RECORD NO. 08-5223 

THE LEX GROUPDC♦ 1750 K Street, NW ♦ Suite 475 ♦ Washington, DC 20006 

(202) 955-0001 ♦ (800) 815-3791 ♦ Fax: (202) 955-0022 ♦ www.thelexgroupdc.com 

ORAL ARGUMENT HAS NOT YET BEEN SCHEDULED 

In The 

United States Court of Appeals 

For The District of Columbia Circuit 

SPEECHNOW.ORG; DAVID KEATING; 

FRED M. YOUNG, JR.; EDWARD H. CRANE, III; 

BRAD RUSSO; SCOTT BURKHARDT, 

 Plaintiffs - Appellants, 

v. 

FEDERAL ELECTION COMMISSION, 

Defendant - Appellee.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

______________

BRIEF OF APPELLANTS ______________

William H. Mellor Stephen M. Hoersting 

*Steven M. Simpson Bradley A. Smith 

Robert W. Gall CENTER FOR COMPETITIVE POLITICS

Robert P. Frommer 124 West Street South, Suite 201 

Paul M. Sherman Alexandria, Virginia 22314 

INSTITUTE FOR JUSTICE (703) 894-6800 

901 North Glebe Road, Suite 900 

Arlington, Virginia 22203 

(703) 682-9320 

Counsel for Appellants 

Dated: August 24, 2009 

Case: 08-5223 Document: 1202536 Filed: 08/24/2009 Page: 1
i

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES

A. Parties & Amici 

The parties in the district court were plaintiffs SpeechNow.org, David 

Keating, Fred M. Young, Jr., Edward H. Crane, III, Brad Russo, and Scott 

Burkhardt; and defendant Federal Election Commission. All parties below are 

parties before this Court in this appeal. 

Amici below for the defendant were the Campaign Legal Center and 

Democracy 21. 

B. Rulings Under Review 

The rulings under review are contained within the district court’s 

Memorandum Order issued July 1, 2008, by the Hon. James Robertson, denying 

Plaintiffs’ Motion for Preliminary Injunction. The district court’s opinion is 

published at SpeechNow.org v. FEC, 567 F. Supp. 2d 70 (D.D.C. 2008). The 

rulings under review and judgment being appealed are set forth in the Joint 

Appendix at pp. 372-399. 

C. Related Cases 

The case on review has not previously been before this or any other court 

apart from the original proceeding in the district court. The merits of this case are 

governed by 2 U.S.C. § 437h, which requires the district court to “immediately . . . 

certify all questions of constitutionality of [the Federal Election Campaign Act] to 

Case: 08-5223 Document: 1202536 Filed: 08/24/2009 Page: 2
ii

the United States court of appeals for the circuit involved, which shall hear the 

matter sitting en banc.” The district court has not yet certified the merits to the en 

banc Circuit. 

Case: 08-5223 Document: 1202536 Filed: 08/24/2009 Page: 3
iii

CORPORATE DISCLOSURE STATEMENT 

Plaintiff-Appellant SpeechNow.org is an unincorporated association 

organized under the District of Columbia Uniform Unincorporated Nonprofit 

Associations Act, D.C. Code § 29-971.01-.15. SpeechNow.org was formed for the 

purpose of protecting the First Amendment at the ballot box by expressly 

advocating the election of federal candidates who support First Amendment rights 

and the defeat of candidates who oppose those rights. 

SpeechNow.org has no parent company and there is no publicly held 

company that has a 10% or greater ownership interest in SpeechNow.org. No 

member of SpeechNow.org has issued shares or debt securities to the public. 

Case: 08-5223 Document: 1202536 Filed: 08/24/2009 Page: 4
iv

TABLE OF CONTENTS 

Page 

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES ..............i 

CORPORATE DISCLOSURE STATEMENT ....................................................... iii 

TABLE OF CONTENTS..........................................................................................iv 

TABLE OF AUTHORITIES ....................................................................................vi 

GLOSSARY............................................................................................................xiv 

STATEMENT OF JURISDICTION..........................................................................1 

STATEMENT OF THE ISSUES...............................................................................1 

STATUTES AND REGULATIONS.........................................................................2 

INTRODUCTION .....................................................................................................2 

STATEMENT OF FACTS ........................................................................................6 

I. Structure and Operations of SpeechNow.org........................................7 

II. SpeechNow.org’s Planned Political Advertisements............................9 

III. The Application of the Federal Election Campaign Act to 

SpeechNow.org ...................................................................................11 

IV. SpeechNow.org’s Advisory Opinion Request ....................................15 

 

V. Proceedings Below..............................................................................17 

STANDARD OF REVIEW .....................................................................................19 

SUMMARY OF ARGUMENT ...............................................................................20 

Case: 08-5223 Document: 1202536 Filed: 08/24/2009 Page: 5
v

ARGUMENT ...........................................................................................................24 

I. SpeechNow.org Is Substantially Likely to Prevail on the Merits 

of Its As-Applied Challenge to the Contribution Limits.....................25 

A. As Applied to SpeechNow.org and Its Supporters, the 

Contribution Limits are Subject to Strict Scrutiny ...................25 

B. Plaintiffs are Substantially Likely to Prevail on the 

Merits Even if Strict Scrutiny Does Not Apply........................32 

1. As a Matter of Law, SpeechNow.org’s 

Independent Political Advocacy—and the 

Contributions That Fund It—Pose No Risk of 

Corruption.......................................................................33 

2. The FEC’s Alleged Interest in More Informative 

Disclaimers Does Not Justify Limiting 

Contributions to SpeechNow.org ...................................41 

II. SpeechNow.org Has Successfully Demonstrated the Other 

Elements of a Preliminary Injunction .................................................44 

A. Plaintiffs Have Suffered Irreparable Harm and Will 

Continue To Be Harmed Unless a Preliminary Injunction 

Is Granted..................................................................................45 

B. A Preliminary Injunction Will Not Substantially Injure 

the FEC .....................................................................................54 

C. Granting an Injunction Will Further the Public Interest...........56 

CONCLUSION........................................................................................................58 

CERTIFICATE OF COMPLIANCE 

CERTIFICATE OF FILING AND SERVICE 

Case: 08-5223 Document: 1202536 Filed: 08/24/2009 Page: 6
vi

TABLE OF AUTHORITIES 

*Authorities upon which we chiefly rely are marked with asterisks 

Page(s) 

CASES 

ACLU v. Reno, 

217 F.3d 162 (3d Cir. 2000) ..........................................................................54

Ashcroft v. ACLU, 

 542 U.S. 656 (2004).......................................................................................25

Austin v. Mich. Chamber of Commerce, 

 494 U.S. 652 (1990).......................................................................................36

Bl(a)ck Tea Soc’y v. City of Boston, 

 378 F.3d 8 (1st Cir. 2004)..............................................................................48

Bronx Household of Faith v. Bd. of Educ., 

 331 F.3d 342 (2d Cir. 2003) ..........................................................................45

Buckley v. Am. Constitutional Law Found., 

 525 U.S. 182 (1999).......................................................................................28

*Buckley v. Valeo, 

 424 U.S. 1 (1976)................................................ 20, 26, 31, 32, 33, 36, 39, 46 

Cal. Democratic Party v. Jones, 

 530 U.S. 567 (2000).......................................................................................50

*Cal. Med. Ass’n v. FEC, 

 453 U.S. 182 (1981)...........................................................................30, 39, 40

*Chaplaincy of Full Gospel Churches v. England, 

 454 F.3d 290 (D.C. Cir. 2006)...........................................................24, 45, 48 

*Citizens Against Rent Control v. City of Berkeley, 

 454 U.S. 290 (1981)...................................... 26, 27, 28, 29, 30, 31, 32, 42, 48 

Case: 08-5223 Document: 1202536 Filed: 08/24/2009 Page: 7
vii

Cobell v. Norton, 

 225 F.R.D. 41 (D.D.C. 2004) ........................................................................58

Colo. Republican Fed. Campaign Comm. v. FEC, 

 518 U.S. 604 (1996).................................................................................33, 36

Comm. on Jobs Candidate Advocacy Fund v. Herrera, 

 No. 07-03199, 2007 U.S. Dist. LEXIS 73736 

 (N.D. Cal. Sept. 20, 2007) .................................................................41, 48, 58

*Davis v. FEC, 

 128 S. Ct. 2759 (2008).................................................................26, 28, 48, 49 

Davis v. Pension Benefit Guar. Corp., 

 No. 08-5524, 2009 U.S. App. LEXIS 15318 

 (D.C. Cir. July 10, 2009) ...............................................................................19

Democratic Party v. Wis. ex rel. La Follette, 

 450 U.S. 107 (1981).................................................................................50, 51

*Elrod v. Burns, 

 427 U.S. 347 (1976).......................................................................................45

FEC v. Beaumont, 

539 U.S. 146 (2003).......................................................................................31

FEC v. Colo. Republican Fed. Campaign Comm., 

 533 U.S. 431 (2001).......................................................................................31

*FEC v. Mass. Citizens for Life, Inc., 

 479 U.S. 238 (1986)............................................ 20, 26, 31, 43, 44, 46, 50, 55

*FEC v. Nat’l Conservative Political Action Committee, 

 470 U.S. 480 (1985)........................................................ 20, 30, 31, 32, 33, 36

*FEC v. Wis. Right to Life, Inc., 

 551 U.S. 449 (2007)...................... 6, 22, 23, 25, 28, 36, 37, 49, 51, 53, 55, 56 

First Nat’l Bank of Boston v. Bellotti, 

 435 U.S. 765 (1978).................................................................................20, 28 

Case: 08-5223 Document: 1202536 Filed: 08/24/2009 Page: 8
viii

Garrison v. Louisiana, 

 379 U.S. 64 (1964).........................................................................................57

Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 

 546 U.S. 418 (2006).......................................................................................25 

*Grant v. Meyer, 

 828 F.2d 1446 (10th Cir. 1987), aff’d, 

 486 U.S. 414 (1988)........................................................................... 28, 49-50

Johnson v. Bergland, 

 586 F.2d 993 (4th Cir. 1978) .........................................................................48

LaRouche v. Fowler, 

 152 F.3d 974 (D.C. Cir. 1998).......................................................................51

McConnell v. FEC, 

540 U.S. 93 (2003).......................................................... 29, 33, 35, 36, 39, 40

McIntyre v. Ohio Elections Comm’n, 

 514 U.S. 334 (1995).......................................................................................28

Miller v. Gammie, 

 335 F.3d 889 (9th Cir. 2003) .........................................................................36

Mills v. Alabama, 

 384 U.S. 214 (1966).......................................................................................57 

*Mills v. District of Columbia, 

 No. 08-7127, 2009 U.S. App. LEXIS 15324 

 (D.C. Cir. July 10, 2009) ...............................................................................45

NAACP v. Ala. ex rel. Patterson, 

 357 U.S. 449 (1958).......................................................................................26 

*N.C. Right to Life, Inc. v. Leake, 

 525 F.3d 274 (4th Cir. 2008) .......................................................32, 34, 35, 40 

Newsom v. Norris, 

 888 F.2d 371 (6th Cir. 1989) .........................................................................48

Case: 08-5223 Document: 1202536 Filed: 08/24/2009 Page: 9
ix

New York Times Co. v. Sullivan, 

 376 U.S. 254 (1964).......................................................................................57 

Ogden v. Marendt, 

 264 F. Supp. 2d 785 (S.D. Ind. 2003)............................................................58

Pac. Frontier v. Pleasant Grove City, 

 414 F.3d 1221 (10th Cir. 2005)...............................................................48, 56 

People for the Ethical Treatment of Animals v. Gittens, 

 215 F. Supp. 2d 120 (D.D.C. 2002)...............................................................56

Phelps-Roper v. Nixon, 

 545 F.3d 685 (8th Cir. 2008) .........................................................................56

Randall v. Sorrell, 

 548 U.S. 230 (2006).......................................................................................32 

Ripon Soc’y, Inc. v. Nat’l Republican Party, 

 525 F.2d 567 (D.C. Cir. 1975).......................................................................51

Roth v. United States, 

 354 U.S. 476 (1957).......................................................................................20

Sammartano v. First Judicial Dist. Court, 

 303 F.3d 959 (9th Cir. 2002) .........................................................................56

SpeechNow.org v. FEC, 

 No. 1:08-cv-00248 (D.D.C. Aug. 18, 2009)..................................................19 

Smith v. Bd. of Election Comm’rs, 

 591 F. Supp. 70 (N.D. Ill. 1984)....................................................................58

Temple Univ. v. White, 

 941 F.2d 201 (3d Cir. 1991) ..........................................................................58

United States v. Playboy Entm’t Group, 

 529 U.S. 803 (2000).................................................................................21, 55 

Case: 08-5223 Document: 1202536 Filed: 08/24/2009 Page: 10
x

Walters v. Nat’l Ass’n of Radiation Survivors, 

 468 U.S. 1323 (1984) ....................................................................................55 

Whitney v. California, 

 274 U.S. 357 (1927).......................................................................................57

Wis. Right to Life, Inc. v. FEC, 

 546 U.S. 410 (2006).......................................................................................23

STATUTES 

2 U.S.C. § 431............................................................................................................2 

2 U.S.C. § 431-55.....................................................................................................48 

2 U.S.C. § 431(4) .........................................................................................13, 15, 16 

2 U.S.C. § 431(8) .........................................................................................13, 15, 16 

2 U.S.C. § 431(9) ...............................................................................................13, 16 

2 U.S.C. § 431(17) .............................................................................................12, 38 

2 U.S.C. § 432..........................................................................................2, 14, 16, 42 

2 U.S.C. § 433..........................................................................................2, 14, 16, 42 

2 U.S.C. § 434..........................................................................................2, 14, 16, 42 

2 U.S.C. § 434(c) .....................................................................................................12 

2 U.S.C. § 437f.....................................................................................................2, 15 

2 U.S.C. § 437h..........................................................................................1, 2, 18, 19 

2 U.S.C. § 441a ..........................................................................................................2 

2 U.S.C. § 441a(a)(1)(C)..................................................................11, 13, 15, 16, 48 

2 U.S.C. § 441a(a)(3).............................................................................11, 15, 16, 48 

Case: 08-5223 Document: 1202536 Filed: 08/24/2009 Page: 11
xi

2 U.S.C. § 441a(a)(3)(B)..........................................................................................14 

2 U.S.C. § 441a(a)(7)(B)......................................................................................9, 39 

2 U.S.C. § 441a(a)(7)(C)............................................................................................9 

2 U.S.C. § 441a(f) ....................................................................................................39 

2 U.S.C. § 441d..........................................................................................................2 

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

2 U.S.C. § 441d(d)(2)...............................................................................................12 

2 U.S.C. § 441i...........................................................................................................2 

2 U.S.C. § 441i(e) ....................................................................................................39 

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

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

28 U.S.C. § 1657......................................................................................................19 

28 U.S.C. § 2201........................................................................................................1 

Cal. Gov. Code § 84506(a) ..................................................................................2, 44 

District of Columbia Unincorporated Nonprofit Associations Act, 

D.C. Code § 29-971.01-.15....................................................................................2, 8 

Wash. Rev. Code § 42.17.510(4).........................................................................2, 44 

REGULATIONS 

11 C.F.R. § 100.16 ...............................................................................................2, 34 

11 C.F.R. § 109 ..........................................................................................................9 

11 C.F.R. § 109.21 .....................................................................................................2 

Case: 08-5223 Document: 1202536 Filed: 08/24/2009 Page: 12
xii

11 C.F.R. § 109.21(b)(1)....................................................................................34, 39 

11 C.F.R. § 110.11 .....................................................................................................2 

11 C.F.R. § 110.11(a)(2)..........................................................................................43 

11 C.F.R. § 112.4 .................................................................................................2, 15 

11 C.F.R. § 112.4(a).................................................................................................15 

11 C.F.R. § 114.10 .....................................................................................................2 

11 C.F.R. § 114.10(c)...............................................................................................43 

RULE 

Fed. R. Civ. P. 65(c).................................................................................................58 

OTHER AUTHORITIES 

Antonin Scalia, The Rule of Law as a Law of Rules, 

 56 U. Chi. L. Rev. 1175, 1177 (1989)...........................................................36 

Clean Money, Clean Elections Act of 2009, 

 H.R. 2056, 111th Cong. (2009)................................................................47 

FEC Advisory Op. 2009-02, 

True Patriot Network, LLC (Apr. 17, 2009) available at

http://saos.nictusa.com/aodocs/AOR%202009-02%20(TPN)final.pdf 

(last visited Aug. 21, 2009)......................................................................................43 

H.R. Con. Res. 13, 111th Cong. (2009)...................................................................47 

H.J.R. Res. 13, 111th Cong. (2009).........................................................................47 

Let the People Decide Clean Campaign Act, 

H.R. 158, 111th Cong. (2009) .......................................................................47 

Case: 08-5223 Document: 1202536 Filed: 08/24/2009 Page: 13
xiii

Press Release, FEC, 

Disclosure Reports Added to FEC Webpage (Jan. 2, 1998) available at 

http://www.fec.gov/press/press1998/imagweb.htm 

(last visited Aug. 20, 2009)......................................................................................44 

Case: 08-5223 Document: 1202536 Filed: 08/24/2009 Page: 14
xiv

GLOSSARY 

AOR Advisory Opinion Request 

BCRA Bipartisan Campaign Reform Act of 2002, Pub. L. 107-155, 116 Stat. 

81 (codified in scattered sections of 2 U.S.C.). 

FEC Federal Election Commission 

FECA Federal Election Campaign Act 

PAC Political Action Committee, a political committee as defined by 2 

U.S.C. § 431(4)(A). 

Case: 08-5223 Document: 1202536 Filed: 08/24/2009 Page: 15
1

STATEMENT OF JURISDICTION

The district court had jurisdiction over this case under 28 U.S.C. §§ 1331 

and 2201 because Plaintiffs-Appellants sought a declaratory judgment on a federal 

question: whether various provisions of the Federal Election Campaign Act 

(FECA) were constitutional as applied to their proposed activities. The district 

court also had jurisdiction under 2 U.S.C. § 437h, because the individual PlaintiffsAppellants are eligible to vote in an election for the office of President and sought 

a declaratory judgment concerning the constitutionality of provisions of FECA. 

This Court has jurisdiction under 28 U.S.C. § 1292(a)(1) because this is an 

appeal from a denial of a motion for preliminary injunction for which direct review 

with the Supreme Court is not available. The district court denied PlaintiffsAppellants’ motion for preliminary injunction on July 1, 2008. PlaintiffsAppellants timely filed their notice of appeal on July 22, 2008. 

STATEMENT OF THE ISSUES 

Did the district court err by failing to preliminarily enjoin contribution limits 

that apply to SpeechNow.org, a group that accepts funds only from individuals, 

spends those funds only on independent political advocacy, and is independent of 

political candidates and party committees? 

Case: 08-5223 Document: 1202536 Filed: 08/24/2009 Page: 16
2

STATUTES AND REGULATIONS 

 An addendum contains the following: 

2 U.S.C. §§ 431-34, 437f, 437h, 441a, 441d, 441i 

11 C.F.R. §§ 100.16, 109.21, 110.11, 112.4, 114.10 

Cal. Gov. Code § 84506(a) 

D.C. Code §§ 29-971.01-.15 

Wash. Rev. Code § 42.17.510(4) 

INTRODUCTION 

This case presents a constitutional challenge to campaign-finance laws that 

prevent individuals from joining together to exercise their First Amendment rights 

to speak and associate. Plaintiffs-Appellants (collectively “SpeechNow.org”) are 

an independent group of citizens whose mission is to engage in express advocacy 

in favor of candidates who support the First Amendment and against those who do 

not. Toward that end, SpeechNow.org would like to run advertisements urging 

voters to elect federal candidates who support full protections for First Amendment 

rights and to defeat candidates who are hostile to those rights. In 2008, when this 

case was filed, SpeechNow.org had prepared scripts for four television ads and was 

prepared to produce the ads, purchase the air time, and begin broadcasting those 

ads. Plaintiffs-Appellants David Keating, Edward Crane, Fred Young and others 

were prepared to donate the necessary funds to SpeechNow.org to finance the ads. 

Case: 08-5223 Document: 1202536 Filed: 08/24/2009 Page: 17
3

Unfortunately, certain provisions of the federal campaign-finance laws prevent 

SpeechNow.org from producing and broadcasting these ads. On July 1, 2008, the 

district court denied SpeechNow.org’s motion to preliminarily enjoin those laws. 

This appeal followed. 

Under the campaign-finance laws, SpeechNow.org is considered a “political 

committee” because it is a group of individuals who will raise and spend more than 

$1,000 to expressly advocate the election or defeat of candidates for federal office. 

Political committees are subject to contribution limits that prevent them from 

accepting donations of more than $5,000 from any individual in a calendar year. 

Those same laws prevent individuals from making donations to such committees 

exceeding $5,000 per year. Penalties for violations of contribution limits include 

civil and criminal fines and even jail time. 

As a result, SpeechNow.org cannot accept the amounts that Messrs. Keating, 

Crane, Young and others wish to donate to fund its political ads, and the group 

cannot produce and broadcast its ads. Television advertisements do not come 

cheap. Even running a few ads in one congressional race can cost upwards of 

$500,000. To get SpeechNow.org up and running effectively therefore requires a 

core group of donors to donate more than $5,000 apiece. The contribution limits 

thus harm not only SpeechNow.org and those who wish to donate more than 

$5,000 each; they also harm smaller donors who agree with SpeechNow.org’s 

Case: 08-5223 Document: 1202536 Filed: 08/24/2009 Page: 18
4

message and wish to add their voices to that message, albeit by donating less than 

$5,000. Two such donors, Brad Russo and Scott Burkhardt, also join this suit as 

Plaintiffs. 

In short, the campaign-finance laws treat SpeechNow.org as though it were a 

full-fledged political action committee, or PAC. But there is a crucial difference 

between SpeechNow.org and the PACs and party committees that the Supreme 

Court has held raise concerns about corruption that justify contribution limits. 

SpeechNow.org will make only independent expenditures—that is, it will spend its 

own money on its own speech entirely independently of the candidates it supports 

or opposes. It will not make direct contributions to candidates. 

Independent expenditures are the very essence of political speech. The 

Supreme Court has repeatedly recognized that protecting independent expenditures 

is crucial to maintaining a balance between campaign-finance laws and the robust 

political debate that the First Amendment was designed to preserve. It has never 

held or implied that independent expenditures create concerns about corruption as 

do direct contributions to candidates. 

David Keating, the president of SpeechNow.org, established the group with 

this in mind. He wrote right into its bylaws restrictions that avoid any of the 

concerns the Supreme Court has raised about corruption. SpeechNow.org cannot 

Case: 08-5223 Document: 1202536 Filed: 08/24/2009 Page: 19
5

make contributions to candidates, it accepts no corporate or union funds, and it 

cannot coordinate its activities with candidates or party committees. 

The theory of SpeechNow.org’s case is simple. If a group’s independent 

expenditures cannot create concerns about corruption, and the group is confined to 

making only independent expenditures, then the money that goes to fund those 

independent expenditures cannot create concerns about corruption either. As a 

result, requiring it to become a PAC and limiting its contributions is 

unconstitutional under the First Amendment. The Supreme Court’s campaignfinance cases do not grant government a roving commission to limit anything it 

chooses to call a “contribution.” Instead, that case law requires the government to 

justify its limitations by demonstrating that they serve the purpose of eliminating 

corruption. 

The district court ignored this basic truth. Claiming that SpeechNow.org’s 

argument exhibited a “crabbed” view of corruption, the district court denied its 

motion for preliminary injunction, finding that applying contribution limits to 

SpeechNow.org served the government’s interest in preventing circumvention of 

the campaign-finance laws. However, just two years ago, the Supreme Court 

concluded that “[e]nough is enough” and rejected the claim that preventing 

circumvention justified requiring another independent speech group to organize as 

Case: 08-5223 Document: 1202536 Filed: 08/24/2009 Page: 20
6

a PAC. FEC v. Wis. Right to Life, Inc. (WRTL II), 551 U.S. 449, 478 (2007). The 

same basic principle applies here as well. 

In short, too much concern for circumventing the campaign-finance laws 

necessarily translates into too little concern for circumventing the First 

Amendment. The district court’s denial of SpeechNow.org’s motion for 

preliminary injunction should be reversed, and SpeechNow.org should be 

permitted to run ads in the 2010 election cycle while the merits of this case are 

being litigated. 

STATEMENT OF FACTS 

Plaintiff David Keating created SpeechNow.org because he believes that 

promoting the issue of free speech and exposing the threats posed to it by 

campaign-finance laws are vital to the future of the nation. J.A. 51. He wants 

individuals who share his concern to be able to associate by pooling their funds so 

they can speak out as loudly and effectively in favor of First Amendment rights as 

possible. J.A. 51. Because federal elections provide a rare opportunity both to 

impact public policy—by affecting the political futures of the candidates who 

make it—and to influence public debate, David believes that running 

advertisements calling for the election or defeat of candidates based on their 

support for free speech and association is the most effective way for private 

citizens to protect those rights. J.A. 51. In David’s view, if individuals acting 

Case: 08-5223 Document: 1202536 Filed: 08/24/2009 Page: 21
7

alone are permitted to spend unlimited amounts of money advocating the election 

or defeat of candidates for office—as the Supreme Court has held they are—there 

is absolutely no reason why groups of individuals should be prevented from doing 

the same thing. David created SpeechNow.org to give ordinary Americans the 

ability to band together to achieve these purposes. J.A. 51. 

II. Structure and Operations of SpeechNow.org. 

SpeechNow.org is a nonprofit “political organization” registered under 

Section 527 of the Internal Revenue Code. SpeechNow.org plans to solicit 

donations from individuals for funds to cover operating expenses and to buy 

public, political advertising to promote the election or defeat of candidates based 

on their positions on free speech and associational rights. J.A. 53. 

SpeechNow.org’s solicitations will inform potential donors that their donations 

may be used for political advertising that will advocate the election or defeat of 

candidates to federal office based on their support for First Amendment rights. 

J.A. 53. SpeechNow.org will also advise its donors that their donations are not tax 

deductible. J.A. 54. Some of SpeechNow.org’s solicitations will refer to particular 

candidates for federal office by name. J.A. 53. 

Unlike many other types of political organizations, SpeechNow.org’s 

structure and operations are specifically designed to avoid any risk of “corruption” 

that the Supreme Court has found sufficiently compelling to justify campaignCase: 08-5223 Document: 1202536 Filed: 08/24/2009 Page: 22
8

finance laws. First, SpeechNow.org will operate solely on private donations from 

individuals who are legally permitted to spend money to influence federal 

elections. J.A. 79. SpeechNow.org will not accept, directly or indirectly, 

donations from corporations, unions, national banks, federal-government 

contractors, foreign nationals, or political committees. J.A. 84. 

Second, in addition to refusing donations from corporations, SpeechNow.org 

itself is unincorporated, having been organized under the District of Columbia 

Uniform Unincorporated Nonprofit Associations Act, D.C. Code sections 29-

971.01-.15. J.A. 74-76. Indeed, SpeechNow.org’s bylaws prohibit it from 

engaging in business activities or offering to any donors or members any benefit 

that is a disincentive for them to disassociate themselves from SpeechNow.org on 

the basis of the organization’s position on a political issue. J.A. 83. These 

provisions ensure that all funds raised by SpeechNow.org come solely from 

individuals who wish to support its cause. As the district court concluded, this 

ensures that SpeechNow.org does not pose any risk of so-called “corporate-form” 

corruption. J.A. 396-97 (Slip op. at 25-26 n.10). 

Finally, SpeechNow.org’s bylaws require it to operate wholly independently 

of political candidates, committees, and parties. J.A. 84-85. SpeechNow.org 

cannot make contributions or donations of any kind directly or indirectly to any 

FEC-regulated candidate or political committee, and it cannot “coordinate” its 

Case: 08-5223 Document: 1202536 Filed: 08/24/2009 Page: 23
9

activities, as defined in 2 U.S.C. §§ 441a(a)(7)(B) & (C) and 11 C.F.R. part 109, 

with any candidates, national, state, district, or local political-party committees, or 

their agents. J.A. 83-85. 

II. SpeechNow.org’s Planned Political Advertisements. 

SpeechNow.org wants to run political advertisements in 2010 and in future 

election cycles. J.A. 21, 54; Decl. of David Keating in Supp. Pls.’ Mot. to 

Expedite Consideration of Appeal from Denial of Prelim. Inj. ¶¶ 6, 7. In 2007, 

SpeechNow.org had planned to run TV and radio ads during the 2008 election 

cycle, and it prepared television scripts and obtained cost estimates for four such 

advertisements. J.A. 54, 95-99. Ultimately, however, SpeechNow.org was 

prevented from producing and broadcasting its ads when the district court denied 

its motion for preliminary injunction. 

Two of SpeechNow.org’s planned advertisements called for the defeat of 

Dan Burton, a Republican Congressman who was then running for reelection in the 

fifth district of Indiana. Both ads criticized Representative Burton for voting for a 

bill that would restrict the speech of many public-interest groups. The first urged 

voters to “Say no to Burton for Congress.” J.A. 96. The second stated, “Dan 

Burton voted to restrict our rights. Don’t let him do it again.” J.A. 97. 

SpeechNow.org planned to broadcast these advertisements in Representative 

Burton’s district. J.A. 55. 

Case: 08-5223 Document: 1202536 Filed: 08/24/2009 Page: 24
10

The other two advertisements called for the defeat of Mary Landrieu, a 

Democratic Senator then running for reelection in Lousiana. Both ads criticized 

Landrieu for voting for the same law that Representative Burton had supported. 

The first urged voters to “Say no to Landrieu for Senate.” J.A. 98. The second 

concluded by saying, “Our founding fathers made free speech the First 

Amendment to the Constitution. Mary Landrieu is taking that right away. Don’t 

let her do it again.” J.A. 99. SpeechNow.org wanted to broadcast these 

advertisements in Louisiana. J.A. 55. 

The cost to produce these advertisements would have been approximately 

$12,000. J.A. 55. The cost to air the advertisements would have depended on the 

number of times they were run and the size of the audience SpeechNow.org 

wanted to reach. J.A. 55-56, 100-01, 106. Ideally, David Keating wanted to run 

the ads often enough to allow their target audience to view them at least ten times, 

but that would have cost roughly $400,000. J.A. 56. A less expensive option 

would have been simply to run the ads fewer times. J.A. 55-56. 

SpeechNow.org knows of at least four individuals who are willing, ready, 

and able to donate funds that will allow it to produce and broadcast advertisements 

like those described above. J.A. 23, 57. David Keating is willing to donate 

$5,500. J.A. 57-58. Edward Crane is willing to donate $6,000. J.A. 104. Richard 

Marder is willing to donate $5,500. J.A. 57-58. Fred M. Young is willing to 

Case: 08-5223 Document: 1202536 Filed: 08/24/2009 Page: 25
11

donate $110,000. J.A.116-17. However, under the federal campaign-finance laws, 

these individuals may not make their donations and SpeechNow.org may not 

accept them because they are over the limits contained in 2 U.S.C. 

§§ 441a(a)(1)(C) and 441a(a)(3). 

SpeechNow.org also knows of two individuals who are willing to donate 

amounts under the contribution limits. Plaintiffs Brad Russo and Scott Burkhardt 

are each willing to donate $100 to SpeechNow.org. J.A. 49, 120. Even though 

Plaintiffs Russo and Burkhardt could not themselves finance the production and 

broadcast of SpeechNow.org’s ads, they wish to associate with SpeechNow.org’s 

other supporters in order to amplify their voices and reach an audience far greater 

than they would be able to achieve without SpeechNow.org. J.A. 48, 119. 

However, because SpeechNow.org cannot become a functioning organization 

without accepting contributions above the $5,000 limit, it cannot operate at all and 

thus cannot accept donations even below the contribution limits. J.A. 61-62. 

III. The Application of the Federal Election Campaign Act to 

SpeechNow.org. 

Under the Federal Election Campaign Act (FECA), SpeechNow.org’s 

expenditures for advertisements would be “independent expenditures.” 

Independent expenditures are expenditures by a person “expressly advocating the 

election or defeat of a clearly identified candidate” that are “not made in concert or 

cooperation with or at the request or suggestion of such candidate, the candidate’s 

Case: 08-5223 Document: 1202536 Filed: 08/24/2009 Page: 26
12

authorized political committee, or their agents, or a political party committee or its 

agents.” 2 U.S.C. § 431(17). SpeechNow.org will comply with all disclaimer and 

reporting obligations for those who make independent expenditures under the 

campaign-finance laws. J.A. 57, 82. For instance, under 2 U.S.C. § 441d(a), 

SpeechNow.org’s advertisements and other communications will include its name, 

address and telephone number or World Wide Web address, along with a statement 

indicating that the communication was paid for by SpeechNow.org and was not 

authorized by any candidate or candidate’s committee. J.A. 57, 82. Under 2 

U.S.C. § 441d(d)(2), SpeechNow.org’s advertisements will also include a 

statement indicating that SpeechNow.org is responsible for the content of the 

advertisement. J.A. 57, 82. And, as required by 2 U.S.C. § 434(c), 

SpeechNow.org will file statements with the FEC reporting its donations and its 

donors’ identities as well as its expenditures. J.A. 57, 82. 

At the same time, however, if SpeechNow.org accepts any of the donations 

that Messrs. Keating, Crane, or Young are prepared to make or produces and 

broadcasts advertisements like those identified above, SpeechNow.org will 

immediately become a “political committee”—or PAC—and be subject to all 

regulations that apply to PACs, including limits on contributions. 

A “political committee” is “any committee, club, association, or other group 

of persons which receives contributions aggregating in excess of $1,000 during a 

Case: 08-5223 Document: 1202536 Filed: 08/24/2009 Page: 27
13

calendar year or which makes expenditures aggregating in excess of $1,000 during 

a calendar year . . . .” 2 U.S.C. § 431(4). A “contribution” includes “any gift, 

subscription, loan, advance, or deposit of money or anything of value made by any 

person for the purpose of influencing any election for Federal office . . . .” Id. 

§ 431(8). “Expenditure” includes “any purchase, payment, distribution, loan, 

advance, deposit, gift of money or anything of value, made by any person for the 

purpose of influencing any election for Federal office . . . .” Id. § 431(9). 

Under these provisions, SpeechNow.org would become a political 

committee if it accepted any of the donations from Messrs. Keating, Crane, or 

Young because they would be made “for the purpose of influencing” a federal 

election. J.A. 57-58, 103, 115-16. Likewise, if SpeechNow.org spent the money 

necessary to produce and broadcast the ads for which it has scripts, it would also 

become a political committee because those expenditures would be made “for the 

purpose of influencing” a federal election. J.A. 60-61. 

Political committees are subject to limits on the contributions they may 

accept. Two limits in particular would apply to SpeechNow.org and its donors. 

Under 2 U.S.C. § 441a(a)(1)(C), SpeechNow.org and its donors would be subject 

to annual contribution limits of $5,000 from any one person; and under 2 U.S.C. 

§ 441a(a)(1)(C), supporters of SpeechNow.org would be subject to biennial 

aggregate limits of $69,900 for contributions to political committees and parties 

Case: 08-5223 Document: 1202536 Filed: 08/24/2009 Page: 28
14

and $115,500 for all contributions to candidates, political committees and party 

committees. J.A. 160-62, 366-67. Under these provisions, Plaintiffs Keating, 

Crane, and Young cannot make the donations to SpeechNow.org that they are 

ready, willing, and able to make and SpeechNow.org cannot accept those 

donations.1

In addition to being subject to contribution limits, political committees are 

subject to burdensome organizational, administrative, and reporting requirements. 

These include, among other things, the obligation to file a statement of 

organization, appoint a treasurer, maintain records of all contributions and 

expenditures for three years, and file regular reports disclosing detailed 

information concerning the amounts of all contributions and expenditures, the 

identities of all contributors, persons who provide any dividend or interest to the 

committee, the identities of those to whom expenditures are made, and the 

committees’ operating expenses, among other information. See 2 U.S.C. §§ 432, 

433, 434; J.A. 160, 366-67. While SpeechNow.org is challenging the application 

 

1

 The biennial aggregate limit applicable to Mr. Young’s donation has been 

adjusted for inflation since the time this case was filed. However, Mr. Young’s 

pledged contribution of $110,000 would still exceed this limit for two reasons. 

First, Mr. Young’s contribution would exceed the $69,900 limit on contributions to 

groups other than candidate committees. 2 U.S.C. § 441a(a)(3)(B). Second, Mr. 

Young has already made more than $5,500 in candidate contributions during the 

2010 election cycle, meaning that a $110,000 contribution to SpeechNow.org 

would bring him over the $115,500 aggregate limit. FEC, Advanced Individual 

Search, http://www.fec.gov/finance/disclosure/advindsea.shtml (search for name 

“Young, Fred,” city “Racine,” state “Wisconsin,” date range from “01/01/2009”). 

Case: 08-5223 Document: 1202536 Filed: 08/24/2009 Page: 29
15

of these provisions to it in the merits case, it sought to enjoin only the application 

of contribution limits in its motion for preliminary injunction. 

IV. SpeechNow.org’s Advisory Opinion Request. 

On November 19, 2007, SpeechNow.org filed a request for an advisory 

opinion (AOR) with the FEC pursuant to 2 U.S.C. § 437f. The request presented, 

in essence, three questions: (1) Must SpeechNow.org register as a political 

committee as defined in 2 U.S.C. § 431(4), and, if so, when? (2) Are donations to 

SpeechNow.org “contributions” (as defined in 2 U.S.C. § 431(8)) subject to the 

limits described in 2 U.S.C. § 441a(a)(1)(C)? (3) Must an individual donor to 

SpeechNow.org count his donations to the group among the contributions 

applicable to his biennial aggregate contribution limit described in 2 U.S.C. 

§ 441a(a)(3)? J.A. 127-28. 

Under FEC rules, the Commission is required to issue a written advisory 

opinion within sixty days of accepting a request. 11 C.F.R. § 112.4(a). If it is 

unable to render an advisory opinion within that time, the rules state that the FEC 

“shall issue a written response stating that the Commission was unable to approve” 

the request by a required vote of four commissioners. Id. The FEC issued its 

response to SpeechNow.org’s AOR on January 28, 2008. J.A. 146. Because the 

FEC was at the time without a full complement of commissioners, it lacked a 

quorum and thus could not issue an advisory opinion in response to 

Case: 08-5223 Document: 1202536 Filed: 08/24/2009 Page: 30
16

SpeechNow.org’s request. Accordingly, under FEC rules, SpeechNow.org’s 

request was not approved. J.A. 146-47. 

However, the general counsel’s office of the FEC issued a draft advisory 

opinion in response to SpeechNow.org’s AOR. J.A. 148-68. The draft advisory 

opinion concluded that, among other things, the donations Messrs. Keating, Crane, 

and Young wish to make to SpeechNow.org would be “contributions” under 2 

U.S.C. § 431(8); expenditures by SpeechNow.org on advertisements calling for the 

election or defeat of candidates for federal office would be “expenditures” under 2 

U.S.C. § 431(9); SpeechNow.org has a “major purpose” of campaign activity; 

accepting the contributions noted above to fund its advertisements would make 

SpeechNow.org a “political committee” under § 431(4); as a political committee, 

SpeechNow.org would be subject to the contribution limits contained in 2 U.S.C. 

§§ 441a(a)(1)(C) and 441a(a)(3) and the registration, administrative and reporting 

requirements for political committees contained in 2 U.S.C. §§ 432, 433, and 434. 

J.A. 148-68. In short, the draft advisory opinion concluded that the campaignfinance laws prohibit SpeechNow.org from accepting donations that exceed the 

contribution limits in 2 U.S.C. §§ 441a(a)(1)(C) and 441a(a)(3) to fund its 

advertisements. 

The application of the PAC requirements and contribution limits to 

SpeechNow.org places the organization and its supporters in an impossible 

Case: 08-5223 Document: 1202536 Filed: 08/24/2009 Page: 31
17

position. If SpeechNow.org accepts the donations that Messrs. Crane, Young, and 

Keating want to make, it immediately becomes a “political committee,” making 

those donations illegal and subjecting both SpeechNow.org and those who make 

the donations to civil and criminal liability. If it does not accept those donations, 

SpeechNow.org cannot produce and broadcast its advertisements and fulfill its 

mission. J.A. 58. Moreover, if it does not accept donations above the contribution 

limits, SpeechNow.org will not only be unable to produce the ads it currently 

wants to run, it will be prevented from obtaining the funding necessary to begin 

operations and to allow it to raise additional funds to produce and broadcast 

additional advertisements. J.A. 58. 

V. Proceedings Below. 

On February 14, 2008, SpeechNow.org filed its complaint in this case along 

with a motion for preliminary injunction. The motion sought to enjoin the 

contribution limits that would prevent SpeechNow.org from raising the money 

necessary to begin producing and broadcasting advertisements. Although 

Speechnow.org challenges the administrative and continuous reporting 

requirements for PACs in its merits case, it sought to enjoin only the contribution 

limits. Thus, if this Court reverses the district court, SpeechNow.org will comply 

with the same administrative and disclosure requirements that PACs comply with 

while the merits of its case are litigated. 

Case: 08-5223 Document: 1202536 Filed: 08/24/2009 Page: 32
18

The district court heard argument on SpeechNow.org’s motion on April 11, 

2008, and denied the motion on July 1, 2008. SpeechNow.org timely appealed the 

denial of its motion for preliminary injunction on July 22, 2008. 

In the merits case, SpeechNow.org is proceeding under 2 U.S.C. § 437h, 

which allows certain constitutional challenges to the campaign-finance laws to be 

certified immediately to an en banc hearing before the court of appeals after the 

district court makes factual findings. Speechnow.org moved for certification of 

five issues in its case,2

 which the district court ultimately granted on July 11, 

2008.3

 The parties conducted discovery during the late summer and fall of 2008 

and submitted proposed findings of fact and briefs on various issues related to the 

proposed findings. That briefing was completed on January 13, 2009. 

In the meantime, this Court initially scheduled opening briefs in this appeal 

to be due on December 1, 2008. Because SpeechNow.org expected the merits of 

this case to receive expedited consideration under 2 U.S.C. § 437h, and because it 

could not have received a ruling on this appeal in time to run ads for the 2008 

 

2

 While “SpeechNow.org” is used throughout this brief to refer collectively to the 

Plaintiffs-Appellants, SpeechNow.org itself is ineligible for certification under 2 

U.S.C. § 437h because it is an organization. Thus, the en banc hearing will consist 

only of the individual plaintiffs, who will assert both their own rights to speak and 

associate through SpeechNow.org and their rights to create a group such as 

SpeechNow.org to do so. 

3

 The district court initially denied the motion for certification in its order denying 

the motion for preliminary injunction, but it later reversed this decision when 

SpeechNow.org filed a motion for reconsideration. 

Case: 08-5223 Document: 1202536 Filed: 08/24/2009 Page: 33
19

primary or general elections, SpeechNow.org moved to hold this appeal in 

abeyance while the district court proceeded with certification under § 437h. See 

Appellants’ Unopposed Mot. to Suspend Briefing Schedule & Hold Appeal in 

Abeyance. When it became clear that certification to the Court of Appeals might 

not occur before August 31, 2009, SpeechNow.org asked this Court to reactivate 

its appeal so that it might secure a preliminary injunction in time to run ads for the 

2010 primary-election season. See Appellants’ Mot. to Remove Case from 

Abeyance & Issue Briefing Schedule. After receiving the briefing schedule for this 

appeal, SpeechNow.org moved for expedited consideration under 28 U.S.C. 

§ 1657, which this Court granted on July 24, 2009. Recently, the district court 

entered an order directing the clerk to set a hearing on the parties’ proposed 

findings of fact for the week of September 14, 2008. SpeechNow.org v. FEC, No. 

1:08-cv-00248 (D.D.C. Aug. 18, 2009). 

STANDARD OF REVIEW

“This Court review[s] a district court’s weighing of the four preliminary 

injunction factors and its ultimate decision to issue or deny such relief for abuse of 

discretion.” Davis v. Pension Benefit Guar. Corp., No. 08-5524, 2009 U.S. App. 

LEXIS 15318, at *5 (D.C. Cir. July 10, 2009) (internal quotation marks omitted). 

However, “[l]egal conclusions—including whether the movant has established 

irreparable harm—are reviewed de novo.” Id.

Case: 08-5223 Document: 1202536 Filed: 08/24/2009 Page: 34
20

SUMMARY OF ARGUMENT 

SpeechNow.org’s independent expenditures are at the very core of the First 

Amendment’s protections. As the Supreme Court has repeatedly stated, a 

fundamental purpose of the First Amendment was to protect the discussion of 

governmental affairs, and, in particular, of candidates, in order to “‘assure [the] 

unfettered interchange of ideas for the bringing about of political and social 

changes desired by the people.’” Buckley v. Valeo, 424 U.S. 1, 14 (1976) (quoting 

Roth v. United States, 354 U.S. 476, 484 (1957)). Thus, the First Amendment 

protects vigorous advocacy intended to influence the outcome of elections no less 

than the discussion of ideas. See First Nat’l Bank of Boston v. Bellotti, 435 U.S. 

765, 790 (1978). Accordingly, SpeechNow.org’s independent expenditures 

“produce speech at the core of the First Amendment.” FEC v. Nat’l Conservative 

Political Action Comm. (NCPAC), 470 U.S. 480, 493 (1985); see also FEC v. 

Mass. Citizens for Life, Inc. (MCFL), 479 U.S. 238, 251 (1986) (plurality opinion); 

Buckley, 424 U.S. at 39. 

As a result, it is unconstitutional for the government to limit 

SpeechNow.org’s political speech without a sufficient reason for doing so. That is 

true regardless of what level of scrutiny applies to SpeechNow.org’s challenge to 

the contribution limits. In a case that implicates First Amendment rights, the 

burden is squarely on the government to demonstrate a sufficient reason for 

Case: 08-5223 Document: 1202536 Filed: 08/24/2009 Page: 35
21

limiting those rights. United States v. Playboy Entm’t Group, 529 U.S. 803, 816 

(2000). That is, and must be, the starting point of any analysis of laws that burden 

First Amendment rights if decisions are to be based on the substance of the rights 

and the restrictions that apply to them, rather than on formalistic distinctions. 

Here, the contribution limits clearly burden SpeechNow.org’s First 

Amendment rights to speech and association because they require SpeechNow.org 

and its supporters to choose between their rights to speech and their rights to 

association. As a result, strict scrutiny applies to SpeechNow.org’s challenge. 

Even if strict scrutiny does not apply, however, the FEC cannot prevail because it 

can demonstrate no sufficient interest in applying contribution limits to 

SpeechNow.org. The reason is simple. No matter what arguments the FEC makes 

or what alleged evidence it cites, it cannot escape the fact that SpeechNow.org will 

only engage in speech that that Supreme Court has repeatedly held lies at the very 

core of the First Amendment. SpeechNow.org will make only independent 

expenditures, and independent expenditures cause no concerns about corruption. It 

is thus immaterial that the limit at issue here directly apply to contributions rather 

than expenditures, because that money will be used to fund only independent 

expenditures and SpeechNow.org is completely independent of candidates and 

party committees. Those facts sever any possible link between the money alleged 

to be corrupting and the candidates that would allegedly be corrupted by it. The 

Case: 08-5223 Document: 1202536 Filed: 08/24/2009 Page: 36
22

only way to avoid that fact is to hold that independent expenditures themselves 

cause corruption, which is what the district court, in essence, did. 

Despite the Supreme Court’s repeated denials that independent expenditures 

cause corruption, the district court concluded that the time was right for lower 

courts to decide that the evidence proves otherwise. J.A. 388-89. Relegating the 

crucial concept of independence to second-class status, the district court concluded 

that “shadow parties”—that is, independent groups—were using their “nominally 

independent” status to, in essence, avoid the spirit of the campaign finance laws 

and spend too much money affecting the outcome of elections. J.A. 383. The 

district court thus did precisely what the Supreme Court recently warned against in 

WRTL II. It relied on the alleged intentions of a number of groups not at issue in 

this case to uphold onerous burdens on an independent group’s speech out of 

concern that that speech might lead to gratitude by candidates who might be 

motivated to give the group’s donors access and special favors. J.A. 391-93. 

Precisely this sort of reasoning led the Supreme Court to state in WRTL II that 

“[e]nough is enough” and to reject an approach in campaign-finance cases that will 

necessarily result in an endlessly widening gyre of regulations and the continued 

erosion of freedom of speech. See 551 U.S. at 478-79 (rejecting “prophylaxisupon-prophylaxis approach to regulating expression . . . .”). 

Case: 08-5223 Document: 1202536 Filed: 08/24/2009 Page: 37
23

The district court also ignored another aspect of the WRTL cases—the 

importance of as-applied challenges. In WRTL I, a unanimous Supreme Court held 

that as-applied challenges to campaign-finance laws are available even where the 

Court has recently upheld their facial validity. See Wis. Right to Life, Inc. v. FEC 

(WRTL I), 546 U.S. 410, 411-12 (2006). In WRTL II, the Court held that the 

government must demonstrate a sufficient interest in limiting speech for “each 

application” of a statute. 551 U.S. at 478. Yet the district court here denied 

SpeechNow.org’s request for a preliminary injunction by focusing on the 

application of the law to virtually every group other than SpeechNow.org. J.A. 

382-83, 391-93. 

There is simply no way to square the district court’s approach to this case 

with Supreme Court precedent protecting independent expenditures. The basic 

flaw in its analysis—that the importance of independent expenditures can be set 

aside in favor of preventing the possible circumvention of campaign-finance 

laws—permeated the court’s entire decision. It thus concluded not only that 

SpeechNow.org lacked a substantial likelihood of success on the merits, but also 

that SpeechNow.org could not demonstrate a sufficient level of irreparable harm. 

But the harm to SpeechNow.org and its supporters is clear. Contribution limits 

force each of them to choose between exercising their First Amendment right to 

make unlimited independent expenditures and exercising their right to associate 

Case: 08-5223 Document: 1202536 Filed: 08/24/2009 Page: 38
24

with others. Each of the Plaintiffs-Appellants may do either of those things, but 

none may do both. While any of them as individuals may spend as much as they 

want on independent expenditures, as soon as they join together in 

SpeechNow.org, they are limited to $5,000 apiece. As a result of this restriction, 

SpeechNow.org cannot raise sufficient funds to speak out as it wishes, and its 

supporters are deprived of the right to associate with others to exercise their First 

Amendment rights. 

The district court was wrong to conclude that SpeechNow.org lacked a 

substantial likelihood of success on the merits and wrong to conclude that it failed 

to demonstrate irreparable harm and the other factors necessary for a preliminary 

injunction. The district court’s decision should be reversed. 

ARGUMENT 

To warrant a preliminary injunction, SpeechNow.org was required to show 

“(1) a substantial likelihood of success on the merits, (2) that it would suffer 

irreparable injury if the injunction were not granted, (3) that an injunction would 

not substantially injure other interested parties, and (4) that the public interest 

would be furthered by the injunction.” Chaplaincy of Full Gospel Churches v. 

England, 454 F.3d 290, 297 (D.C. Cir. 2006). As demonstrated below, 

SpeechNow.org met this burden, and the district court’s contrary decision should 

be reversed. 

Case: 08-5223 Document: 1202536 Filed: 08/24/2009 Page: 39
25

I. SpeechNow.org Is Substantially Likely to Prevail on the Merits of Its 

As-Applied Challenge to the Contribution Limits.

Because this is a First Amendment challenge and the burden of proof at the 

preliminary injunction stage tracks the burden of proof at trial, the burden is on the 

FEC to show that SpeechNow.org does not have a likelihood of success on the 

merits. See Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 

418, 429 (2006); Ashcroft v. ACLU, 542 U.S. 656, 666 (2004). The FEC should 

properly have to demonstrate that the contribution limits as applied to 

SpeechNow.org meet strict scrutiny, because the limits impose a substantial burden 

on speech. See, e.g., WRTL II, 551 U.S. at 464. The district court’s application of 

intermediate scrutiny was thus error and its decision should be reversed on that 

ground alone. However, even if intermediate scrutiny were the appropriate 

standard, the district court’s application of that standard was flawed. 

SpeechNow.org is substantially likely to prevail even under intermediate scrutiny, 

because limits on SpeechNow.org’s ability to fund independent political advocacy 

do not further any substantial government interest. 

A. As Applied to SpeechNow.org and Its Supporters, the 

Contribution Limits Are Subject to Strict Scrutiny. 

Burdens on core political speech are reviewed under strict scrutiny, meaning 

that the government must demonstrate a compelling state interest and narrow 

tailoring. WRTL II, 551 U.S. at 464 (“Because BCRA § 203 burdens political 

Case: 08-5223 Document: 1202536 Filed: 08/24/2009 Page: 40
26

speech, it is subject to strict scrutiny.”); see also Davis v. FEC, 128 S. Ct. 2759, 

2772 (2008) (collecting cases). The contribution limits at issue in this case place 

substantial burdens on both the right to speak and the right to associate. 

SpeechNow.org offers its contributors the opportunity to amplify their own 

political voices by making independent expenditures, which “constitute expression 

at the core of our electoral process and of the First Amendment freedoms.” MCFL, 

479 U.S. at 254 (quoting Buckley, 424 U.S. at 39). Individuals like David Keating, 

Richard Marder, Ed Crane, Brad Russo, and Scott Burkhardt lack the resources to 

finance these expenditures on their own. J.A. 48, 62, 103, 119. Fred Young has 

the resources, but he lacks the experience or the time to do so effectively. J.A. 

116. Only by pooling their resources—both money and political know-how—can 

they effectively advocate for the changes they seek. This fact is not lost on the 

Supreme Court, which has long recognized that “[e]ffective advocacy of both 

public and private points of view, particularly controversial ones, is undeniably 

enhanced by group association . . . .” NAACP v. Alabama ex rel. Patterson, 357 

U.S. 449, 460 (1958); see also Citizens Against Rent Control v. City of Berkeley, 

454 U.S. 290, 299-300 (1981) (stating that the purpose of the right of association is 

to allow individuals to amplify their voices by associating with others). 

The contribution limits that apply to SpeechNow.org, however, put its 

supporters in a constitutionally untenable position: They may each spend 

Case: 08-5223 Document: 1202536 Filed: 08/24/2009 Page: 41
27

unlimited amounts of money alone advocating for or against candidates or they 

may associate with others and may each spend only $5,000 apiece, but they may 

not both associate with others and spend unlimited amounts for independent 

advocacy—that is, they may not do what they wish to do through SpeechNow.org. 

Indeed, the FEC itself recognizes that this is the choice that SpeechNow.org and its 

supporters face. In its briefs below, the FEC blithely stated that SpeechNow.org 

cannot demonstrate any harm from the contribution limits at all because Fred 

Young may simply forgo his right of association and finance SpeechNow.org’s 

proposed advertisements alone. Def.’s Mem. Opp’n Pls.’ Mot. Prelim. Inj. at 34. 

The Supreme Court has repeatedly held that laws requiring citizens to 

choose among First Amendment rights are subject to strict scrutiny. Thus, in 

Citizens Against Rent Control the Court applied strict scrutiny to a state law 

limiting contributions to a group that wanted to advocate passage of a ballot issue 

because the law imposed burdens on groups that it did not impose on individuals. 

Case: 08-5223 Document: 1202536 Filed: 08/24/2009 Page: 42
28

454 U.S. at 296.4 Similarly, in Davis v. FEC, the Supreme Court just last year 

applied strict scrutiny and struck down a differential contribution limit that forced 

candidates to “choose between the First Amendment right to engage in unfettered 

political speech and subjection to discriminatory fundraising limitations.” 128 S. 

Ct. at 2771. And in WRTL II, the Court applied strict scrutiny to BCRA’s 

requirement that a group become a PAC in order to spend money for issue 

advocacy that came within the electioneering-communications ban. 551 U.S. at 

464. Likewise, here, the FEC seeks to require SpeechNow.org to become a PAC 

and become subject to PAC contribution limits for making only independent 

 

4

 The district court concluded that the Supreme Court applied something less than 

strict scrutiny in Citizens Against Rent Control because it used the term “exacting” 

rather than “strict.” J.A. 387. But this is semantics. SpeechNow.org’s position is 

that the FEC must demonstrate a compelling interest and narrow tailoring. The 

Supreme Court has called this level of scrutiny “exacting” before. Buckley v. Am. 

Constitutional Law Found., 525 U.S. 182, 192 n.12, 204 (1999); McIntyre v. Ohio 

Elections Comm’n, 514 U.S. 334, 347 (1995). While the Court did not use any 

particular terms to describe what it meant by “exacting scrutiny” in Citizens 

Against Rent Control, it did reverse the California Supreme Court, which had 

upheld the law under strict scrutiny. 454 U.S. at 293-94, 298-99. Moreover, the 

Supreme Court stated that the law must be tailored to fit the State’s permissible 

interest. Id. at 294. This is the language of strict, rather than intermediate, 

scrutiny. See also Am. Constitutional Law Found., 525 U.S. at 207 (Thomas, J., 

concurring in the judgment) (noting that “[i]n Citizens Against Rent 

Control/Coalition for Fair Housing v. Berkeley, we subjected to strict scrutiny a 

city ordinance limiting contributions to committees formed to oppose ballot 

initiatives because it impermissibly burdened association and expression”); Grant 

v. Meyer, 828 F.2d 1446, 1457 (10th Cir. 1987) (en banc) (“Thus the reasoning of 

the dissent, which seeks to escape the strict scrutiny test for First Amendment 

restrictions, does not withstand analysis and that test must be followed as in 

Bellotti and Citizens Against Rent Control.”), aff’d, 486 U.S. 414 (1988). 

Case: 08-5223 Document: 1202536 Filed: 08/24/2009 Page: 43
29

expenditures. Finally, in McConnell v. FEC, the Supreme Court struck down a 

provision of BCRA that required political party committees to choose between 

making unlimited independent expenditures in support of candidates and 

contributions—in the form of coordinated expenditures—to those candidates. 540 

U.S. 93, 213-19 (2003). The same principle applies to independent expenditures 

by individuals—a campaign-finance law that “does not seek to mute the voice of 

one individual . . . cannot be allowed to hobble the collective expressions of a 

group.” Citizens Against Rent Control, 454 U.S. at 297. 

The contribution limits that apply to SpeechNow.org can also be 

characterized as a limit on expenditures. As the Supreme Court reasoned in 

Citizens Against Rent Control, a limit on contributions necessarily limits the funds 

that a group can spend on its own speech. The reason is simple. While an 

individual may make unlimited expenditures under a law that limits contributions, 

she may not “contribute beyond the . . . limit when joining with others to advocate 

common views. The contribution limit thus automatically affects expenditures, 

and limits on expenditures operate as a direct restraint on freedom of expression . . 

. .” Id. at 299; see also id. (“Placing limits on contributions which in turn limit 

expenditures plainly impairs freedom of expression.”). Thus, the contribution 

limits as applied to SpeechNow.org deserve strict scrutiny whether interpreted as a 

limit on its contributions or a limit on its independent expenditures. 

Case: 08-5223 Document: 1202536 Filed: 08/24/2009 Page: 44
30

However, the district court applied only intermediate scrutiny. Relying on 

California Medical Association v. FEC (CalMed), 453 U.S. 182 (1981), the court 

concluded that the contributions to SpeechNow.org were not entitled to full First 

Amendment protection because “SpeechNow, as a legally separate organization, is 

speaking as [the contributors’] proxy,” and held that “[t]he fact that donors would 

not contribute to SpeechNow unless they agreed with its views is beside the point . 

. . .” J.A. 386. But this conclusion is in direct conflict with the Supreme Court’s 

later ruling in NCPAC, which specifically rejected CalMed’s speech-by-proxy 

reasoning in the context of independent expenditures: 

[T]he “proxy speech” approach is not useful in this case [because] the 

contributors obviously like the message they are hearing from these 

organizations and want to add their voices to that message; otherwise they 

would not part with their money. To say that their collective action in 

pooling their resources to amplify their voices is not entitled to full First 

Amendment protection would subordinate the voices of those of modest 

means as opposed to those sufficiently wealthy to be able to buy expensive 

media ads with their own resources. 

470 U.S. at 495 (emphasis added). The Court came to the same basic conclusion 

in Citizens Against Rent Control, finding it “beyond question” that “[c]ontributions 

by individuals to support concerted action by a committee advocating a position on 

a ballot measure” were “a very significant form of political expression.” 454 U.S. 

at 298. 

The district court distinguished Citizens Against Rent Control on the ground 

that it involved a ballot-issue election, which the Supreme Court has held raise no 

Case: 08-5223 Document: 1202536 Filed: 08/24/2009 Page: 45
31

concerns about corruption. J.A. 387-88. But this ignores the Court’s discussion of 

the expressive nature of contributions in NCPAC, which, like this case, involved 

candidate elections. It also puts the cart before the horse—that is, it determines the 

level of scrutiny by reference to whether a limit on First Amendment activity might 

be justified by concerns about corruption. But the Supreme Court has long held 

the opposite—the level of scrutiny, “is based on the importance of the ‘political 

activity at issue’ to effective speech or political association,” not on the level of 

government interest in regulating the activity. FEC v. Beaumont, 539 U.S. 146, 

161 (2003); MCFL, 479 U.S. at 259; FEC v. Colo. Republican Fed. Campaign 

Comm. (Colorado II), 533 U.S. 431, 440-42 (2001). 

The key to distinguishing between Citizens Against Rent Control and 

NCPAC, on the one hand, and Buckley v. Valeo, in which the Court stated that 

limits on contributions to candidates imposed “only a marginal restriction” on 

expression,5

 on the other, lies in the entity to which the contribution is being given. 

A direct contribution to a candidate can be said to convey only the 

“undifferentiated, symbolic act of contributing” because it does not necessarily 

convey agreement with the candidate’s ideas. 424 U.S. at 21. A contribution to a 

group like SpeechNow.org, however, conveys agreement with its message. See

 

5

 424 U.S. at 20-21. 

Case: 08-5223 Document: 1202536 Filed: 08/24/2009 Page: 46
32

NCPAC, 470 U.S. at 495; Citizens Against Rent Control, 454 U.S. at 296. As a 

result, limits on contributions to SpeechNow.org deserve strict scrutiny. 

B. Plaintiffs Are Substantially Likely to Prevail on the Merits Even if 

Strict Scrutiny Does Not Apply. 

Even if SpeechNow.org’s claims were subject to intermediate scrutiny, the 

FEC would still bear the burden of establishing that the contribution limits are 

“closely drawn,” to serve a “sufficiently important interest.” Randall v. Sorrell, 

548 U.S. 230, 247 (2006) (quoting Buckley, 424 U.S. at 25). But, as the U.S. Court 

of Appeals for the Fourth Circuit recently recognized in a challenge to a virtually 

identical law, contribution limits like the ones that apply to SpeechNow.org and its 

donors cannot survive even this lower level of scrutiny. See N.C. Right to Life, 

Inc. v. Leake, 525 F.3d 274, 293-95 (4th Cir. 2008). 

The FEC alleged below that the contribution limits are closely drawn to 

serve three interests that it claimed are substantial: preventing political corruption, 

preventing the “distorting effects of immense aggregations of wealth,” and making 

required advertising disclaimers more informative. Def.’s Mem. Opp’n Pls. Mot. 

Prelim. Inj. at 18-27. The district court properly disposed of the second interest—

preventing electoral “distortion”—noting that it applies only to corporations and 

not to unincorporated groups like SpeechNow.org. J.A. 396-97 (Slip op. at 25-26 

n.10). But the district court accepted the government’s other two interests. This 

was error. The government’s interest in combating corruption cannot be advanced 

Case: 08-5223 Document: 1202536 Filed: 08/24/2009 Page: 47
33

by limiting contributions to groups whose only activity is independent political 

advocacy, which the Supreme Court has found not to cause corruption as a matter 

of law. See Buckley, 424 U.S. at 46-47; NCPAC, 470 U.S. at 497. Further, the 

FEC’s interest in ensuring the effectiveness of FECA’s advertising-disclaimer 

requirements is not substantial, nor are contribution limits a closely drawn means 

of advancing that interest. 

1. As a Matter of Law, SpeechNow.org’s Independent Political 

Advocacy—and the Contributions That Fund It—Pose No 

Risk of Corruption. 

Over the last 35 years the Supreme Court has reiterated time and again that 

independent expenditures—whether by individuals, PACs, or even political-party 

committees composed of federal officeholders—may not be limited because pure 

political advocacy poses no danger of corruption. See Buckley, 424 U.S. at 46-47; 

NCPAC, 470 U.S. at 497; Colo. Republican Fed. Campaign Comm. v. FEC 

(Colorado I), 518 U.S. 604, 614-19 (1996); McConnell, 540 U.S. at 221-22. 

Indeed, the Court in Buckley recognized that the continued availability of 

independent means of expression was crucial to its decision to uphold limits on 

direct contributions to candidates. See 424 U.S. at 28 (“The Act’s $1,000 

contribution limitation focuses precisely on the problem of large campaign 

contributions—the narrow aspect of political association where the actuality and 

potential for corruption have been identified—while leaving persons free to engage 

Case: 08-5223 Document: 1202536 Filed: 08/24/2009 Page: 48
34

in independent political expression . . . .”). The concept of independence plays a 

crucial role in the statutory scheme as well. Independent expenditures constitute 

the speech of the entity making them, whereas expenditures, even for speech, that 

are coordinated with a candidate are considered contributions to that candidate and 

may be limited. Compare 11 C.F.R. § 100.16 (defining “independent 

expenditure”) with 11 C.F.R. § 109.21(b)(1) (defining coordinated expenditures as 

regulable in-kind contributions). 

SpeechNow.org’s case against the contribution limits that apply to it is the 

simple and logical extension of these principles. SpeechNow.org’s electoral 

advocacy is limited to independent expenditures, which, as a matter of law, cannot 

create concerns about corruption. As a result, the contributions that fund those 

expenditures cannot create concerns about corruption either and thus cannot be 

limited. See Leake, 525 F.3d at 293 (“[I]t is ‘implausible’ that contributions to 

independent expenditure political committees are corrupting.”). Indeed, David 

Keating set up SpeechNow.org to take advantage of the fact that independent 

expenditures create no concerns about corruption. He wanted to give individuals 

the opportunity to take advantage of this fact to their benefit by allowing them to 

speak out and associate without having to navigate extremely complicated 

campaign-finance laws or have the amounts they wish to spend limited. 

Case: 08-5223 Document: 1202536 Filed: 08/24/2009 Page: 49
35

Nevertheless, the district court held that even if independent expenditures 

themselves do not create a risk of corruption, the contributions that fund them can. 

As the district court saw it, “‘[i]ndependence’ does not prevent candidates, 

officeholders, and party apparatchiks from being made aware of the identities of 

large donors” and “people who operate independent expenditure committees can 

have the kind of ‘close ties’ to federal parties and officeholders that render them 

‘uniquely positioned to serve as conduits for corruption, both in terms of the sale of 

access and the circumvention of the soft money ban.’” J.A. 390-91 (quoting 

McConnell, 540 U.S. at 156 n.51). 

This holding is both illogical and directly contrary to Supreme Court 

precedent. It is illogical because SpeechNow.org’s independence severs any 

connection between the donations that allegedly corrupt candidates and the 

candidates that might be corrupted. See Leake, 525 F.3d at 293 (“[T]he entities 

furthest removed from the candidate are political committees that make solely 

independent expenditures.”). There is simply no way around this. If the money an 

individual spends on his own independent expenditures does not corrupt candidates 

and thus may not be limited, it is senseless to claim that money coming from other 

individuals and paying for the same independent expenditures somehow does 

corrupt candidates and may be limited. The district court’s reasoning would create 

“the bizarre result that identical ads aired at the same time could be protected 

Case: 08-5223 Document: 1202536 Filed: 08/24/2009 Page: 50
36

speech for one speaker, while leading to criminal penalties for another.” WRTL II, 

551 U.S. at 468. 

The district court’s holding is contrary to precedent because the Supreme 

Court held in Buckley that independent expenditures do not cause concerns about 

corruption and has never suggested that that has changed. See 424 U.S. at 47. The 

district court avoided this by relying on the implicit suggestion in Buckley that 

independent expenditures might one day cause corruption, stating that the 

“Supreme Court has never held that, by definition, independent expenditures pose 

no threat of corruption” and that the Court in Buckley “explained that independent 

expenditures made by individuals ‘did not presently appear’ to pose a danger of 

corruption.” J.A. 388-89. However, while the Court may not have held that “by 

definition” independent expenditures do not cause corruption, it did hold as a 

matter of law that they do not. Buckley, 424 U.S. at 45-47; NCPAC, 480 U.S. at 

497-98. If that legal conclusion is to be changed, the Supreme Court is the proper 

authority to do so, not the district court. The Supreme Court has not chosen to do 

so in the last thirty years, however, and there is no indication that it is about to do 

so now. See, e.g., McConnell, 540 U.S. at 221-22 (reaffirming Buckley’s holding 

that limits on independent expenditures fail to serve any substantial government 

interest); Colorado I, 518 U.S. at 614-19 (same); NCPAC, 470 U.S. at 497 (same). 

Changing course on independent expenditures is the Supreme Court’s prerogative, 

Case: 08-5223 Document: 1202536 Filed: 08/24/2009 Page: 51
37

not the district court’s. See Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) 

(en banc) (“lower courts [are] bound not only by the holdings of higher courts’ 

decisions but also by their ‘mode of analysis.’”) (citing Antonin Scalia, The Rule of 

Law as a Law of Rules, 56 U. Chi. L. Rev. 1175, 1177 (1989)). 

The implications of the district court’s decision go far beyond the 

application of contribution limits to SpeechNow.org. If SpeechNow.org’s 

independent expenditures cause concerns about corruption, then individual 

independent expenditures must necessarily do so as well. Indeed, any activity that 

might lead to candidate gratitude is subject to limitation under the district court’s 

analysis—from issue advocacy, to celebrity and newspaper endorsements, to 

favorable press, to Internet commentary, to books and movies that support or 

criticize candidates. Cf. Austin v. Mich. Chamber of Commerce, 494 U.S. 652, 

690-91, 694-95 (1990) (Scalia, J., dissenting) (noting that any theory of 

“corruption” that allows regulation of independent expenditures would extend to 

speech by the media and celebrities). But this stretches the concept of corruption 

further than the Supreme Court has ever taken it before and is inconsistent with the 

Court’s recent admonitions that the rationales supporting campaign-finance laws 

cannot continually be expanded to cover ever-widening circles of speech. WRTL 

II, 551 at 478-79 (stating that “[e]nough is enough” and rejecting “prophylaxisupon-prophylaxis” approach to regulating speech). 

Case: 08-5223 Document: 1202536 Filed: 08/24/2009 Page: 52
38

The district court’s decision is a direct attack on the very concept of 

independence. The district court was not coy about this. It repeatedly placed 

“independence” in scare quotes and, relying on articles about independent groups 

and their spending on issue advocacy during the 2004 election, claimed that 

“nominally independent” “shadow parties” were able to spend millions on speech 

during that election. J.A. 390-91, 393. Even were SpeechNow.org to grant the 

truth of every claim in the sources on which the district court relied, it would prove 

nothing of relevance to this case. One may just as easily describe the groups the 

district court cited as heroes, bravely exercising their First Amendment rights to 

find the best, most effective way to impact elections and thus the future course of 

their government. But either way, the district court’s and the FEC’s disdain for 

independent advocacy of this variety is not a grounds for limiting their speech or 

the money that goes to fund it. It simply demonstrates that SpeechNow.org’s point 

in the preceding paragraph is true—if SpeechNow.org’s independent expenditures 

cause corruption, then so do expenditures for issue advocacy and anything else that 

individuals and groups may do in the exercise of their First Amendment rights 

during elections. 

Independence is not simply a constitutional principle; it is written into the 

fabric of the campaign-finance laws themselves. See, e.g., 2 U.S.C. § 431(17). 

The principle of independence boils down to this: any action not coordinated with 

Case: 08-5223 Document: 1202536 Filed: 08/24/2009 Page: 53
39

a candidate or party committee is independent.6 Thus, while independent 

expenditures may not be limited, expenditures that are coordinated with candidates 

are treated as contributions to those candidates and subjected to contribution limits. 

See 11 C.F.R. § 109.21(b)(1). If the district court’s conclusion that independent 

expenditures amount to indirect contributions to candidates is correct, it is not at all 

clear why SpeechNow.org’s—or any group’s—independent expenditures would 

not be considered contributions to candidates as well. Cf. Buckley, 424 U.S. at 46-

47. If the statutory concept of independence is to be changed, Congress ought to 

be the first to do so, not the courts. 

Finally, the district court relied on McConnell and CalMed for the 

proposition that contribution limits may be imposed on groups that make 

independent expenditures. J.A. 394-95. However, there is a crucial distinction 

between the groups at issue in both of these cases and SpeechNow.org. Both cases 

involved groups that could be used to funnel money to, or provide access directly 

to, candidates, which SpeechNow.org cannot do. CalMed involved a PAC that 

 

6

 FECA and the FEC’s rules define the distinction between coordination and 

independence in various ways. For example, FECA defines who are agents, 

officers, and employees of candidates, and who are not. See 2 U.S.C. §§ 441a(f), 

441i(e). It states that those organizations established, financed, maintained or 

controlled by candidates do not operate independently of candidates. See id. 

§ 441i(e). And it establishes what it means for an organization to coordinate its 

activities with a candidate and, thereby, to sacrifice its independence. See id. 

§ 441a(a)(7)(B). The district court’s conclusion that SpeechNow.org’s 

independence is only “nominal” ignores all of this. 

Case: 08-5223 Document: 1202536 Filed: 08/24/2009 Page: 54
40

could make both independent expenditures and direct contributions to candidates. 

453 U.S. at 197-99. SpeechNow.org can only make independent expenditures. 

McConnell dealt with political party committees that had a well-documented 

record of providing contributors with access to elected officials. 540 U.S. at 153-

54. SpeechNow.org is completely independent of candidates and party 

committees. It was the fact that the groups in CalMed and McConnell could make 

direct contributions to candidates or provide access to them—not the argument that 

independent expenditures themselves cause corruption—that persuaded the Court 

to uphold limits on the groups even though they made independent expenditures. 

Id. (“[I]t is the manner in which parties have sold access to federal candidates and 

officeholders that has given rise to the appearance of undue influence.”). 

Indeed, in CalMed, Justice Blackmun, who provide the crucial fifth vote, 

made this point clear in a concurring opinion. Justice Blackmun argued that it 

would be unconstitutional to apply contribution limits to a group “established for 

the purpose of making independent expenditures” and he joined the plurality’s 

decision in CalMed only because the group at issue made direct contributions to 

candidates as well. See 453 U.S. at 203 (Blackmun, J., concurring). Thus, while 

Justice Blackmun’s concurring opinion is not binding precedent, it makes clear that 

the district court’s reliance on CalMed is misplaced. See Leake, 525 F.3d at 292-

93 (relying on Justice Blackmun’s concurrence and striking down limits on to 

Case: 08-5223 Document: 1202536 Filed: 08/24/2009 Page: 55
41

independent expenditure groups); see also Comm. on Jobs Candidate Advocacy 

Fund v. Herrera, No. 07-03199, 2007 U.S. Dist. LEXIS 73736, at *16-17 (N.D. 

Cal. Sept. 20, 2007) (preliminarily enjoining law that limited contributions to 

independent groups). 

In sum, the FEC cannot demonstrate a sufficient interest in limiting 

contributions to SpeechNow.org. Accordingly, limits on those contributions fail 

even intermediate scrutiny. 

2. The FEC’s Alleged Interest in More Informative 

Disclaimers Does Not Justify Limiting Contributions to 

SpeechNow.org. 

The district court also held that contribution limits were necessary to ensure 

the proper functioning of FECA’s disclaimer requirements, which require groups 

running political ads to identify themselves on the face of their ads. J.A. 396. The 

court reasoned that, under contribution limits, viewers reading a disclaimer can 

know that “no one person could have contributed more than $5,000 to the group 

running the ad,” and that, without limits, the public may be misled about the actual 

number of people supporting the group. J.A. 396. This ruling is completely 

unprecedented. While disclosure laws have been upheld as a means of aiding the 

enforcement of substantive campaign-finance limits, SpeechNow.org is unaware of 

any court that has upheld a substantive campaign-finance limit on the grounds that 

it makes a form of disclosure more effective. 

Case: 08-5223 Document: 1202536 Filed: 08/24/2009 Page: 56
42

Indeed, the Supreme Court rejected a similar argument in Citizens Against 

Rent Control. There, the State argued that the contribution limits at issue were 

“necessary as a prophylactic measure to make known the identity of supporters and 

opponents of ballot measures.” 454 U.S. at 298. The Court rejected this argument 

on the grounds that a separate provision of the statute required the groups at issue 

to disclose their supporters. Id. Similarly, here, SpeechNow.org will disclose its 

donors under the disclosure provisions applicable to those who make independent 

expenditures. J.A. 57.7

 Congress is free to change the disclosure and disclaimer 

requirements that apply to those who make independent expenditures. But neither 

Congress nor the FEC may limit contributions or expenditures as a means of 

augmenting disclosure provisions. 

The district court’s conclusion that contribution limits are necessary to serve 

the interest of disclosure is also based on a false premise—that disclaimers are 

intended to inform the public of the individual donors who fund an independent 

expenditure, rather than to identify the organization that made the expenditure. 

When the organization is identified in a disclaimer, the public and the media can 

 

7

 Because SpeechNow.org only sought to enjoin the contribution limits in its 

motion for preliminary injunction, even if this Court reverses the district court’s 

decision, SpeechNow.org will comply with all disclosure and administrative 

requirements that apply to political action committees during the pendency of this 

lawsuit. See 2 U.S.C. §§ 432-34. 

Case: 08-5223 Document: 1202536 Filed: 08/24/2009 Page: 57
43

access FEC records on its website to learn the identities of those who have 

contributed money to it. 

Indeed, the FEC recently issued an advisory opinion allowing an individual 

to make independent expenditures through an LLC and to use disclaimers on his 

advertisements that identify only the LLC, not the individual providing the 

funding. FEC Advisory Op. 2009-02, True Patriot Network, LLC (Apr. 17, 2009) 

available at http://saos.nictusa.com/aodocs/AOR%202009-02%20(TPN)final.pdf 

(last visited Aug. 21, 2009). Thus, the FEC itself approves disclaimers that do not 

indicate how many individuals are funding an entity that makes independent 

expenditures or how much money they have provided. 

In fact, precisely the same things has been going on for decades. Since 

1986, qualified nonprofits—also known as MCFL organizations—have been able 

to make independent expenditures without becoming PACs or being subjected to 

contribution limits. See MCFL, 479 U.S. at 263-64.8

 Ads by MCFL organizations 

are subject to the same disclaimer requirement that applies to SpeechNow.org—

that is, they may disclose the name of their organization only. See 11 C.F.R. 

§ 110.11(a)(2). Yet MCFL organizations are not required to disclose their donors 

in their disclaimers nor has the FEC sought to impose different disclaimers 

 

8

 SpeechNow.org does not meet the definition of a qualified nonprofit because, 

among other things, it is not a 501(c)(4) and it will spend all or nearly all of its 

funds on political ads. See 11 C.F.R. § 114.10(c). 

Case: 08-5223 Document: 1202536 Filed: 08/24/2009 Page: 58
44

requirements on them to make the disclaimers more clear. Those who wish to 

know who funded an MCFL group’s independent expenditures may simply view 

their disclosure reports on the FEC’s website, just as they may do for 

SpeechNow.org. See Press Release, FEC, Disclosure Reports Added to FEC 

Webpage (Jan. 2, 1998) available at http://www.fec.gov/press /press1998/ 

imagweb.htm (last visited Aug. 20, 2009). 

Finally, even if there were a substantial government interest in making 

SpeechNow.org’s advertising disclaimers more informative than those of MCFL 

organizations, that interest could be met through means that were more closely 

tailored and that would not put substantive restrictions on SpeechNow.org’s 

fundraising. For example, both California and Washington require groups making 

independent expenditures to reveal the names of certain large donors in their 

advertising disclaimers. See Cal. Gov. Code § 84506(a); Wash. Rev. Code 

§ 42.17.510(4). Congress could do the same thing if this were truly an important 

issue. 

II. SpeechNow.org Has Successfully Demonstrated the Other Elements of a 

Preliminary Injunction.

 Because the district court erroneously ruled that SpeechNow.org was 

unlikely to succeed on the merits of its constitutional challenge, the court said 

virtually nothing about the remaining prongs of the preliminary injunction 

analysis: whether SpeechNow.org would suffer irreparable harm, whether an 

Case: 08-5223 Document: 1202536 Filed: 08/24/2009 Page: 59
45

injunction would harm the FEC, and whether an injunction would be in the public 

interest. But as SpeechNow.org amply demonstrated before the district court, and 

as is reiterated below, each of these additional factors weighs in favor of granting 

SpeechNow.org’s motion for preliminary injunction. 

A. Plaintiffs Have Suffered Irreparable Harm and Will Continue To 

Be Harmed Unless a Preliminary Injunction Is Granted. 

The district court’s conclusion that SpeechNow.org did not sufficiently 

demonstrate irreparable harm is wrong because, as this Court recently reaffirmed, 

“[i]t has long been established that the loss of constitutional freedoms, ‘for even 

minimal periods of time, unquestionably constitutes irreparable injury.’” Mills v. 

District of Columbia, 571 F.3d 1304, No. 08-7127, 2009 U.S. App. LEXIS 15324, 

at *20-21 (D.C. Cir. July 10, 2009) (quoting Elrod v. Burns, 427 U.S. 347, 373 

(1976) (plurality opinion) (“The loss of First Amendment freedoms, for even 

minimal periods of time, unquestionably constitutes irreparable injury.”). 

Furthermore, “[w]here a plaintiff alleges injury from a rule or regulation that 

directly limits speech, the irreparable nature of the harm may be presumed.” 

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

2006) (quoting Bronx Household of Faith v. Bd. of Educ., 331 F.3d 342, 349 (2d 

Cir. 2003)). In disregarding this clearly established law, the district court 

committed reversible error. 

Case: 08-5223 Document: 1202536 Filed: 08/24/2009 Page: 60
46

SpeechNow.org clearly demonstrated irreparable harm because the 

contribution limits directly limit its ability to engage in speech, in the form of 

independent expenditures, that “constitute[s] expression ‘at the core of our 

electoral process and of the First Amendment freedoms.’” MCFL, 479 U.S. at 251 

(quoting Buckley, 424 U.S. at 39). SpeechNow.org is presumed to be harmed and, 

indeed, it has been harmed: The application of contribution limits to the 

organization and the individual Plaintiffs-Appellants has prevented them from 

speaking through advertisements that effectively communicate their views on 

candidates. Under the contribution limits applicable to PACs, SpeechNow.org 

cannot possibly produce and run advertisements that communicate its (and its 

supporters’) views about candidates. Individual Plaintiffs-Appellants Keating, 

Crane, and Young, as well as Richard Marder, have been, and remain, ready, 

willing, and able to donate funds in excess of the contribution limits in order to 

give SpeechNow.org the money it needs to run those advertisements. J.A. 23. 

Because they cannot do so without facing punishment for breaking the law, 

SpeechNow.org could not run advertisements in the 2008 election season, and it 

cannot run them in the fast-approaching 2010 primary election season. 

That the harm to SpeechNow.org is irreparable is indisputable. 

SpeechNow.org will never, no matter what occurs on the merits, have an 

opportunity to speak in the 2008 elections again. Members of Congress elected in 

Case: 08-5223 Document: 1202536 Filed: 08/24/2009 Page: 61
47

2008 are now proposing added restrictions on political speech that not only reflect 

differing views, but that directly seek to limit the speech of SpeechNow.org and its 

supporters, even beyond the limits at issue in this case. See e.g., Clean Money, 

Clean Elections Act of 2009, H.R. 2056, 111th Cong. (2009); H.R. Con. Res. 13, 

111th Cong. (2009); H.J.R. Res. 13, 111th Cong. (2009) (proposing a 

constitutional amendment to allow regulation of independent expenditures in 

campaigns); Let the People Decide Clean Campaign Act, H.R. 158, 111th Cong. 

(2009) (“To amend the Federal Election Campaign Act of 1971 to provide for 

expenditure limitations and public financing for House of Representatives general 

elections . . . .”). SpeechNow.org was formed to oppose candidates for supporting 

precisely this sort of legislation. Yet if it does not receive a preliminary injunction, 

it will continue to be unable to do so. 

Thus, it is clear that the statute is directly limiting SpeechNow.org and its 

supporters’ First Amendment rights to associate with one another and speak by 

making and receiving contributions in excess of the contribution limits. Indeed, 

the district court acknowledged as much when it found that the contribution limits 

forbid Plaintiffs-Appellants Keating, Crane, and Young, as well as Richard 

Marder, from giving donations to SpeechNow.org in excess of those limits: “None 

of these donations [above the contribution limits] have in fact been made, however, 

because, under longstanding provisions of the Federal Election Campaign Act 

Case: 08-5223 Document: 1202536 Filed: 08/24/2009 Page: 62
48

(“FECA”), 2 U.S.C. §§ 431-55, donors to SpeechNow would be subject to an 

annual contribution limit of $5,000 per person, 2 U.S.C. § 441a(a)(1)(C), and 

biennial aggregate limits [under 2 U.S.C. § 441a(a)(3)].” J.A. 374. Given that 

contribution limits infringe upon the rights to free speech and association, see, e.g.,

Citizens Against Rent Control, 454 U.S. at 299, and—as the FEC itself has 

recognized—create a substantial burden on speech,9

 that finding compelled a 

ruling that SpeechNow.org suffered irreparable harm.10 Indeed, other district 

courts have concluded that independent speech groups are irreparably harmed by 

contribution limits. See, e.g., Herrera, 2007 U.S. Dist. LEXIS 73736, at *15 

(holding that contribution limits caused irreparable harm to independent 

expenditure committees and granting motion for preliminary injunction). 

 

9

 See Davis v. FEC, 128 S. Ct. 2759, 2774 (2008) (noting the government’s 

argument that BCRA section 319(a) “is justified because it ameliorates the 

deleterious effects that result from the tight limits that federal election law places 

on individual campaign contributions and coordinated party expenditures.”). 

10 See, e.g., Chaplaincy of Full Gospel Churches, 454 F.3d at 301; Bl(a)ck Tea 

Soc’y v. City of Boston, 378 F.3d 8, 15 (1st Cir. 2004) (“A burden on protected 

speech always causes some degree of irreparable harm.”); Pac. Frontier v. 

Pleasant Grove City, 414 F.3d 1221, 1236 (10th Cir. 2005) (holding that an 

ordinance licensing door-to-door solicitors constituted irreparable injury); Newsom 

v. Norris, 888 F.2d 371, 378 (6th Cir. 1989) (“The Supreme Court has 

unequivocally admonished that even minimal infringement upon First Amendment 

values constitutes irreparable injury sufficient to justify injunctive relief.”); 

Johnson v. Bergland, 586 F.2d 993, 995 (4th Cir. 1978) (“Violations of first 

amendment rights constitute per se irreparable injury.”). 

Case: 08-5223 Document: 1202536 Filed: 08/24/2009 Page: 63
49

But the district court did not view the application of contribution limits to 

SpeechNow.org as sufficiently irreparable to warrant issuance of an injunction: 

“Plaintiffs cannot show they are so irreparably harmed as to justify setting aside 

[the contribution limits].” J.A. 398. The district court reached this conclusion, 

despite the fact that the contribution limits restrict SpeechNow.org’ speech, 

because it assumed that forcing speakers to abandon their preferred method of 

speaking does not really harm them irreparably—at least not enough to require 

court intervention. J.A. 398. (“Even with these contribution caps in place, the 

individual plaintiffs retain the ability to associate with and contribute to 

SpeechNow—each must simply limit his contribution to $5,000 per year.”). 

This assumption could not be more wrong. The Supreme Court recently, 

and emphatically, reaffirmed—over the FEC’s protestations— the general and 

long-standing principle that the availability of alternative means of communication 

cannot justify restrictions on ways that speakers have chosen communicate their 

views. WRTL II, 551 U.S. at 477 n.9 (rejecting the argument that because WRTL 

was free to form a PAC or to publish newspaper ads instead of television ads or to 

say something other than what it wanted to say that limits on its speech were 

permissible); see also Davis v. FEC, 128 S. Ct. 2759 (2008) (forbidding 

government from forcing self-financing candidate to change the way he funded his 

campaign in order to avoid system of discriminatory contribution limits); Meyer v. 

Case: 08-5223 Document: 1202536 Filed: 08/24/2009 Page: 64
50

Grant, 486 U.S. 414, 424 (1988) (“The First Amendment protects appellees’ right 

not only to advocate their cause but also to select what they believe to be the most 

effective means for so doing.”); MCFL, 479 U.S. at 255 (holding that an 

organization could not be required to speak in a “more burdensome” manner than it 

chose). 

Below, the FEC argued—in direct contravention of this principle—that 

SpeechNow.org and its supporters are not irreparably harmed because, if they 

disassociate, Fred Young, who is willing to donate $110,000 to SpeechNow.org, 

can fund at least some advertisements by himself. Def’s Mem. Opp’n Pls.’ Mot. 

Prelim. Inj. at 34. In other words, the speech of SpeechNow.org and its supporters 

can be limited because they can always forfeit their rights of association and speak 

separately. The district court embraced the flip side of that argument, also made 

by the FEC, that SpeechNow.org’s speech can be limited on the ground that it can 

speak by joining with additional individuals. Like the first argument, this one 

assumes that the government can force speakers to give up their right to 

association, which “necessarily presupposes the freedom to identify the people 

who constitute the association, and to limit the association to those people only.” 

Cal. Democratic Party v. Jones, 530 U.S. 567, 574 (2000) (quoting Democratic 

Party v. Wis. ex rel. La Follette, 450 U.S. 107, 122 (1981)). Individuals who form 

associations have the autonomy—free from government micro-management—to 

Case: 08-5223 Document: 1202536 Filed: 08/24/2009 Page: 65
51

decide not only with whom they associate, but how and when they associate with 

others. See Wis. ex rel. La Follette, 450 U.S. at 123 n.25 (“[T]he stringency, and 

wisdom, of membership requirements is for the association and its members to 

decide—not the courts—so long as those requirements are otherwise 

constitutionally permissible.”); LaRouche v. Fowler, 152 F.3d 974, 980 (D.C. Cir. 

1998) (same); Ripon Soc’y, Inc. v. Nat’l Republican Party, 525 F.2d 567, 585 

(D.C. Cir. 1975) (en banc) (plurality opinion) (“Speeches and assemblies are after 

all not ends in themselves but means to effect change through the political process. 

If that is so, there must be a right not only to form political associations but to 

organize and direct them in the way that will make them most effective.”). If this 

were not the case, WRTL II would have been decided differently: the Court would 

have allowed, rather than rejected, the FEC’s attempt to require Wisconsin Right to 

Life to speak through its PAC and thus raise funds from non-corporate donors 

before it could speak. 

As described more fully below, SpeechNow.org’s plan is to speak first with 

its advertisements, which will, by giving the organization credibility, allow it to 

undertake successfully larger fundraising efforts. J.A. 58-59. The district court’s 

refusal to find that SpeechNow.org suffered irreparable harm, based on the notion 

that it can still speak if it adds additional donors now, when the government 

chooses, allowed the FEC to do precisely what the Supreme Court has clearly held 

Case: 08-5223 Document: 1202536 Filed: 08/24/2009 Page: 66
52

it may not: restrict speech because it can posit the availability of some other means 

of speaking. See supra at 49-50. If the district court’s reasoning held sway 

universally, speakers could never obtain a preliminary injunction when the 

government shuts off their preferred means of speech because available 

alternatives would always preclude a finding of irreparable harm. After all, the 

government could always plausibly argue that some alternative means of speech 

remained available: speech by groups can be limited because individuals can 

speak; speech by individuals can be limited because groups can speak; television 

advertising can be limited because radio advertising is available; radio advertising 

can be limited because print publications are available; print publications can be 

limited because face-to-face conversation is available; books can be limited 

because movies are available, etc. Even though this same argument would always 

fail at the merits stage, see supra at 49-50, the government could always use it to 

defeat a motion for a preliminary injunction. Thus, injured speakers who sued the 

government to protect their rights would have to wait until the conclusion of costly 

litigation, which could last for years, before obtaining relief that would allow them 

to speak in the manner of their choosing. In the meantime, there would be no 

barrier to the government’s illegal suppression of speech. There is no preliminaryinjunction loophole that allows the government to circumvent the First 

Case: 08-5223 Document: 1202536 Filed: 08/24/2009 Page: 67
53

Amendment by acting in this speech-chilling manner, and the district court was 

wrong to attempt to create one in this case. 

Finally, even if the above-described errors are put aside, the district court’s 

holding the SpeechNow.org can avoid irreparable harm by associating with others 

simply ignored David Keating’s testimony that, in order to raise funds successfully 

from additional donors so that Plaintiffs can speak in the manner they have chosen, 

SpeechNow.org needs first to run advertisements to demonstrate to potential 

donors that it is a group worth their support. J.A. 58. The contribution limits 

prevent SpeechNow.org from obtaining the “seed” funding—in the form of 

contributions in excess of those limits—it needs to run those advertisements. J.A. 

58. Without the ability to accept large donations that could fund its initial ads, 

accepting donations under the limits from individuals such as Plaintiffs-Appellants 

Russo and Burkhardt will continue to be pointless because it is virtually impossible 

for SpeechNow.org to broadcast its ads with only small donations. It is no answer 

for the FEC to say that Plaintiffs can instead speak in less expensive and effective 

ways, such as by volunteering for a campaign, emailing friends, or espousing 

views on a website. WRTL II, 551 U.S. at 477 n.9 (2007) (dismissing similar 

arguments). 

Furthermore, accepting donations under the limits right now would be 

counterproductive because it would simply trigger the burdensome registration, 

Case: 08-5223 Document: 1202536 Filed: 08/24/2009 Page: 68
54

administrative, and reporting provisions that apply to PACs. If SpeechNow.org 

accepts donations of over $1,000, it will have to comply with those regulations 

without any assurance that it would ever be able to raise enough funds to run 

advertisements. J.A. 60-62. Thus, for these reasons as well, the contribution limits 

irreparably harm SpeechNow.org and all of its supporters, even those who wish to 

donate less than the contribution limits to join their voices with those who have 

more resources. 

Accordingly, the district court erred on the issue of irreparable harm, and 

this Court should correct that error so that SpeechNow.org and its supporters may 

finally exercise their First Amendment right to speak and associate in the manner 

of their choosing. 

B. A Preliminary Injunction Will Not Substantially Injure the FEC. 

As demonstrated above in Part I, enforcing the individual and aggregate 

contribution limits against a group like SpeechNow.org—which poses no threat of 

corruption or its appearance—violates the First Amendment. The government has 

no interest in being able to enforce a statute in a manner that violates the 

Constitution. ACLU v. Reno, 217 F.3d 162, 181 (3d Cir. 2000) (“[N]either the 

Government nor the public generally can claim an interest in the enforcement of an 

unconstitutional law.”). Accordingly, the granting of a preliminary injunction here 

will not harm the government in any way. 

Case: 08-5223 Document: 1202536 Filed: 08/24/2009 Page: 69
55

The district court disagreed, holding that the FEC has an interest in 

enforcing the contribution limits that outweighed Plaintiffs’ First Amendment 

rights. “The presumption of constitutionality which attached to every Act of 

Congress is not merely a factor to be considered in evaluating success on the 

merits, but an equity to be considered in favor of [the government] in balancing 

hardships.” J.A. 398-99. (quoting Walters v. Nat’l Ass’n of Radiation Survivors, 

468 U.S. 1323, 1324 (1984) (Rehnquist, J., in chambers)). The court’s reliance on 

this statement by former Chief Justice Rehnquist, made while he sat alone as a 

Circuit Judge, is misplaced. The statement concerned a law that limited the 

compensation a person could pay to an attorney or agent who brought a claim for 

monetary benefits on his or her behalf. It did not concern an instance where, as 

here, enforcement of a law would restrict First Amendment rights. When those 

rights are implicated, no presumption of constitutionality exists. United States v. 

Playboy Entm’t Group, 529 U.S. 803, 816-17 (2000) (“When the Government 

restricts speech, the Government bears the burden of proving the constitutionality 

of its actions.”). Indeed, as the Supreme Court has recently made clear, “[w]here 

the First Amendment is implicated, the tie goes to the speaker, not the censor.” 

WRTL II, 551 U.S. at 474; see also MCFL, 479 U.S. at 265 (holding that 

“government must curtail speech only to the degree necessary to meet the 

particular problem at hand . . . .”). In other words, in any conflict between First 

Case: 08-5223 Document: 1202536 Filed: 08/24/2009 Page: 70
56

Amendment rights and the government’s limitation of those rights, courts “must 

give the benefit of any doubt to protecting rather than stifling speech.” WRTL II, 

551 U.S. at 469. 

By giving the harms suffered by SpeechNow.org little, if any, weight and 

presuming that the equities ran in favor of the government, the district court 

committed a legal error that gave the benefit of the doubt to the limitation of First 

Amendment rights. To protect those rights, this Court should reverse that error. 

C. Granting an Injunction Will Further the Public Interest. 

The district court failed to consider whether granting an injunction would 

further the public interest. It is elementary that “it is always in the public interest 

to protect constitutional rights.” Phelps-Roper v. Nixon, 545 F.3d 685, 689 (8th 

Cir. 2008); see also Pac. Frontier v. Pleasant Grove City, 414 F.3d 1221, 1237 

(10th Cir. 2005) (“Vindicating First Amendment freedoms is clearly in the public 

interest.”); Sammartano v. First Judicial Dist. Court, 303 F.3d 959, 974 (9th Cir. 

2002) (“Courts considering requests for preliminary injunctions have consistently 

recognized the significant public interest in upholding First Amendment 

principles.”); People for the Ethical Treatment of Animals v. Gittens, 215 F. Supp. 

2d 120, 134 (D.D.C. 2002) (“[T]he public interest favors a preliminary injunction 

whenever First Amendment rights have been violated.”). 

Case: 08-5223 Document: 1202536 Filed: 08/24/2009 Page: 71
57

Protecting SpeechNow.org’s First Amendment rights furthers the public 

interest because it preserves the free flow of debate in this nation’s marketplace of 

ideas. In protecting that marketplace from assault, the Supreme Court has 

emphasized that, with the creation of the First Amendment, the Founding Fathers 

“eschewed silence coerced by law—the argument of force in its worst form.” New 

York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964) (quoting Whitney v. 

California, 274 U.S. 357, 375-76 (1927) (Brandeis, J., concurring)). Instead, the 

Founders embraced “the free discussion of governmental affairs . . . includ[ing] 

discussions of candidates.” Mills v. Alabama, 384 U.S. 214, 218 (1966). This free 

discussion is indispensable to the maintenance of our democracy. “[S]peech 

concerning public affairs is more than self-expression; it is the essence of selfgovernment.” Garrison v. Louisiana, 379 U.S. 64, 74-75 (1964). SpeechNow.org 

and its supporters wish to participate in the process of self-government by urging 

voters to support candidates who protect rights to free speech and association and 

to oppose those who do not. 

The First Amendment reflects our “profound national commitment to the 

principle that debate on public issues should be uninhibited, robust, and wideopen.” N.Y. Times Co., 376 U.S. at 270. SpeechNow.org and its supporters wish 

to ensure that debate on all topics—including the First Amendment itself—remains 

Case: 08-5223 Document: 1202536 Filed: 08/24/2009 Page: 72
58

uninhibited, robust, and wide-open by bringing to light abuses of First Amendment 

rights by particular politicians and urging Americans to vote against them. 

In short, SpeechNow.org’s activities are at the core of the First Amendment. 

Accordingly, enjoining the contribution limits that apply to SpeechNow.org and its 

supporters and thus allowing them to exercise their rights to free speech and 

association is entirely consistent with the public interest.11

CONCLUSION 

For the foregoing reasons, the district court’s decision denying 

SpeechNow.org’s motion for preliminary injunction should be reversed. 

 

11 If this Court reverses the district court’s decision and holds that SpeechNow.org 

is entitled to a preliminary injunction, SpeechNow.org respectfully requests (as it 

did below) that this Court waive the bond requirement under Federal Rule of Civil 

Procedure 65(c). That rule provides that no preliminary injunction shall issue 

without the giving of security by the applicant in an amount determined by the 

court. However, “[i]t is within the Court’s discretion to waive Rule 65(c)’s 

security requirement where it finds such a waiver to be appropriate in the 

circumstances.” Cobell v. Norton, 225 F.R.D. 41, 50 n.4 (D.D.C. 2004). In noncommercial cases, courts often waive the bond requirement where the likelihood of 

harm to the non-moving party is slight and the bond requirements would impose a 

significant burden on the moving party. See, e.g., Temple Univ. v. White, 941 F.2d 

201, 219 (3d Cir. 1991); Herrera, 2007 U.S. Dist. LEXIS 73736, at *17-*18. 

Cases raising constitutional issues are particularly appropriate for a waiver of the 

bond requirement. See Ogden v. Marendt, 264 F. Supp. 2d 785, 795 (S.D. Ind. 

2003); Smith v. Bd. of Election Comm’rs, 591 F. Supp. 70, 71 (N.D. Ill. 1984). For 

these reasons, it is appropriate that the bond requirement be waived. 

Case: 08-5223 Document: 1202536 Filed: 08/24/2009 Page: 73
59

Respectfully submitted, 

/s/ Steven M. Simpson 

Steven M. Simpson (DC Bar No. 462553) 

William H. Mellor (DC Bar No. 462072) 

Robert Gall (DC Bar No. 482476) 

Robert P. Frommer (DC Bar No. 497308) 

Paul M. Sherman (DC Bar No. 978663) 

INSTITUTE FOR JUSTICE

901 N. Glebe Road, Suite 900 

Arlington, VA 22203 

Tel: (703) 682-9320 

Email: wmellor@ij.org, ssimpson@ij.org, 

bgall@ij.org, rfrommer@ij.org, psherman@ij.org 

Stephen M. Hoersting 

Bradley A. Smith 

CENTER FOR COMPETITIVE POLITICS

124 W. Street South, Suite 201 

Alexandria, VA 22314 

Tel: (703) 894-6800 

Email: shoersting@campaignfreedom.org, 

BSmith@law.capital.edu 

Attorneys for Plaintiffs-Appellants 

 

Case: 08-5223 Document: 1202536 Filed: 08/24/2009 Page: 74
CERTIFICATE OF COMPLIANCE 

This brief complies with the type-volume limitation of Federal Rule of 

Appellate Procedure 32(a)(7)(B) because this brief contains 13,536 words, 

excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). 

This brief complies with the typeface requirements of Federal Rule of 

Appellate Procedure 32(a)(5) and the type-style requirements of Federal Rule of 

Appellate Procedure 32(a)(6) because this brief has been prepared in a 

proportionally spaced typeface using Microsoft Word in 14-point Times New 

Roman font. 

 /s/ Steven M. Simpson 

 Steven M. Simpson 

 Counsel for Plaintiffs-Appellants 

Case: 08-5223 Document: 1202536 Filed: 08/24/2009 Page: 75
CERTIFICATE OF SERVICE 

 I hereby certify that on this 24th day of August, 2009, I caused this Brief of 

Appellants to be filed electronically with the Clerk of the Court using the CM/ECF 

System. 

I further certify that on this 24th day of August, 2009, I filed with the 

Clerk’s Office of the United States Court of Appeals for the District of Columbia 

Circuit, via hand delivery, the required number of copies of this Brief of 

Appellants and Joint Appenidx, and further certify that I served, via UPS Next Day 

Air, the required number of said Brief to the following: 

Robert W. Bonham, III 

David B. Kolker 

Steve N. Hajjar 

Kevin Deeley 

FEDERAL ELECTION COMMISSION 

999 East Street, N.W. 

Washington, DC 20463 

Counsel for Appellee 

/s/ Steven M. Simpson 

 Steven M. Simpson 

Counsel for Plaintiffs-Appellants 

Case: 08-5223 Document: 1202536 Filed: 08/24/2009 Page: 76