

equivalent of express advocacy,” i.e., those “susceptible of no reasonable interpretation other 

than as an appeal to vote for or against a specific candidate.” WRTL, 551 U.S. at 469-70. RTAO 

argues (Opp. at 25) that when divorced from the statutory criteria defining the term 

“electioneering communication,” WRTL’s “functional equivalent of express advocacy” test is 

vague. However, WRTL never suggested that its own test would become impermissibly vague if 

applied outside these statutory time windows, emphasizing instead that the test was not vague as 

a general matter. See 551 U.S. at 474 n.7. Logically, whether a communication is made within a 

30- or 60-day window has little if any bearing on the vagueness of a test asking whether the 

communication can reasonably be interpreted as anything other than an appeal to vote for or 

against a candidate. Citizens United later applied the WRTL test to determine whether Hillary: 

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The Movie was the functional equivalent of express advocacy, 130 S. Ct. at 889-90; because the 

Court held that it was, the Court proceeded to decide whether the ban on corporate electioneering 

communications was constitutional as applied to the movie, id. at 892 (“Court cannot resolve this 

case on a narrower ground”). Nothing in the Court’s “functional equivalent” analysis suggests 

that the Court viewed the test it had created in WRTL as impermissibly vague.3

 

Although Citizens United struck down FECA’s financing restrictions on independent 

electoral advocacy, by a vote of 8-1 the Court applied exacting scrutiny and upheld the 

requirement at 2 U.S.C. § 434(f) that all electioneering communications be disclosed. 

The principal opinion in WRTL limited 2 U.S.C. § 441b’s restrictions on 

independent expenditures to express advocacy and its functional equivalent. 

551 U.S., at 469-76 (opinion of ROBERTS, C.J.). Citizens United seeks to 

import a similar distinction into BCRA’s disclosure requirements. We reject 

this contention. 

The Court has explained that disclosure is a less restrictive alternative to 

more comprehensive regulation of speech.

130 S. Ct. at 915 (citation omitted). The Court specifically held: “Even if the ads only pertain to 

a commercial transaction, the public has an interest in knowing who is speaking about a 

candidate shortly before an election.” Id.

The three advertisements that Citizens United found could permissibly be subject to 

disclosure were less obviously election-related than the two ads RTAO sought to run in this case. 

Citizens United proposed to air three ads shortly before an election in which Hillary Clinton was 

a presidential candidate. The three scripts stated: 

 

3

 In particular, the Court explained that the film “would be understood by most viewers as 

an extended criticism of Senator Clinton’s character and her fitness for the office of the 

Presidency. The narrative may contain more suggestions and arguments than facts, but there is 

little doubt that the thesis of the film is that she is unfit for the Presidency.” Citizens United, 130 

S. Ct. at 890. 

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• “Wait”: “If you thought you knew everything about Hillary Clinton . . . wait ’til you 

see the movie.” 

 

• “Pants”: “First, a kind word about Hillary Clinton.” [Ann Coulter Speaking & 

Visual] “She looks good in a pant suit.” “Now, a movie about the everything else.” 

• “Questions”: “Who is Hillary Clinton?” [Jeff Gerth Speaking & Visual] “[S]he’s 

continually trying to redefine herself and figure out who she is . . .” [Ann Coulter 

Speaking & Visual] “[A]t least with Bill Clinton he was just good time Charlie. 

Hillary’s got an agenda . . .” [Dick Morris Speaking & Visual] “Hillary is the closest 

thing we have in America to a European socialist . . .” 

Citizens United v. FEC, 530 F. Supp. 2d, 274, 276 nn. 2-4 (D.D.C. 2008). Although the 

Supreme Court stated that these ads were “pejorative,” the Court did not rule that they were the 

functional equivalent of express advocacy. 130 S. Ct. at 915. Instead, as discussed above, the 

Court held that it need not limit the scope of FECA’s disclosure requirements to ads that were 

the functional equivalent of express advocacy. The Court also explained that “[b]ecause the 

informational interest alone is sufficient to justify application of [the electioneering 

communication disclosure requirements] to these ads, it is not necessary to consider the 

Government’s other asserted interests.” Id. at 915-916. 

In this case, RTAO allegedly intended to run two radio ads shortly before the 2008 

election in which Barack Obama was a presidential candidate. The “Change” ad features an 

“Obama-like voice” explaining the purported ways in which then-Senator Obama would change 

abortion policy, then stating: “One thing I would not change about America is abortion on 

demand, for any reason, at any time during pregnancy, as many times as a woman wants one.” A 

woman’s voice then states: “Now you know the real truth about Obama’s position on abortion. 

Is this the change that you can believe in?” (RTAO Amended Complaint ¶ 16.) The “Survivors” 

ad begins with a “Nurse,” who says: “The abortion was supposed to kill him, but he was born 

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alive. I couldn’t bear to follow hospital policy and leave him on a cold counter to die, so I held 

and rocked him for 45 minutes until he took his last breath.” Then a “male voice” says: 

As an Illinois Democratic State Senator, Barack Obama voted three times to 

deny lifesaving medical treatment to living, breathing babies who survive 

abortions. For four years, Obama has tried to cover-up his horrendous votes 

by saying the bills didn’t have clarifying language he favored. Obama has 

been lying. Illinois documents from the very committee Obama chaired show 

he voted against a bill that did contain the clarifying language he says he 

favors. 

Obama’s callousness in denying lifesaving treatment to tiny babies who 

survive abortions reveals a lack of character and compassion that should give 

everyone pause. 

Paid for by The Real Truth About Obama, Inc. 

(RTAO Amended Complaint ¶ 17.) 

Citizens United confirms that requiring disclosure of RTAO’s ads is constitutional. If 

disclosure may be required for an advertisement with a commercial purpose that simply states, as 

the “Wait” ad did, “If you thought you knew everything about Hillary Clinton . . . wait ‘til you 

see the movie,” then disclosure of the advertisements at issue in this case may clearly be 

required. Regardless of whether RTAO’s ads contain express advocacy, they both contain 

references to a presidential candidate in an impending election, which is sufficient to require 

disclosure. Citizens United, 130 S. Ct. at 915 (“the public has an interest in knowing who is 

speaking about a candidate shortly before an election.”). Indeed, when this Court denied 

RTAO’s request for a preliminary injunction, it held that “it is clear reasonable people could not 

differ that [the “Change”] ad is promoting the defeat of Senator Obama.”4

 RTAO, 2008 WL 

4416282, at *7-8. 

 

4

 Although the Commission does not view RTAO’s “Change” ad as express advocacy, it is 

clearly a closer call than Citizens United’s “Wait” ad. In any event, even if not express advocacy 

under section 100.22(b), “Change” would still be subject to disclosure after Citizens United

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Citizens United’s upholding of disclosure requirements for a category of communications 

that goes well beyond express advocacy is consistent with the Supreme Court’s long history of 

upholding disclosure requirements applicable to issue advocacy. See, e.g., United States v. 

Harriss, 347 U.S. 612, 625 (1954) (upholding lobbying disclosure laws that “merely provided 

for a modicum of information from those who for hire attempt to influence legislation or who 

collect or spend funds for that purpose”); Doe v. Reed, 130 S. Ct. at 2819-22 (upholding 

disclosure of names and addresses of signatories on petitions to place referenda on the ballot). 

See also Human Life of Wash. v. Brumsickle, No. 09-35128, 2010 WL 3987316 (9th Cir. Oct. 12, 

2010) (relying upon Citizens United to uphold disclosure of communications opposing a ballot 

measure on physician-assisted suicide). 

Ignoring Citizens United’s upholding of disclosure “even if the ads only pertain to a 

commercial transaction,” 130 S. Ct. at 915, RTAO argues (Opp. at 21-22) that Buckley limits 

constitutionally permitted disclosure to the narrow class of communications that contain the 

“magic words” of express advocacy. However, as the Commission explained (Br. at 34-35), 

McConnell made clear that the First Amendment does not require that Buckley’s express 

advocacy construction apply in all circumstances. 540 U.S. at 191-92. And regardless of any 

dispute about Buckley’s meaning, Citizens United is now the controlling decision on disclosure, 

and it permits disclosure requirements applicable to the ads in this case. As the Court explained, 

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

shareholders to react to the speech of corporate entities in a proper way. This transparency 

enables the electorate to make informed decisions and give proper weight to different speakers 

and messages.” 130 S. Ct. at 916. 

 

because it falls within the statutory electioneering communication definition in 2 U.S.C. § 434(f). 

RTAO does not challenge the disclosure requirements for electioneering communications. 

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 Finally, neither this Court nor the Fourth Circuit accepted RTAO’s argument (Opp. at 19-

22) that Buckley mandates the application of “unambiguously campaign related principles” to 

this case. RTAO, 2008 WL 4416282; RTAO, 575 F.3d 342. Nothing in Citizens United

undermines those decisions. Once again, plaintiff relies heavily on North Carolina Right to Life, 

Inc. v. Leake, 525 F.3d 274 (4th Cir. 2008), but as the Commission explained (Br. at 38), the 

state statute at issue in that case was broader and less precise than 11 C.F.R. § 100.22(b), 

sweeping “far more broadly than WRTL’s ‘functional equivalent of express advocacy’ test.” 

Leake, 525 F.3d at 297. Moreover, Leake explained that North Carolina was free “to adopt a 

definition of express advocacy consistent with the standards approved by McConnell and 

WRTL.” Id. at 301. Leake does contain language describing an “unambiguously campaign 

related” standard, id. at 281, but the Fourth Circuit repeatedly distinguished Leake in denying 

plaintiff’s preliminary injunction in this case. RTAO, 575 F.3d at 348-49. In addition, Leake

pre-dates Citizens United, which upheld disclosure for any broadcast communication that 

mentions a candidate in the pre-election periods, with no reference whatsoever to any 

“unambiguously campaign-related” standard, although that standard was proposed to the Court 

by amicus Committee for Truth in Politics.5

 Thus, Leake’s conclusion that the far broader 

campaign finance restrictions at issue there were unconstitutional has no application here. 

 Finally, RTAO contends (Opp. at 22-25) that Congress adopted a narrow “magic words” 

definition of express advocacy when it defined an “independent expenditure” as “an expenditure 

by a person” “expressly advocating the election or defeat of a clearly identified candidate,” 

2 U.S.C. § 431(17), but there is no support for that claim. Congress simply codified the words 

 

5

 See Brief for Committee for Truth in Politics, Inc. as Amicus Curiae Supporting 

Appellant, Citizens United, 130 S. Ct. 876, No. 08-205, available at 

ttp://www.fec.gov/law/litigation/citizens_united_sc_08_ctp_brief_amici.pdf. 

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“expressly advocating,” without defining or limiting them. RTAO argues that Congress intended 

to limit independent expenditures to communications containing “magic words” because, RTAO 

claims, “[w]hen Congress passed its ‘independent expenditure’ definition, it was everyone’s 

understanding that it applied only to non-coordinated ‘expenditures’ for magic-words express 

advocacy.” (Opp. at 24). However, RTAO offers nothing but speculation about what 

“everyone’s understanding” was — let alone anything relevant about what Congress’s 

understanding might have been. In any event, RTAO also fails to show that Buckley itself 

intended to mandate a magic words limitation on express advocacy in all future contexts. 

Contrary to plaintiff’s arguments, Congress has in effect endorsed section 100.22(b)’s 

definition of express advocacy. When Congress enacted the electioneering communication 

provisions, it specified that nothing in the definition of “electioneering communication” “shall be 

construed to affect the interpretation or application of section 100.22(b) of title 11, Code of 

Federal Regulations.” 2 U.S.C. § 434(f)(3)(A)(ii). Thus, Congress not only registered no 

objection to section 100.22(b), but specifically directed that its amendments to FECA should not 

be construed to affect the regulation. RTAO’s arguments about congressional intent thus run 

directly contrary to this statutory provision that singles out the Commission’s express advocacy 

regulation for protection. 

C. The Commission’s Application of the Supreme Court’s “Major Purpose” 

Test to Determine Political Committee Status Is Constitutional 

As the Commission explained (Br. at 39-45), the Commission’s case-by-case approach to 

determining political committee status, including its application of the “major purpose” test, is 

constitutional. This Court and the Fourth Circuit correctly found that RTAO was unlikely to 

succeed on the merits on this claim and no subsequent event has undermined those decisions. 

See RTAO, 575 F.3d at 350-51; RTAO, 2008 WL 4416282, at *14. 

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In Buckley, the Supreme Court established the “major purpose” test to limit the definition 

of “political committee” to organizations controlled by a candidate or whose major purpose is the 

nomination or election of a candidate. Buckley, 424 U.S. at 79. The assessment of major 

purpose is inherently comparative, so the Commission considers a number of factors, not merely 

the “organic” documents and “unambiguously campaign related” expenditures that RTAO claims 

(Br. at 36-37) are the only criteria that the Constitution allows to be considered. Courts have 

endorsed the Commission’s more flexible, realistic approach, including evaluation of public 

statements and spending and contributions, FEC v. Malenick, 310 F. Supp. 2d 230, 234-37 

(D.D.C. 2004), and statements in brochures and communications sent to potential and actual 

contributors, FEC v. GOPAC, Inc., 917 F. Supp. 851, 859 (D.D.C. 1996). 

RTAO challenges a 2007 statement of the Commission’s approach written to explain why 

the Commission chose to reject a rulemaking request to expand the types of organizations that 

would be considered political committees. Political Committee Status, 72 Fed. Reg. 5595, 5596-

97 (Feb. 7, 2007). However, this approach was upheld in Shays v. FEC, 511 F. Supp. 2d 19 

(D.D.C. 2007); indeed, that decision criticized the Commission’s approach for being too narrow

and potentially excluding some organizations whose major purpose might be considered the 

election of candidates. Id. at 26-27; see FEC Br. at 42-43 n.23. 

 RTAO’s basic claim seems to be that it is unconstitutional for an organization that is not 

a political committee to be deemed a political committee (Opp. at 15), but that argument merely 

begs the question of how to identify organizations whose major purpose is nominating or 

electing candidates. RTAO relies in particular on the statement in Citizens United that it would 

be burdensome for corporations generally (not political committees) to be required to finance 

independent expenditures with a separate segregated fund. See 130 S. Ct. at 897. However, this 

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argument still fails to answer the real question about how to define “political committee.” And 

Citizens United did nothing to undermine the Supreme Court’s facial upholding of the political 

committee requirements more than three decades ago. See Buckley, 424 U.S. at 665-666. 

RTAO does not challenge any determination the Commission has actually made as to 

RTAO’s own political committee status — there has been none — or, indeed, as to any particular 

entity. RTAO does say that it “does not believe it should be deemed a PAC [political 

committee],” Opp. at 15, but the Commission has never asserted that RTAO is a political 

committee, and based on the group’s current inactivity, there is no apparent basis on which to 

make such a determination. 

Moreover, even if RTAO were to engage in activity sufficient for it to become eligible 

for political committee status, the applicable requirements would not be significantly more 

burdensome than the independent expenditure reporting requirements, which plaintiff does not 

challenge here. As the D.C. Circuit recently recognized in reviewing the regulatory requirements 

for political committees, the burdens of the additional reporting requirements “are minimal,” and 

the organizational requirements do not “impose much of an additional burden,” when compared 

to independent expenditure reporting. See SpeechNow.org, 599 F.3d at 697-98. Indeed, given 

Citizens United’s upholding of disclosure requirements made by entities that are not political 

committees for a category of communications that covers far more than express advocacy, 

plaintiff’s claim about the potential burdens of political committee status is even weaker than it 

was before this Court and the Fourth Circuit denied preliminary relief. For these reasons, the 

Commission’s application of the “major purpose” test in determining political committee status 

is constitutional. 

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22

III. CONCLUSION 

For the foregoing reasons, plaintiff’s motion for a preliminary injunction should be 

denied and this Court should enter summary judgment in favor of the Commission. 

Respectfully submitted, 

 /s/ 

Audra Hale-Maddox, Attorney, ahale-maddox@fec.gov 

VA Bar No. 46929 

Phillip Christopher Hughey, Acting General Counsel, chughey@fec.gov 

David Kolker, Associate General Counsel, dkolker@fec.gov 

Harry Summers, Assistant General Counsel, hsummers@fec.gov 

Claire Rajan, Attorney, crajan@fec.gov 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street NW 

Washington, DC 20463 

Telephone: (202) 694-1650 

Fax: (202) 219-0260 

Case 3:08-cv-00483-JRS Document 151 Filed 12/06/10 Page 27 of 28
CERTIFICATE OF SERVICE

I hereby certify that on the 6th day of December, 2010, I will electronically file the 

foregoing with the Clerk of Court using the CM/ECF system, which will then send a notification 

of such filing (NEF) to the following: 

Michael Boos, michael.boos@gte.net 

Attorney & Counselor at Law 

4101 Chain Bridge Road, Suite 313 

Fairfax, VA 22030 

James Bopp, Jr., jboppjr@aol.com 

Barry Alan Bostrom, bbostrom@bopplaw.com 

Kaylan Phillips, kphillips@bopplaw.com 

Richard Eugene Coleson, rcoleson@bopplaw.com 

Bopp, Coleson and Bostrom 

1 South 6th St. 

Terre Haute, IN 47807-3510 

John Richard Griffiths, john.griffiths@usdoj.gov 

United States Department of Justice 

Civil Division, Federal Programs Branch 

Post Office Box 883 

Washington, DC 20044 

Debra Jean Prillaman, debra.prillaman@usdoj.gov 

Office Of The U.S. Attorney 

600 East Main Street, Suite 1800 

Richmond, VA 23219 

Respectfully submitted, 

 /s/ 

Audra Hale-Maddox 

VA Bar No. 46929 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street NW 

Washington, DC 20463 

Telephone: (202) 694-1650 

Fax: (202) 219-0260 

ahale-maddox@fec.gov 

Case 3:08-cv-00483-JRS Document 151 Filed 12/06/10 Page 28 of 28