UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF VIRGINIA 

RICHMOND DIVISION 

THE REAL TRUTH ABOUT OBAMA, 

INC., 

 Plaintiff, 

 v. 

FEDERAL ELECTION COMMISSION 

and UNITED STATES DEPARTMENT 

OF JUSTICE, 

 Defendants. 

) 

) 

) 

) 

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

) 

) 

) OPPOSITION TO 

) PRELIMINARY INJUNCTION 

) 

) 

) 

FEDERAL ELECTION COMMISSION’S MEMORANDUM IN OPPOSITION TO 

PLAINITFF’S MOTION FOR PRELIMINARY INJUNCTION 

Audra Hale-Maddox, Attorney (VA Bar No. 46929) 

Thomasenia P. Duncan,* General Counsel 

David Kolker,* Associate General Counsel 

Kevin Deeley,* Assistant General Counsel 

Holly Baker,* Attorney 

 

Vivien Clair,* Attorney 

Seth Nesin,* Attorney 

Adav Noti,* Attorney 

Claire Rajan,* Attorney 

COUNSEL FOR DEFENDANT 

August 14, 2008 FEDERAL ELECTION COMMISSION 

* pro hac vice application pending
TABLE OF CONTENTS 

Page 

I. BACKGROUND ................................................................................................................1

A. Factual Background...............................................................................................1

B. Legal Background..................................................................................................2

1. Contributions And Expenditures.............................................................2 

2. Express Advocacy ......................................................................................3 

3. Political Committee Status........................................................................4

4. Contributions In Response To Solicitations............................................4

5. Corporation-Funded Electioneering Communications..........................5

II. RTAO HAS NOT MET ITS BURDEN FOR A PRELIMINARY INJUNCTION......5

A. RTAO Has Not Demonstrated That The Court Has Jurisdiction.....................5

B. A Preliminary Injunction Is An Extraordinary Remedy That Requires 

The Plaintiff To Meet A Heavy Burden...............................................................7

C. Plaintiff Fails To Demonstrate Irreparable Harm .............................................8 

D. The Balance Of Harms Weighs In Favor Of The Commission .......................10

E. Even If Plaintiff’s Challenges Are Justiciable, The Commission Is Likely 

To Succeed On The Merits..................................................................................11

1. Plaintiff’s Burden For Its Facial Challenges.........................................11

2. RTAO Has Not Met Its Burden For A Preliminary Injunction 

Against The Definition Of Express Advocacy In 

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

a. RTAO’s Challenge To 11 C.F.R. § 100.22(b) Is 

Not Justiciable ..............................................................................12

b. RTAO Has Failed To Show That It Is Likely To Succeed 

In Establishing That 11 C.F.R. § 100.22(b) Is Facially 

Unconstitutional...........................................................................13

3. RTAO Has Not Met Its Burden For A Preliminary Injunction 

Against The Solicitation Regulation.......................................................17
ii

a. RTAO’s Challenge To 11 C.F.R. § 100.57 Is 

Not Justiciable ..............................................................................18

b. RTAO Has Failed To Show That It Is Likely To Succeed 

In Establishing That The Solicitation Regulation Is 

Unconstitutional On Its Face ......................................................18

4. RTAO Has Not Met Its Burden For A Preliminary 

Injunction Against The Commission’s Analysis Of Political 

Committee Status.....................................................................................23

a. The Commission’s Enforcement Policy Is Not Reviewable 

Under The APA............................................................................23

b. The Commission’s Political Committee Analysis Is Lawful ....24

5. RTAO Has Not Met Its Burden For A Preliminary Injunction 

Against 11 C.F.R. § 114.15 ......................................................................27

a. RTAO’s Challenge To 11 C.F.R. § 114.15 Is 

Not Justiciable ..............................................................................27

b. RTAO Has Failed To Show That It Is Likely To Succeed 

In Establishing That 11 C.F.R. § 114.15 Is Unconstitutional 

On Its Face....................................................................................28

III. CONCLUSION ................................................................................................................30
iii

TABLE OF AUTHORITIES 

Cases Page 

Abbott Labs., Inc. v. Gardner, 387 U.S. 136 (1967)........................................................................6

ACLU of Nevada v. Heller, 378 F.3d 979 (9th Cir. 2004).............................................................22 

Akins v. FEC, 101 F.3d 731 (D.C. Cir. 1996)................................................................................25 

Anderson v. Spear, 356 F.3d 651 (6th Cir. 2004)..........................................................................22 

Arizonans for Official English v. Arizona, 520 U.S. 43 (1997).......................................................6 

Bennett v. Spear, 520 U.S. 154 (1997) ..........................................................................................23 

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

550 F.2d 189 (4th Cir. 1977) ...............................................................................................7 

Broadrick v. Oklahoma, 413 U.S. 601 (1973) ...............................................................................11 

Brock v. Cathedral Bluffs Shale Oil Co., 796 F.2d 533 (D.C. Cir. 1986) .....................................23 

Brown v. Socialist Workers ’74 Campaign Comm., 459 U.S. 87 (1982).........................................9 

Bryant v. Cheney, 924 F.2d 525 (4th Cir. 1991)..............................................................................6 

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

Cal. Med. Ass’n v. FEC, 453 U.S. 182 (1981)...............................................................................19 

Ctr. for Individual Freedom v. Carmouche, 449 U.S. 655 (5th Cir. 2006) ...................................22 

Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290 (D.C. Cir. 2006)......................8, 9 

Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984)............................19 

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

919 F.2d 148 (D.C. Cir. 1990).............................................................................................8 

Cole v. Richardson, 405 U.S. 676 (1972)......................................................................................22 

Cramp v. Bd. of Pub. Instr. of Orange County, Fla., 368 U.S. 278 (1961)...................................22 

Dan River, Inc. v. Icahn, 701 F.2d 278 (4th Cir. 1983)...................................................................8 

Direx Israel, Ltd. v. Breakthrough Med. Corp., 952 F.2d 802 (4th Cir. 1991) .........................7, 10 

Elrod v. Burns, 427 U.S. 347 (1976) ...............................................................................................8 
iv

EMILY’s List v. FEC, 362 F. Supp. 2d 43 (D.D.C.) ......................................................................20 

EMILY’s List v. FEC, Civ. No. 05-0049, 2008 WL 2938558 (D.D.C. July 31, 2008)..................18 

FEC v. Christian Action Network, Inc., 100 F.3d 1049 (4th Cir. 1997)..................................14, 15 

FEC v. Furgatch, 807 F.2d 857 (9th Cir. 1987) ............................................................................15 

FEC v. GOPAC, Inc., 917 F. Supp. 851 (D.D.C. 1996) ................................................................25 

FEC v. Malenick, 310 F. Supp. 2d 230 (D.D.C. 2004)..................................................................25 

FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. 238 (1986) ........................................18, 24 

FEC v. Nat’l Conservative Political Action Comm., 470 U.S. 480 (1985) .....................................8 

FEC v. Survival Educ. Fund, Inc., 65F.3d 285 (2d Cir. 1995) ......................................................20 

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

Florida v. Jimeno, 500 U.S. 248 (1991) ........................................................................................15 

FTC v. Standard Oil Co. of Cal., 449 U.S. 232 (1980) .................................................................26 

Golden v. Zwickler, 394 U.S. 103 (1969) ........................................................................................6 

Grayned v. City of Rockford, 408 U.S. 104 (1972) .......................................................................11 

Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982)....................................11 

In re Premier Auto. Servs., Inc., 492 F.3d 274 (4th Cir. 2007) .......................................................7 

Lewis v. Cont’l Bank Corp., 494 U.S. 472 (1990)...........................................................................7 

Longshoremen’s Union v. Boyd, 347 U.S. 222 (1954) ..................................................................13 

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

Nat’l Ass’n of Mfrs. v. Taylor, 549 F. Supp. 2d 68 (D.D.C. 2008)..................................................9 

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

New York v. Ferber, 458 U.S. 747 (1982) .....................................................................................11 

N.C. Right to Life, Inc. v. Bartlett, 168 F.3d 705 (4th Cir. 1999)............................................21, 22 

N.C. Right to Life, Inc. v. Leake, 525 F.3d 274 (4th Cir. 2008)...................................16, 17, 21, 29 

Perot v. FEC, 97 F.2d 553 (D.C. Cir. 1996)..................................................................................26 
v

Peterson v. Nat’l Telecomm. & Info. Admin., 478 F.3d 626 (4th Cir. 2007).................................13 

Renne v. Geary, 501 U.S. 312 (1991)......................................................................6, 13, 18, 23, 28 

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

Scotts Co. v. United Indus. Corp., 315 F.3d 264 (4th Cir. 2002) ................................................7, 8 

Shays v. FEC, 511 F. Supp. 2d 19 (D.D.C. 2007) ...................................................................24, 25 

Smith v. Frye, 488 F.3d 263 (4th Cir. 2007)....................................................................................8 

Thomas v. Union Carbide Agricultural Products Co., 473 U.S. 568 (1985) ..................................7 

Tom Doherty Assocs., Inc. v. Saban Entm’t, Inc., 60 F.3d 27 (2d Cir. 1987).................................7 

United States v. Salerno, 481 U.S. 739 (1987) ..............................................................................11 

U.S. Dep’t of Labor v. Wolf Run Mining Co., 452 F.3d 275 (4th Cir. 2006)...................................7 

Univ. of Tex. v. Camenisch, 451 U.S. 390 (1981)............................................................................7 

Virginia v. Hicks, 539 U.S. 113 (2003)..........................................................................................11 

Va. Soc’y for Human Life, Inc. v. FEC, 263 F.3d 379 (4th Cir. 2001)..........................7, 14, 15, 16 

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

166 P.3d 1174 (Wash. 2007)........................................................................................20, 21 

Walters v. Nat’l Ass’n of Radiation Survivors, 468 U.S. 1323 (1984) ..........................................10 

Wyatt v. Cole, 504 U.S. 158 (1992) ...............................................................................................15 

Statutes and Regulations 

Bipartisan Campaign Reform Act of 2002 (“BCRA”), Pub. L. No. 107-115, 116 Stat. 81 ..........14 

Federal Election Campaign Act of 1971, as amended, 2 U.S.C. §§ 431-55....................................1 

Federal Election Campaign Act Amendments of 1976, Pub. L. No. 94-283, 90 Stat. 475 .............3 

2 U.S.C. § 431(4) ...........................................................................................................................23 

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

2 U.S.C. § 431(8) .......................................................................................................................6, 19 

2 U.S.C. § 431(8)(A)(i)................................................................................................................2, 4 

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

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

2 U.S.C. § 431(20)(A)(iii)..............................................................................................................21 

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

2 U.S.C. § 434..................................................................................................................................4 

2 U.S.C. § 434(f)(3)(A)(i)............................................................................................................2, 5 

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

2 U.S.C. § 437d(a)(7).......................................................................................................................1 

2 U.S.C. § 437d(a)(8).......................................................................................................................1 

2 U.S.C. § 437f ................................................................................................................................1 

2 U.S.C. § 437f(a)(1) .......................................................................................................................6 

2 U.S.C. § 437g................................................................................................................................1 

2 U.S.C. § 437g(a)(2).....................................................................................................................26 

2 U.S.C. § 441a(a)(1)(C)..............................................................................................................4, 9 

2 U.S.C. § 441b................................................................................................................................6 

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

2 U.S.C. § 441b(b)(2) ......................................................................................................................5 

5 U.S.C. § 704................................................................................................................................23 

11 C.F.R. § 100.22...........................................................................................................................3 

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

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

11 C.F.R. § 100.22(b)(1)................................................................................................................16 

11 C.F.R. § 100.57.........................................................................................................6, 18, 19, 20 

11 C.F.R. § 100.57(a).................................................................................................................5, 17 

11 C.F.R. § 114.12...........................................................................................................................8 

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

11 C.F.R. § 114.15(a)...............................................................................................................27, 28 

11 C.F.R. § 114.15(b) ....................................................................................................................27 

11 C.F.R. § 114.15(c)...............................................................................................................28, 29 

11 C.F.R. § 114.15(c)(2)................................................................................................................29 

11 C.F.R. § 114.15(c)(3)................................................................................................................27 

Miscellaneous 

Express Advocacy; Independent Expenditures; Corporate and Labor Organization Expenditures, 

60 Fed. Reg. 35,292 (July 6, 1995)....................................................................................15 

Political Committee Status, 69 Fed. Reg. 68,056 (Nov. 23, 2004)............................................5, 18 

Political Committee Status; Supplemental Explanation and Justification, 

72 Fed. Reg. 5595 (Feb. 7, 2007) ............................................................................ 5, 23-26 

Electioneering Communications, 72 Fed. Reg. 72,899 (Dec. 26, 2007) .................................27, 28 

In the Matter of Swiftboat Veterans and POWs for Truth, MUR 5511, 5525, Conciliation 

Agreement (Dec. 4, 2006).................................................................................................17 

In the Matter of The Media Fund, MUR 5440, Conciliation Agreement (Oct. 29, 2007).............17 
1

 One week after it incorporated, plaintiff filed this suit asking for extraordinary injunctive 

relief that would alter the status quo and prevent the Federal Election Commission, near the peak 

of the election cycle, from enforcing longstanding regulations and enforcement policy. Plaintiff 

does not allege that it has yet done anything that implicates federal election law or that the 

Commission has taken any action against it. Rather, without engaging in any fundraising or 

electoral speech, or any other relevant concrete action, plaintiff has attempted to invoke this 

Court’s jurisdiction because of its unfounded fear of prosecution if it should carry out its alleged 

intentions. In fact, the particular advertisement and fundraising solicitation plaintiff intends to 

pursue will not be regulated as plaintiff fears. Plaintiff thus fails to present a justiciable case or 

controversy. In any event, the provisions plaintiff challenges are all constitutional. The Court 

should deny plaintiff’s request for a preliminary injunction. 

I. BACKGROUND 

 A. Factual Background 

 The Commission is the independent agency of the United States government with 

exclusive jurisdiction to administer, interpret, and civilly enforce the Federal Election Campaign 

Act of 1971, as amended (“FECA” or “Act”), 2 U.S.C. §§ 431-55. The Commission is 

empowered to “formulate policy” with respect to the Act, 2 U.S.C. § 437c(b)(1); “to make, 

amend, and repeal such rules . . . as are necessary to carry out the provisions of [the] Act,” 

2 U.S.C. § 437d(a)(8); to issue advisory opinions construing the Act, 2 U.S.C. §§ 437d(a)(7), 

437f; and to civilly enforce against violations of the Act. 2 U.S.C. § 437g. 

 Plaintiff The Real Truth About Obama, Inc. (“RTAO”) is a nonprofit Virginia 

corporation. (Compl. ¶ 5.) RTAO was incorporated on July 24, 2008. (See FEC Exh. 1.) On 

July 29, two days before RTAO filed this suit, RTAO filed a notice of section 527 status with the 

Internal Revenue Service. (FEC Exh. 2 (RTAO IRS Form 8871, Notice of Section 527 Status).) 
2

RTAO alleges that it intends to produce an audio advertisement entitled Change, post the ad on 

its website, and air it on the Rush Limbaugh and Sean Hannity radio programs. (Compl. 

¶¶ 16-17.) The audio ad purports to provide “the real truth about Democrat Barack Obama’s 

position on abortion,” using an “Obama-like voice.” (Id. ¶ 16.) Near the end, a woman’s voice 

will state: “Now you know the real truth about Obama’s position on abortion. Is this the change 

that you can believe in?” (Id.) RTAO alleges that it is creating a website at 

www.therealtruthaboutobama.com that will contain “accurate statements about [Obama’s] public 

policy positions” (id. ¶ 15), but the website is not yet active. RTAO intends to broadcast Change

on the radio “in heartland states” during pre-election periods that meet the timing element of the 

FECA’s “electioneering communication” definition. (Id. ¶ 17; see 2 U.S.C. § 434(f)(3)(A)(i).) 

The complaint does not allege that RTAO has produced the ad or taken any concrete steps 

toward its creation or distribution. 

 RTAO alleges that it intends to raise more than $1,000 and to spend more than $1,000 to 

broadcast Change, but it does not allege that it has raised or spent any money. (Compl. ¶ 20.) 

Nor does it allege that it has identified any potential donors or specific donations. RTAO has 

written one fundraising communication that it alleges it intends to use to raise money (id. ¶ 19), 

but it does not allege that it has ever sent such a letter to any potential contributor. 

 B. Legal Background 

 1. Contributions And Expenditures 

 Under the FECA, “contribution” is defined to include giving anything of value “for the 

purpose of influencing any election for Federal office.” 2 U.S.C. § 431(8)(A)(i). Similarly, 

“expenditure” is defined to include any payment of money made “for the purpose of influencing 

any election for Federal office.” 2 U.S.C. § 431(9)(A)(i). FECA generally prohibits 

corporations and labor unions from making any contribution or expenditure. 2 U.S.C. § 441b(a). 
3

 2. Express Advocacy 

 In Buckley v. Valeo, 424 U.S. 1, 41 (1976), the Supreme Court reviewed FECA’s thenprohibition on expenditures by any person of more than $1,000 “relative to” a federal candidate. 

The Court found the provision unconstitutionally vague and so “construed [it] to apply only to 

expenditures for communications that in express terms advocate the election or defeat of a 

clearly identified candidate for federal office.” Id. at 44. Congress then defined “independent 

expenditure” to mean an independent communication “expressly advocating the election or 

defeat of a clearly identified candidate.” See Federal Election Campaign Act Amendments of 

1976, Pub. L. No. 94-283, § 102(g)(3), 90 Stat. 475, 479 (1976) (codified at 2 U.S.C. § 431(17)). 

 The Commission later promulgated a regulatory definition of the term “expressly 

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

communications that use phrases or campaign slogans “which in context can have no other 

reasonable meaning than to urge the election or defeat” of a candidate. 11 C.F.R. § 100.22(a). 

Part (b) defines express advocacy as a communication that has an unambiguous “electoral 

portion” and that cannot reasonably be construed as anything other than an encouragement to 

elect or defeat a candidate. 11 C.F.R. § 100.22(b). Citing Buckley, a number of courts had held 

that a limited, “magic words” interpretation of “expressly advocating” was the outer 

constitutional boundary of Congress’s power to regulate campaign expenditures. See infra Part 

II.E.2.b. In McConnell v. FEC, 540 U.S. 93, 191-92 (2003), however, the Supreme Court held 

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

original statutory text, not because the government’s power was in all cases circumscribed to 

regulating only a limited number of “magic words” of advocacy. Congress may regulate not 

only express advocacy, the Court held, but also the “functional equivalent of express advocacy,” 
4

id. at 206; see also FEC v. Wisconsin Right to Life, Inc. (“WRTL”), 127 S. Ct. 2652, 2667 (2007) 

(same). 

 3. Political Committee Status 

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

receives over $1,000 in contributions or makes over $1,000 in expenditures in a calendar year is 

a “political committee.” 2 U.S.C. § 431(4)(A). Political committees must register with the 

Commission and file periodic reports for disclosure to the public of all their receipts and 

disbursements, with limited exceptions for most transactions below a $200 threshold. See

2 U.S.C. §§ 433, 434. No person may contribute more than $5,000 per calendar year to any one 

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

 In Buckley, the Supreme Court held that defining political committee status “only in 

terms of amount of annual ‘contributions’ and ‘expenditures’” might result in overbroad 

application of FECA’s political committee requirements by reaching “groups engaged purely in 

issue discussion.” 424 U.S. at 79. The Court therefore concluded that the Act’s political 

committee provisions “need only encompass organizations that are under the control of a 

candidate or the major purpose of which is the nomination or election of a candidate.” Id. Under 

the statute as thus limited, a non-candidate-controlled entity must register as a political 

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

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

its “major purpose” is the nomination or election of federal candidates. 

 4. Contributions In Response To Solicitations 

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

of influencing any election” and thus constitutes a “contribution” for purposes of the $1,000 

political committee threshold. 2 U.S.C. § 431(8)(A)(i). In 2004, the Commission promulgated a 
5

regulation specifying that a “deposit of money . . . made by any person in response to any 

communication is a contribution . . . if the communication indicates that any portion of the funds 

received will be used to support or oppose the election of a clearly identified Federal candidate.” 

11 C.F.R. § 100.57(a); 69 Fed. Reg. 68,056, 68,057 (Nov. 23, 2004). The regulation was part of 

the Commission’s effort to “significantly curb[] the raising and spending of non-Federal funds in 

connection with Federal elections.” 72 Fed. Reg. 5595, 5602 (Feb. 7, 2007). 

 5. Corporation-Funded Electioneering Communications 

 FECA prohibits corporations and unions from making any “direct or indirect payment . . . 

for any applicable electioneering communication,” which is defined in the context of a 

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

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

election or thirty days before a primary or convention. 2 U.S.C. §§ 441b(b)(2), 434(f)(3)(A)(i). 

 The Supreme Court has upheld the constitutionality of the financing restriction for nonexpress advocacy “to the extent that the issue ads ... are the functional equivalent of express 

advocacy.” McConnell, 540 U.S. at 189-94, 203-08; WRTL, 127 S. Ct. at 2667. Chief Justice 

Roberts’ controlling opinion in WRTL defined “the functional equivalent of express advocacy” as 

a communication that is “susceptible of no reasonable interpretation other than as an appeal to 

vote for or against a specific candidate.” Id. The opinion then listed indicia of genuine issue ads 

and express advocacy and analyzed the ads at issue. Id.; see infra p. 29. Shortly after WRTL was 

decided, the Commission promulgated a regulation to codify the Court’s controlling opinion, 

using, essentially verbatim, the same criteria that the Chief Justice used. See 11 C.F.R. § 114.15. 

II. RTAO HAS NOT MET ITS BURDEN FOR A PRELIMINARY INJUNCTION 

 A. RTAO Has Not Demonstrated That The Court Has Jurisdiction 

 Federal courts must presume that they “lack jurisdiction unless the contrary appears 
6

affirmatively from the record.” Renne v. Geary, 501 U.S. 312, 316 (1991) (citations and internal 

quotation marks omitted). “In ... constitutional litigation most prominently, courts in the United 

States characteristically pause to ask: Is this conflict really necessary?” Arizonans for Official 

English v. Arizona, 520 U.S. 43, 75 (1997) (footnote omitted). Here, the answer is no: As we 

discuss infra, based on plaintiff’s few factual allegations, RTAO’s proposed radio ad does not 

contain express advocacy under 11 C.F.R. § 100.22(b) and is exempt under § 114.15 from the 

financing restrictions of 2 U.S.C. § 441b. Moreover, under 11 C.F.R. § 100.57, any donations 

RTAO raises from its proposed fundraising letter will not be “contributions” under 2 U.S.C. 

§ 431(8). Thus, because RTAO’s proposed activities are not restricted by the regulations it 

challenges, plaintiff has not demonstrated a live grievance or a ripe regulatory challenge, and 

there is no “case or controversy” within the meaning of Article III.1

 

 “Doctrines like standing, mootness, and ripeness are simply subsets of Article III’s 

command that the courts resolve disputes, rather then emit random advice.” Bryant v. Cheney, 

924 F.2d 525, 529 (4th Cir. 1991). Here, where the dispute between the parties concerns 

injunctive relief, this principle is particularly apt because the “courts should be especially 

mindful of this limited role [under Article III] when they are asked to award prospective 

equitable relief instead of damages for a concrete past harm.” Id. 

[T]he Article III question is ... whether [the plaintiff] has a stake in that relief. Even 

in order to pursue the declaratory and injunctive claims, in other words, [the 

plaintiff] must establish that it has a “specific live grievance” against the application 

of the statutes ..., Golden v. Zwickler, 394 U.S. 103, 110 (1969), and not just an 

“‘abstract disagreemen[t]’” over the constitutionality of such application, Thomas v. 

Union Carbide Agricultural Products Co., 473 U.S. 568, 580 (1985) (quoting 

Abbott Laboratories, Inc. v. Gardner, 387 U.S. 136, 148 (1967)). 

 

1

 Had RTAO requested an advisory opinion instead of rushing into federal court, it might 

have avoided this lawsuit. See McConnell, 540 U.S. at 170 n.64 (“[S]hould plaintiffs feel that 

they need further guidance, they are able to seek advisory opinions for clarification, see 2 U.S.C. 

§ 437f(a)(1) . . . .”). 
7

Lewis v. Cont’l Bank Corp., 494 U.S. 472, 479 (1990).2

 

B. A Preliminary Injunction Is An Extraordinary Remedy That 

Requires The Plaintiff To Meet A Heavy Burden 

 A preliminary injunction is an “extraordinary” remed[y] “involving the exercise of very 

far-reaching power to be granted only sparingly and in limited circumstances.” In re Premier 

Auto. Servs., Inc., 492 F.3d 274, 284 n.2 (4th Cir. 2007). The purpose of a preliminary 

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

be held.” Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981). When the movant seeks to alter 

rather than maintain the status quo, courts generally exercise a higher degree of scrutiny. Tom 

Doherty Assocs., Inc. v. Saban Entm’t, Inc., 60 F.3d 27, 33-34 (2d Cir. 1995). 

 In the Fourth Circuit, courts consider the four Blackwelder factors: “(1) the likelihood of 

irreparable harm to the plaintiff if the preliminary injunction is denied; (2) the likelihood of harm 

to the defendant if the requested relief is granted; (3) the likelihood that the plaintiff will succeed 

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

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

Inc., 550 F.2d 189, 193-94 (4th Cir. 1977)). RTAO bears the burden of proving that each factor 

supports the granting of such relief. See Direx Israel, Ltd. v. Breakthrough Med. Corp., 952 F.2d 

802, 812 (4th Cir. 1991). In applying the factors, “the court must first determine whether the 

plaintiff has made a strong showing of irreparable harm if the injunction is denied; if such a 

showing is made, the court must then balance the likelihood of harm to the plaintiff against the 

likelihood of harm to the defendant.” Scotts Co. v. United Indus. Corp., 315 F.3d 264, 271 (4th 

 

2

 The decision in Virginia Society for Human Life, Inc. v. FEC, 263 F.3d 379 (4th Cir. 

2001) (“VSHL”), does not establish that this Court has jurisdiction. In VSHL, the Commission 

had conceded the unenforceability of its regulation because of a prior adverse decision that it 

intended to continue to challenge on further appellate review. Here, the Commission does not 

contend that its regulations, even if upheld and enforced according to the Commission’s own 

interpretation, would regulate the activity that RTAO describes in its complaint. 
8

Cir. 2002) (citations omitted). 

 C. Plaintiff Fails To Demonstrate Irreparable Harm 

 RTAO fails to meet its burden of demonstrating that it will suffer irreparable harm 

without the requested temporary relief. RTAO’s mere allegation of harm under the First 

Amendment is insufficient to constitute irreparable harm for entry of a preliminary injunction. 

See Smith v. Frye, 488 F.3d 263, 271 (4th Cir. 2007) (allegation does not “necessarily, by itself, 

state a First Amendment claim under Elrod [v. Burns, 427 U.S. 347 (1976) (plurality)]”).3

 

 RTAO devotes one paragraph (Br. 27) to the issue of harm and provides only conclusory 

allegations of chilled speech. It thus fails to make even a rudimentary showing of irreparable 

harm, let alone the “clear” or “strong” showing required in this Circuit. See Scotts, 315 F.3d 

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

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

Full Gospel Churches v. England, 454 F.3d 290, 301 (D.C. Cir. 2006), does not apply here, 

because the Commission’s regulations do not directly, or even indirectly, limit plaintiff’s speech. 

Any decrease in its speech is self-imposed. 

 Rather than demonstrating irreparable harm, RTAO presents speculative scenarios of the 

“if-then” variety. (See Compl. ¶¶ 21-25.) However, even if RTAO’s activities were regulated by 

the provisions it challenges and those provisions required plaintiff to abide by the rules for 

political committees, it would not suffer irreparable harm. As a political committee, RTAO 

could pay for unlimited independent campaign advocacy, including express advocacy independent expenditures and electioneering communications. See FEC v. Nat’l Conservative Political 

Action Comm., 470 U.S. 480 (1985); 11 C.F.R. § 114.12 (treating an incorporated political 

 

3

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

Columbia, 919 F.2d 148, 149-50 (D.C. Cir. 1990) (mere allegation of any First Amendment 

burden does not constitute irreparable injury; Elrod v. Burns applicable only when “First 

Amendment rights were totally denied by the disputed Government action”). 
9

committee as a political committee rather than a corporation). It has not alleged that its 

fundraising would be harmed, let alone irreparably harmed, by abiding by the $5,000 limit on 

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

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

any one person, or what concrete harm it would suffer by abiding by the $5,000 limit. 

 RTAO has also failed to allege any irreparable harm from the reporting requirements for 

political committees. Proof of such harm would require evidence of burdensome reprisals 

against its members, but RTAO has not alleged any such harm. Serious harm of this kind has 

been demonstrated only in cases involving organizations, such as the NAACP and the Socialist 

Workers Party, whose members faced actual, documented danger at the relevant time. See

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

employment, threat of physical coercion, and other manifestations of public hostility”) (citation 

omitted); McConnell, 540 U.S. at 198-99 (noting that Brown v. Socialist Workers ’74 Campaign 

Comm., 459 U.S. 87 (1982), found “reasonable probability” of “threats, harassment, and 

reprisals”); see also Nat’l Ass’n of Mfrs. v. Taylor, 549 F. Supp. 2d 68, 75-76 (D.D.C. 2008) 

(trade association suffers no irreparable harm in disclosing membership list under lobbying 

disclosure provisions). Finally, RTAO also claims that it would suffer certain administrative 

burdens as a political committee, but these do not constitute irreparable harm. “Mere injuries, 

however substantial, in terms of money, time and energy necessarily expended in the absence of 

a stay are not enough. The possibility that adequate compensatory or other corrective relief will 

be available at a later date, in the ordinary course of litigation weighs heavily against a claim of 

irreparable harm.” Chaplaincy, 454 F.3d at 297-98. 

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

harm,” Sampson v. Murray, 415 U.S. 61, 88 (1974) (citation omitted), RTAO’s failure on this 
10

point alone suffices to deny RTAO’s requested relief. 

D. The Balance Of Harms Weighs In Favor Of The Commission

 In contrast, enjoining the Commission from enforcing its regulations would substantially 

injure the Commission and harm the public, whose interests are essentially the same as those of 

the Commission.4

 “[A]ny time a State is enjoined by a court from effectuating statutes enacted 

by representatives of its people, it suffers . . . injury.” New Motor Vehicle Bd. of Cal. v. Orrin W. 

Fox Co., 434 U.S. 1345, 1351 (1977) (Rehnquist, J., in chambers). A “presumption of 

constitutionality [] attaches to every Act of Congress,” and that presumption is “an equity to be 

considered in favor of . . . [the government] in balancing hardships.” Walters v. Nat’l Ass’n of 

Radiation Survivors, 468 U.S. 1323, 1324 (1984) (Rehnquist, J., in chambers). 

 The imminent harm to the public if the Commission is not permitted to enforce its 

regulations far outweighs RTAO’s self-imposed censorship and speculative fear. In these key 

months leading up to the national election, a temporary lifting of the challenged regulations 

could undermine the public’s confidence in the federal campaign financing system. The 

regulations and policy at issue implement longstanding limits on corporate influence in federal 

elections and ensure that political committees, whose major purpose is campaign activity, abide 

by certain contribution limits and disclose their receipts and disbursements to the public. The 

applicable limits and disclosure requirements serve compelling government interests in 

preventing corruption, educating the public, and facilitating the Commission’s enforcement of 

the law. Thus, enjoining application of the challenged provisions could confuse political actors, 

 

4

 The Court should reject RTAO’s request (Br. 7) that the Court allow it to “make a more 

modest showing as to concerns about harm to the FEC or others and about promoting the public 

interest” since, as it claims, its harm is so substantial and its success on the merits so likely. 

RTAO inverts the applicable standard. Until a court balances the harms to the parties, it cannot 

know how strong or substantial the plaintiff’s showing on the “likelihood of success” on the 

merits must be. See Direx, 952 F.2d at 813-14, 817. 
11

allow improper use of corporate funds in the election process, sanction excessive campaign 

contributions, and deprive the public of important information. 

E. Even If Plaintiff’s Challenges Are Justiciable, The Commission Is Likely To 

Succeed On The Merits 

1. Plaintiff’s Burden For Its Facial Challenges

 RTAO’s facial challenges include claims of both overbreadth and vagueness. The 

Supreme Court has used various formulations in determining facial overbreadth. Compare, e.g., 

United States v. Salerno, 481 U.S. 739, 745 (1987) (plaintiff must “establish that no set of 

circumstances exists under which the Act would be valid”) with, e.g., New York v. Ferber, 

458 U.S. 747, 769-771 (1982) (plaintiff can succeed if it establishes that a “substantial number” 

of the challenged law’s applications are unconstitutional) (citing Broadrick v. Oklahoma, 

413 U.S. 601, 615 (1973)). Thus, at a minimum, RTAO carries the “heavy burden of proving” 

that the challenged regulations’ “application to protected speech is substantial, ‘not only in an 

absolute sense, but also relative to the scope of the law’s plainly legitimate applications.’” 

McConnell, 540 U.S. at 207 (quoting Virginia v. Hicks, 539 U.S. 113, 120 (2003)). 

 RTAO also argues that the regulations are unconstitutionally vague on their face, that is, 

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

prohibited, so that he may act accordingly” and permit “arbitrary and discriminatory enforcement.” Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). “A court's first task is to 

determine whether the enactment reaches a substantial amount of constitutionally protected 

conduct.” Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494 (1982).

2. RTAO Has Not Met Its Burden For A Preliminary Injunction Against 

The Definition Of Express Advocacy In 11 C.F.R. § 100.22(b) 

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

corporations and labor unions may constitutionally be prohibited from using their general 
12

treasuries to fund communications “expressly advocating” for or against the election of a 

candidate. McConnell, 540 U.S. at 203. RTAO, however, alleges that the regulatory definition 

of “expressly advocating” in 11 C.F.R. § 100.22(b) is unconstitutional, both facially and as 

applied to RTAO’s proposed radio advertisement. (See Compl. ¶¶ 16, 33; Br. 12-13.) Under 11 

C.F.R. § 100.22(b), the definition of “expressly advocating” includes a communication that 

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

containing advocacy of the election or defeat of one or more clearly identified 

candidate(s) because — (1) The electoral portion of the communication is unmistakable, unambiguous, and suggestive of only one meaning; and (2) Reasonable 

minds could not differ as to whether it encourages actions to elect or defeat one or 

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

 a. RTAO’s Challenge To 11 C.F.R. § 100.22(b) Is Not Justiciable 

 Because plaintiff’s Change ad does not constitute express advocacy under section 

100.22(b), RTAO fails to demonstrate that there is a ripe controversy or that it will suffer a 

distinct injury from the provision. Specifically, “[r]easonable minds could . . . differ as to 

whether [the ad] encourages actions to . . . defeat” Senator Obama’s presidential candidacy. 

11 C.F.R. § 100.22(b). Because a reasonable person could conclude that the ad encourages 

listeners to seek information regarding Senator Obama’s position on abortion, the ad is not 

express advocacy under 11 C.F.R. § 100.22(b).5

 Whether the regulation is unconstitutionally 

 

5

 The planned ad (Compl. ¶ 16) does contain several unambiguous “electoral portion[s]” 

referring to Senator Obama’s campaign for President. The electoral portions include a reference 

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

and the manipulation of one of Senator Obama’s campaign slogans, “Change we can believe in,” 

(see http://www.barackobama.com/splash/), into a rhetorical question, “Is this the change that 

you can believe in?” Given the ad’s devotion to speech regarding the abortion issue and the 

indirect and oblique references to the presidential campaign, however, the ad “as a whole” could 

reasonably be interpreted as a call for the listener to learn more about his views on abortion. 

11 C.F.R. § 100.22(b). The campaign slogan has been altered and may be uniquely suited to 

adaptation for non-express advocacy because it contains no explicit electoral component and 

does not reference the candidate in any way. Furthermore, the ad does not question his 

leadership qualities or patriotism, or compare him to other candidates. Cf., e.g., infra p.17 n.8 

(application of express advocacy test in other Commission enforcement matters). 
13

overbroad and vague on its face is thus not justiciable based on RTAO’s proposed activities, 

because plaintiff’s sole alleged ad is not regulated. “‘Determination of the scope and 

constitutionality of legislation in advance of its immediate adverse effect in the context of a 

concrete case involves too remote and abstract an inquiry for the proper exercise of the judicial 

function.’” Renne, 501 U.S. at 323 (quoting Longshoremen’s Union v. Boyd, 347 U.S. 222, 224 

(1954)). The First Amendment overbreadth doctrine “‘only assists plaintiffs who have suffered 

some injury from application of the contested provision to begin with.’ ... In other words, a party 

asserting overbreadth standing must still demonstrate a ‘distinct and palpable injury.’” Peterson 

v. Nat’l Telecomm. & Info. Admin., 478 F.3d 626, 634 (4th Cir. 2007) (internal citations 

omitted). 

b. RTAO Has Failed To Show That It Is Likely To Succeed In 

Establishing That 11 C.F.R. § 100.22(b) Is Facially Unconstitutional 

 Even if the Court finds plaintiff’s claim against section 100.22(b) justiciable, the 

regulation is neither overbroad nor vague. As the Commission’s assessment of plaintiff’s 

intended radio ad demonstrates, the regulation is narrow and clear. RTAO nevertheless claims 

(Br. 8-14) that section 100.22(b) violates the First Amendment because it allegedly regulates 

communications that are not “unambiguously campaign related” and does not comport with a 

narrow interpretation of “magic words” express advocacy. The former claim fails on the face of 

the regulation, which requires that “[t]he electoral portion of the communication [be] 

unmistakable, unambiguous, and suggestive of only one meaning,” which is “advocacy of the 

election or defeat of one or more clearly identified candidate(s).” 11 C.F.R. § 100.22(b) 

(emphasis added). Any communication that unambiguously encourages the defeat of a specific 

candidate is, by definition, unambiguously campaign related. Thus, even assuming arguendo

that the Constitution were to prohibit all regulation of financing for communications that are not 

unambiguously campaign related, section 100.22(b) would not extend beyond that limit. 
14

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

limited to a rigid interpretation of whether a communication contains “magic words” was laid to 

rest in McConnell. In that case, the plaintiffs challenging the constitutionality of the Bipartisan 

Campaign Reform Act of 2002 (“BCRA”), Pub. L. No. 107-115, 116 Stat. 81, argued that 

Buckley had characterized communications containing magic words as the outer constitutional 

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

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

unconstitutional to the extent that it permitted regulation of communications that simply referred 

to federal candidates shortly before elections. See McConnell, 540 U.S. at 190-91. The Supreme 

Court rejected this argument, noting that Buckley had imposed the magic words requirement 

because of the vagueness of FECA’s original statutory text (“relative to” a candidate), not 

because the First Amendment required it in all circumstances. Id. at 191-92. Accordingly, 

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

interpretation rather than a constitutional command.” Id. Because magic words were not a 

constitutional requirement, and because the statute otherwise satisfied constitutional scrutiny, the 

Court upheld BCRA’s prohibition of pre-election, corporation-funded communications that refer 

to federal candidates and are functionally equivalent to express advocacy. See id. at 206, 209; 

WRTL, 127 S. Ct. at 2659. 

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

of Appeals decisions — including the Fourth Circuit’s decision in FEC v. Christian Action 

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

government regulation to a wooden magic-words interpretation. McConnell, 540 U.S. at 278 

n.11 (Thomas, J., dissenting). Other cases adopting or relying on this interpretation of Buckley, 

such as Virginia Society for Human Life, Inc. v. FEC, 263 F.3d 379 (4th Cir. 2001) (“VSHL”), 
15

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

Network as support for magic words “limit”). As Justice Thomas further noted, McConnell, 540 

U.S. at 278 n.11, the only express-advocacy decision that McConnell did not cast into doubt was 

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

the test codified at section 100.22(b). See Express Advocacy; Independent Expenditures; 

Corporate and Labor Organization Expenditures, 60 Fed. Reg. 35,292, 35,292-95 (July 6, 1995) 

(“[S]ection 100.22(b) . . . incorporate[s] . . . the Furgatch interpretation . . . .”). Thus, the claim 

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

fail, and the narrow test of section 100.22(b) is entirely consistent with McConnell’s analysis. 

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

case, the Court reiterated McConnell’s upholding of BCRA’s restriction on corporate 

electioneering communications that are “the functional equivalent of express advocacy,” i.e., 

communications “susceptible of no reasonable interpretation other than as an appeal to vote for 

or against a specific candidate.” WRTL, 127 S. Ct. at 2667. This constitutional standard is 

similar to the test in section 100.22(b): Both tests narrowly inquire into whether there is any 

reasonable way to interpret a communication as non-candidate-advocacy and, if so, do not 

restrict the financing of the communication. Because the constitutional test of WRTL is, by 

definition, not unconstitutionally vague, the test in section 100.22(b) must also satisfy any 

vagueness concerns.6

 To the extent these standards differ, section 100.22(b) is narrower than the 

 

6

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

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

not a relevant consideration . . . .”) with WRTL, 127 S. Ct. at 2668 (“To the extent th[e] evidence 

goes to WRTL’s subjective intent, it is again irrelevant.”). The regulation’s “reasonable person” 

test is like other constitutional objective tests. See, e.g., Wyatt v. Cole, 504 U.S. 158, 166 (1992) 

(qualified immunity depends upon a “wholly objective standard” based on whether a “reasonable 

person” would have known of clearly established rights) (citation omitted); Florida v. Jimeno, 

500 U.S. 248, 251 (1991) (“[C]onsent under the Fourth Amendment is that of ‘objective’ 

reasonableness — what would the typical reasonable person have understood by the exchange 

between the officer and the suspect?”). WRTL’s adoption of a test based on a communication’s 
16

WRTL test, as the regulation requires an “unambiguous” electoral portion, 11 C.F.R. 

§ 100.22(b)(1), while WRTL looks to the “mention” of an election and similar indicia of express 

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

constitutional test broader than that of section 100.22(b) further demonstrates the inapplicability 

here of any rigid magic words test and the permissibility of the Commission’s construction. 

 Plaintiff nonetheless claims (Br. 13) that McConnell and WRTL “affirmed that ‘express 

advocacy’ requires the so-called ‘magic words.’” This argument distorts both cases. As 

discussed above, McConnell emphasized that the presence of magic words is not a constitutional 

requirement. McConnell, 540 U.S. at 191-92. And the portion of WRTL that RTAO cites 

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

permissible test is a magic words test: 

Justice Scalia concludes that “[i]f a permissible test short of the magic-words test 

existed, Buckley would surely have adopted it.” We are not so sure. The question 

in Buckley was how a particular statutory provision could be construed to avoid 

vagueness concerns, not what the constitutional standard for clarity was in the 

abstract, divorced from specific statutory language. Buckley’s intermediate step 

of statutory construction on the way to its constitutional holding does not dictate a 

constitutional test. The Buckley Court’s “express advocacy restriction was an 

endpoint of statutory interpretation, not a first principle of constitutional law.” 

WRTL, 127 S. Ct. at 2669 n.7 (citations omitted).7

 Thus, neither case stands for the proposition 

that the line between permissible and impermissible regulation must be drawn at magic words. 

 RTAO also relies upon North Carolina Right to Life, Inc. v. Leake, 525 F.3d 274 (4th Cir. 

2008), which invalidated a state statute defining non-magic words express advocacy. The 

 

“reasonable” interpretation thus undermines VSHL’s holding that section 100.22(b) is flawed 

because the regulation purportedly “shifts the focus of the express advocacy determination away 

from the words themselves to the overall impressions of the hypothetical, reasonable listener or 

viewer.” VSHL, 263 F.3d at 391. 

7

 The four dissenting Justices in WRTL also explained at length their disagreement with the 

magic words standard. See WRTL, 127 S. Ct. at 2692-96 (Souter, J., dissenting). 
17

definition at issue in Leake, however, was significantly broader and less precise than section 

100.22(b), including such “contextual factors” as “the timing of the communication in relation to 

the events of the day” and “the cost of the communication.” Leake, 525 F.3d at 298. As the 

Fourth Circuit noted, the state statute “swe[pt] far more broadly than WRTL’s ‘functional 

equivalent of express advocacy’ test.” Id. at 297. This is in contrast to section 100.22(b), which 

is narrower than the WRTL standard. The Fourth Circuit concluded, therefore, that “North 

Carolina remains free to adopt a definition of express advocacy consistent with the standards 

approved by McConnell and WRTL.” Id. at 301. Accordingly, section 100.22(b) is consistent 

with both McConnell and WRTL and does not bear the overbreadth infirmities present in Leake.

8

3. RTAO Has Not Met Its Burden For A Preliminary Injunction 

Against The Solicitation Regulation 

 The Commission’s solicitation regulation reasonably implements the Act’s definition of 

“contribution” and provides in part that money given in response to a communication is a 

“contribution ... if the communication indicates that any portion of the funds received will be 

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

§ 100.57(a) (emphasis added). The regulation does not apply to RTAO’s proposed solicitation 

 

8

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

Commission has recently applied its express advocacy regulation. The Commission has applied 

the regulation to communications characterizing presidential candidates as untrustworthy and 

unfit for the presidency. See, e.g., In the Matter of Swiftboat Veterans and POWs for Truth, 

MUR 5511, 5525, Conciliation Agreement ¶¶ 15-17, 25-27 (Dec. 4, 2006) (FEC Exh. 3); In the 

Matter of The Media Fund, MUR 5440, Conciliation Agreement ¶¶ 26-29 (Oct. 29, 2007) (FEC 

Exh. 4). For example, the Commission found that television ads were express advocacy where 

the ads stated that “John Kerry fought and bled in the Vietnam War. He fought side by side with 

brothers who could not get out of the draft because they didn’t have a rich father like George W. 

Bush. . . . You better wake up before you get taken out.” Media Fund, Conciliation Agreement 

¶¶ 28-29. Similarly, the Commission found to be express advocacy ads stating that Senator John 

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

Swiftboat Veterans, Conciliation Agreement ¶ 15. Although none of these ads would satisfy a 

wooden test of magic-words express advocacy, RTAO fails to demonstrate why it was 

unconstitutional for the Commission to find that they were campaign ads. 
18

letter (Compl. ¶ 19) and thus RTAO can demonstrate neither irreparable harm nor an Article III 

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

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

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

arbitrary and capricious. 

a. RTAO’s Challenge To 11 C.F.R. § 100.57 Is Not Justiciable 

 Section 100.57 “turns on the plain meaning of the words used in the communication and 

does not encompass implied meanings or understandings” or “depend on reference to external 

events, such as the timing or targeting of a solicitation.” 69 Fed. Reg. 68,057. Because the 

“plain meaning” of RTAO’s proposed fundraising letter (Compl. ¶ 19) is that the organization 

will be launching a new project to disseminate information about Senator Obama’s views on 

abortion, the letter does not indicate that funds received will be used to support or oppose his 

candidacy within the meaning of the regulation.9

 Accordingly, donations received will not be 

“contributions,” and the regulation will cause RTAO neither a distinct injury nor irreparable 

harm. As a result, RTAO’s facial challenge presents only an abstract inquiry that is not ripe or 

otherwise fit for judicial resolution. See Renne, 501 U.S. at 323-24; supra pp. 5-7, 13. 

b. RTAO Has Failed To Show That It Is Likely To Succeed In 

Establishing That The Solicitation Regulation Is 

Unconstitutional On Its Face 

 The Act authorizes the Commission to regulate “contributions,” but does not specify the 

circumstances under which proceeds from a communication soliciting funds are “contributions.” 

 

9

 The letter asserts that “there won’t be any ‘vote for’ or ‘vote against’ type of ads.” This 

disclaimer, however, would not preclude applying section 100.57 if other parts of the letter 

indicated that some of the funds received would be used to support or oppose Senator Obama’s 

election. See 69 Fed. Reg. 68,057; EMILY’s List v. FEC, No. 05-0049, 2008 WL 2938558, at 

*32, 36 (D.D.C. July 31, 2008); cf. FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. 238, 

249 (1986) (“MCFL”) (“disclaimer of endorsement cannot negate” express advocacy in rest of 

communication). 
19

See 2 U.S.C. § 431(8). Section 100.57 reasonably fills this “gap,” thereby ensuring that money 

donated in response to an appeal to help influence federal elections will not evade the Act’s 

contribution limits and undermine their anti-corruption objective. See Chevron, U.S.A., Inc. v. 

Natural Res. Def. Council, Inc., 467 U.S. 837, 843-44 (1984). 

 The Court in Buckley found that the definitions of “contribution” and “expenditure” raise 

very different constitutional concerns. Because limits on contributions entail “only a marginal 

restriction upon the contributor’s ability to engage in free communication,” 424 U.S. at 20-21, 

they will be upheld under the “less rigorous scrutiny applicable to contribution limits,” 

McConnell, 540 U.S. at 141, i.e., if they are “closely drawn to match a sufficiently important 

interest.” Id. at 136 (citations and quotation marks omitted). In particular, Buckley found it 

unnecessary to narrowly construe “contribution” as it did “expenditure,” and instead stated that 

the term includes 

not only contributions made directly or indirectly to a candidate, political party, or 

campaign committee, and contributions made to other organizations or individuals 

but earmarked for political purposes, but also all expenditures placed in 

cooperation with or with the consent of a candidate . . . . 

424 U.S. at 78 (emphasis added). The Court did not, as plaintiff suggests (Br. 14-15), employ an 

“unambiguously-campaign-related” analysis or narrowly construe “contribution” beyond the 

“earmarked for political purposes” criterion. 424 U.S. at 24 n.24, 78. Because RTAO’s 

challenge to 11 C.F.R. § 100.57 rests heavily on this mistaken notion of the Court’s construction, 

plaintiff has little likelihood of success on the merits.10 

 

10 RTAO compounds its errors by suggesting (Br. 15) that donations cannot be deemed 

“contributions” until the recipient identifies specific regulable activity for which the money will 

be spent. The definition of “contribution” contains no such tracing requirement, 2 U.S.C. 

§ 431(8), and the Supreme Court has never suggested such a construction. Cf. Cal. Med. Ass’n v. 

FEC, 453 U.S. 182, 199 n.19 (1981) (contribution limits apply to all donations to political 

committees, despite attempt to donate solely for administrative expenses). 
20

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

Educ. Fund, Inc. (“SEF”), 65 F.3d 285 (2d Cir. 1995), which had addressed whether a mailing 

sent by a nonprofit issue advocacy group constituted solicitation of “contributions” in the context 

of a disclaimer requirement. To resolve this issue, the court analyzed the phrase “earmarked for 

political purposes” as used in Buckley. It explained that, “[e]ven if a communication does not 

itself constitute express advocacy, it may still fall within the reach of” the Act’s provision requiring certain disclosures in communications that “solicit” any contributions if the communication 

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

defeat of a clearly identified candidate for federal office.” SEF, 65 F.3d at 295-96. 

 More recently, courts in the D.C. Circuit have refused to enjoin application of section 

100.57. In EMILY’s List, the court upheld the constitutionality of 11 C.F.R. § 100.57 against a 

facial challenge. 2008 WL 2938558; see also EMILY’s List v. FEC, 362 F. Supp. 2d 43 

(D.D.C.), aff’d, 170 Fed. Appx. 719, 2005 WL 3804998 (D.C. Cir. 2005) (previously denying a 

preliminary injunction against the regulation). The court specifically rejected the argument that 

the use of “support or oppose” made the regulation unconstitutionally vague. 

[T]he Supreme Court rejected just such a claim in McConnell, stating that “[t]he 

words ‘promote,’ ‘oppose,’ ‘attack,’ and ‘support’ ... ‘provide explicit standards 

for those who apply them’ and ‘give the person of ordinary intelligence a 

reasonable opportunity to know what is prohibited.’” 

2008 WL 2938558, at *29 (emphasis by the court; citations omitted). 

 The Washington Supreme Court, sitting en banc, recently also upheld the 

constitutionality of “support” and “oppose.” Voters Educ. Comm. v. Wash. State Pub. 

Disclosure Comm’n, 166 P.3d 1174 (Wash. 2007), cert. denied, 128 S. Ct. 2898 (2008). The 

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

of ‘political committee’” is not unconstitutionally vague. Id. at 1183 n.8. Rather, it is 

“significantly more precise than the phrase ‘relative to a clearly identified candidate,’ which the 
21

[United States Supreme] Court determined was vague in Buckley.” Id. at 1184. A “person of 

ordinary intelligence” could understand the meaning of the state’s definition. Id. Relying on 

McConnell’s judgment, 540 U.S. at 170 n.64, that the words “promotes,” “supports,” “attacks,” 

and “opposes” in 2 U.S.C. § 431(20)(A)(iii) were sufficiently precise to satisfy First Amendment 

concerns, the Washington court explained that McConnell’s reasoning goes beyond political 

party speakers. “[U]nlike the political party-specific statutes that are the primary focus of the 

McConnell decision, ... in note 64 the Court rejects a vagueness challenge to the definition of 

‘[f]ederal election activity,’ in ... § 431(20)(A)(iii), a provision that is not limited to party 

speakers.” 166 P.3d at 1184 n.9 (emphasis in original). 

 Conversely, none of the cases RTAO cites (Br. 16) actually supports its argument. Leake 

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

opposes the nomination or election of’” a clearly identified candidate. Leake, 525 F.3d at 280 

(emphasis added). However, contrary to RTAO’s assertion (Br. 15-16), the court did not find the 

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

method was unconstitutionally vague and overbroad, the court assured North Carolina that it 

“remains free to enforce all campaign finance regulations that incorporate the phrase ‘to support 

or oppose the nomination or election of’” a clearly identified candidate. Leake, 525 F.3d at 301. 

Moreover, the court distinguished the provision it invalidated from the “support or oppose” 

provision upheld in Voters Educ. Comm. Id. at 299.

 In North Carolina Right to Life, Inc. v. Bartlett, 168 F.3d 705 (4th Cir. 1999), a state 

statute defined “political committee” as any entity “the primary or incidental purpose of which is 

to support or oppose any candidate or political party or to influence or attempt to influence the 

result of an election.” Id. at 712 (emphasis added). Concerned that this definition would include 

entities engaged only in issue advocacy, the Fourth Circuit ruled that the references to 
22

influencing elections made the definition unconstitutionally vague and overbroad. Id. at 712-13. 

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

unconstitutional.11 

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

concerned a state campaign finance statute that included language in addition to “support” and 

“oppose,” and the court found the additional language problematic. Using Buckley as a guide, 

the court construed the definition of “expenditure” to avoid unconstitutional vagueness of the 

phrase “or otherwise influencing.” The case did not concern the definition’s phrase “for the 

purpose of supporting, opposing.”12 

 In sum, the solicitation regulation causes plaintiff no harm, plaintiff misunderstands the 

Supreme Court’s explanation of “contribution,” and the cases plaintiff cites do not hold that 

“support or oppose the election of a ... candidate” is unconstitutional. In contrast, the authorities 

on which the Commission relies confirm the constitutionality of that language. 

 

11 RTAO also cites (Br. 16; Compl. ¶ 36) Anderson v. Spear, 356 F.3d 651 (6th Cir. 2004), 

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

discusses limits on “electioneering” near a polling place. The Sixth Circuit did not question the 

phrase “solicitation of votes for or against any candidate” but instead found that the prohibition 

of “the displaying of signs [and] the distribution of campaign literature, cards, or handbills” was 

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

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

“material or information relating to” an election, not “support or oppose.” 378 F.3d at 992. 

12 RTAO also cites two loyalty oath cases (Br. 16; Compl. ¶ 36), but they, too, do not 

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

Cramp v. Bd. of Pub. Instr. of Orange County, Fla., 368 U.S. 278, 286 (1961), the Court struck 

down as unconstitutionally vague a law requiring public employees to swear that they have not 

and will not knowingly “lend [their] aid, support, advice, counsel or influence to the Communist 

Party.” And in Cole v. Richardson, 405 U.S. 676, 684 (1972), the Court upheld the “oppose the 

overthrow of the government” clause in a loyalty oath against a vagueness challenge. 
23

4. RTAO Has Not Met Its Burden For A Preliminary Injunction Against 

The Commission’s Analysis Of Political Committee Status

 As explained above, RTAO’s intended activity as alleged in its complaint would not 

constitute making expenditures or receiving contributions; therefore, RTAO would not meet 

either of the statutory criteria for “political committee” status in 2 U.S.C. § 431(4). RTAO has 

thus failed to demonstrate a distinct injury or irreparable harm from the Commission’s approach 

to analyzing political committee status. As a result, RTAO’s facial challenge presents only an 

abstract inquiry that is not ripe or otherwise fit for judicial resolution. See Renne, 501 U.S. at 

323-24; supra pp. 5-7, 13. Even if the Court determines that plaintiff has alleged a case or 

controversy within Article III, the Administrative Procedure Act (“APA”) does not provide for 

judicial review of the Commission’s enforcement policy. In any event, this policy is 

constitutional and properly within the Commission’s discretion. 

 

a. The Commission’s Enforcement Policy Is Not Reviewable 

Under The APA 

 RTAO challenges a policy that does not constitute final agency action, so this claim is not 

reviewable under the APA. Courts may only hear APA suits based on “[a]gency action made 

reviewable by statute and final agency action for which there is no other adequate remedy in a 

court.” 5 U.S.C. § 704 (emphasis added). “Final” agency action consummates the agency’s 

decision-making process and determines the rights and obligations of parties. Bennett v. Spear, 

520 U.S. 154, 177-78 (1997); see also Brock v. Cathedral Bluffs Shale Oil Co., 796 F.2d 533, 

538-39 (D.C. Cir. 1986) (enforcement policy and guidelines “used by inspectors as guidance in 

making individual enforcement decisions” not final agency action). 

 After a rulemaking concerning political committee status, the Commission issued an 

Explanation and Justification (“E&J”) for its decision not to promulgate a revised definition of 

“political committee” or to single out section 527 organizations for increased regulation. 72 Fed. 

Reg. at 5595. As part of that E&J, the Commission “discusse[d] several recently resolved 
24

administrative matters that provide considerable guidance to all organizations regarding ... 

political committee status.” Id. Its decision to continue analyzing political committee status on a 

case-by-case basis rather than promulgating a rule of general application was challenged and 

upheld in Shays v. FEC, 511 F. Supp. 2d 19 (D.D.C. 2007) (“Shays II”). The E&J’s primary 

purpose was to explain why a broad regulation was not created; it neither describes itself as a 

“policy statement,” nor purports to establish a binding norm or decide anyone’s legal status. 

RTAO cites nothing to the contrary. The E&J did not create a new regulation or change past 

policy but simply explained how the Commission’s particular case-by-case enforcement actions 

provide “guidance” to organizations about political committee status and the major purpose test. 

72 Fed. Reg. at 5604. This guidance is not “final” agency action subject to APA review. 

b. The Commission’s Political Committee Analysis Is Lawful 

 Even if reviewable, the Commission’s approach to political committee status is constitutional. As explained supra p. 4, in Buckley, the Court established the “major purpose” test and 

limited the definition of “political committee” to organizations controlled by a candidate or 

whose major purpose is the nomination or election of a candidate. Buckley, 424 U.S. at 79. 

“Expenditures of candidates and of ‘political committees’ so construed can be assumed to fall 

within the core area sought to be addressed by Congress. They are, by definition, campaign 

related.” Id; see also MCFL, 479 U.S. at 252 n.6 (plaintiff not a political committee because “its 

central organizational purpose is issue advocacy”); McConnell, 540 U.S. at 170 n.64. 

 RTAO’s claim appears to focus on the Commission’s implementation of the major 

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

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

requires an understanding of an organization’s overall activities. In its enforcement decisions, 

the Commission considers a variety of factors — most of which courts have endorsed or RTAO 
25

does not challenge — to determine whether an organization’s major purpose is the election or 

defeat of a candidate.13 Those factors include an organization’s public statements, 

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

governing documents, and the proportionate amount of spending on election-related activity. See

72 Fed. Reg. at 5605. Although RTAO concedes (Br. 19) that an organization’s “organic” 

documents are relevant to determine major purpose, documents like articles of incorporation, 

though useful, paint only an abstract picture of an organization’s actual activities and 

disbursements.

 Courts have endorsed evaluation of public statements and an organization’s spending or 

contributions to determine its major purpose. See, e.g., FEC v. Malenick, 310 F. Supp. 2d 230, 

234-37 (D.D.C. 2004) (court considered organization’s statements in brochures and “fax alerts” 

sent to potential and actual contributors, as well as its spending influencing federal elections); 

FEC v. GOPAC, Inc., 917 F.Supp. 851, 859 (D.D.C. 1996) (“The organization’s purpose may be 

evidenced by its public statements of its purpose or by other means, such as its expenditures in 

cash or in kind to or for the benefit of a particular candidate or candidates.”). Courts also 

consider non-public statements. Malenick, 310 F.Supp. 2d at 235 (letter from president to 

organization’s primary contributor); GOPAC, 915 F.Supp. at 864, 866 (description of 

 

13 The Commission generally considers the major purpose test after first determining that an 

organization has either spent more than $1,000 in expenditures or raised more than $1,000 in 

contributions. See 72 Fed. Reg. at 5603-04. The only court to address this approach has 

criticized the Commission for determining whether communicative expenditures contain express 

advocacy before evaluating the major purpose of an organization; the court believed that the 

express advocacy analysis is unnecessary for groups whose major purpose is known to be 

campaign related. Shays II, 511 F. Supp. 2d at 26-27. Although the Commission disagrees with 

that court’s criticism, it recognizes that its own interpretation may tend to limit the number of 

organizations that qualify as political committees. RTAO ignores the conservative aspect of the 

Commission’s approach. Cf. also Akins v. FEC, 101 F.3d 731, 741-42 (D.C. Cir. 1996) (en 

banc), vacated on other grounds, 524 U.S. 11 (1998) (D.C. Circuit would not have applied major 

purpose test at all if organization made more than $1,000 in contributions, as opposed to 

independent expenditures). 
26

organization’s meetings attended by national leaders; reference to organization’s “Political 

Strategy Campaign Plan and Budget”). 

 In numerous administrative enforcement proceedings and advisory opinions, the 

Commission has examined these factors and others to determine whether organizations satisfy 

the major purpose test. See 72 Fed. Reg. at 5605-06. RTAO does not allege that any of these 

analyses came to the wrong conclusion. Instead, RTAO relies upon unsubstantiated and 

irrelevant allegations.14

 Finally, RTAO argues (Br. 18) that the Commission has improperly reformulated the 

major purpose test to focus on “Federal campaign activity.” Buckley, however, uses the term 

“campaign related” to summarize legitimately regulable activity by political committees and to 

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

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

major purpose is thus reasonable and also takes into account that not all “campaign related” 

spending involves communications; it may also involve expenditures for activity such as gaining 

ballot access rather than payments for disseminating advocacy messages. Moreover, the use of 

the word “federal” simply clarifies that to satisfy the major purpose test an organization’s 

campaign activity must involve federal candidates, not state or local ones. See 72 Fed. Reg. at 

5601. Like the rest of the Commission’s interpretation, this part is reasonable and constitutional. 

 

14 For example, RTAO makes the unsubstantiated claim that the existence of an administrative complaint filed with the FEC “can shut down an organization.” (Compl. ¶ 45; Br. 19.) 

Even if it were true, that statement would prove too much. Congress established the 

Commission’s balanced enforcement mechanisms decades ago, providing specific “procedures 

purposely designed to ensure fairness not only to complainants but also to respondents.” Perot v. 

FEC, 97 F.3d 553, 559 (D.C. Cir. 1996). The Commission does not investigate potential 

violations of the Act until at least four of its members have voted to find “reason to believe” that 

the law has been violated. See 2 U.S.C. § 437g(a)(2). RTAO’s argument would sacrifice proper 

law enforcement to speculative and generalized fear. See FTC v. Standard Oil Co. of Cal., 

449 U.S. 232, 244 (1980) (expense and annoyance of agency proceedings do not constitute 

irreparable injury, but are part of social burden of living under government). 
27

5. RTAO Has Not Met Its Burden For A Preliminary Injunction 

Against 11 C.F.R. § 114.15 

 Section 114.15 straightforwardly implements WRTL by providing additional guidance 

without expanding beyond the constitutional boundary described in that decision. Tracking the 

language of WRTL, section 114.15 states that a corporation or union may fund an electioneering 

communication “unless the communication is susceptible of no reasonable interpretation other 

than as an appeal to vote for or against a clearly identified Federal candidate.” 11 C.F.R. 

§ 114.15(a); Electioneering Communications, 72 Fed. Reg. 72,899, 72,902 (Dec. 26, 2007); 

WRTL, 127 S. Ct. at 2667. For additional clarity, this general exemption is supplemented by a 

safe harbor provision for lobbying messages and commercial advertisements. 11 C.F.R. 

§ 114.15(b); 72 Fed. Reg. at 72,903. The regulation also adheres to WRTL’s teaching that when 

there is doubt about a communication’s meaning, the “tie goes to the speaker,” 127 S. Ct. at 

2669; the regulation’s rule of interpretation states that in “interpreting a communication under 

paragraph (a) of this section, any doubt will be resolved in favor of permitting the 

communication,” 11 C.F.R. § 114.15(c)(3). 

a. RTAO’s Challenge To 11 C.F.R. § 114.15 Is Not Justiciable 

 For substantially the same reasons that the ad is not express advocacy under 11 C.F.R. 

§ 100.22(b), it also qualifies for the general exemption set out in section 114.15(a).15 See supra

p. 12 & n.5. Moreover, Change shares many characteristics with an example included in the 

Commission’s rulemaking of a communication that does not qualify for the safe harbor but that 

is nevertheless permissible under 11 C.F.R. § 114.15(a). 72 Fed. Reg. at 72,908 (Example 1). 

That ad criticized a congressman for his environmental record and urged listeners to call him and 

 

15 The parties agree that Change does not fall within the safe harbor of section 114.15(b) 

“because Change identifies Senator Obama as a Democrat and the ad neither has a grassroots 

lobbying ‘focus[]’ nor ‘proposes a commercial transaction.’” (Br. 22.) 
28

“[t]ell him to protect America’s environment.” Id. While both ads include indicia of express 

advocacy under 11 C.F.R. § 114.15(a), they both focus on public policy issues. Because “any 

doubt is to be resolved in favor of finding the communication permissible,” both may be 

financed with corporate or union funds. Id. In contrast, Change differs from another sample ad 

that is not permissible under the regulation; that ad identifies two “candidates,” then asks “where 

do the candidates stand?”, and characterizes the candidates’ records positively and negatively. 

72 Fed. Reg. 72,909 (Example 2). In sum, section 114.15 does not prohibit RTAO from running 

the Change advertisement, and the regulation causes RTAO no distinct injury or irreparable 

harm. As a result, RTAO’s facial challenge presents only an abstract inquiry that is not ripe or 

otherwise fit for judicial resolution. See Renne, 501 U.S. at 323-24; supra pp. 5-7, 13. 

b. RTAO Has Failed To Show That It Is Likely To Succeed In 

Establishing That 11 C.F.R. § 114.15 Is Unconstitutional On Its Face 

 Even if the Court finds plaintiff’s claim against section 114.15 justiciable, the regulation 

is effectively a verbatim adoption of the Supreme Court’s analysis in WRTL and therefore 

constitutional. It is neither vague nor overbroad. 

 Contrary to plaintiff’s inaccurate description (Br. 22-23) of a rule of interpretation in 

section 114.15(c), the regulation does not “demote” the Supreme Court’s standard. As explained 

above, section 114.15 contains only one standard, the one articulated by the Court itself: 

A corporation or union can use its general treasury funds to pay for a communication “unless the 

communication is susceptible of no reasonable interpretation other than as an appeal to vote for 

or against a clearly identified Federal candidate.” 11 C.F.R. § 114.15(a). The rules of 

interpretation articulated in section 114.15(c) come directly from the Court’s analysis in WRTL 

when it found the reasonable interpretation of the advertisements at issue in that case. The 

Court’s criteria for determining whether an ad lacks or contains indicia of express advocacy were 

the following: 
29

First, [the ads’] content is consistent with that of a genuine issue ad: The ads 

focus on a legislative issue, take a position on the issue, exhort the public to adopt 

that position, and urge the public to contact public officials with respect to the 

matter. Second, their content lacks indicia of express advocacy: The ads do not 

mention an election, candidacy, political party, or challenger; and they do not take 

a position on a candidate’s character, qualifications, or fitness for office. 

WRTL, 127 S. Ct. at 2667. These are precisely the factors identified in section 114.15(c)(2), and 

plaintiff’s assertion (Br. 23) that they are “peripheral” to the Supreme Court’s analysis is belied 

by the Court’s own express words quoted above.16

 The Commission’s explanation in section 114.15(c) that it will consider both whether a 

communication includes indicia of express advocacy and whether it has an interpretation other 

than as an appeal to vote for or against a candidate to determine, “on balance,” whether it is 

permissible, is entirely consistent with the Supreme Court’s own analysis. The Court itself set 

out the criteria quoted above and, in succeeding paragraphs, analyzed both whether the particular 

ads at issue included indicia of express advocacy and whether they had a message other than an 

appeal to vote against a particular Senator. See WRTL, 127 S. Ct. at 2667. Thus, contrary to 

RTAO’s accusation, the Commission has not given short shrift to the Court’s fundamental test 

by listing indicia of express advocacy and by indicating that such indicia will be noted in 

determining a communication’s reasonable interpretation. That is precisely what the Supreme 

Court did in WRTL; the fact that the Court did not provide step-by-step instructions for its own 

mode of analysis is irrelevant.

 

16 RTAO argues that the decision in Leake somehow supports its position that section 

114.15 is void. It does not. Leake struck down a state law provision because it relied on openended factors such as “‘[the] essential nature [of the communication],’ ‘the timing of the 

communication in relation to events of the day,’ ‘the distribution of the communication to a 

significant number of registered voters for that candidate’s election,’ and ‘the cost of the 

communication.’” 525 F.3d at 283-84. These sorts of factors are specifically excluded from 

consideration under section 114.15(d) (“[T]he Commission may consider only the 

communication itself and basic background information ....”). RTAO does not question that 

section 114.15 adheres to the Supreme Court’s limited use of context in WRTL. 
30

 In sum, because section 114.15 adheres closely to the Supreme Court’s analysis in WRTL,

it is not overbroad or vague, and does not exceed the FEC’s statutory authority. 

III. CONCLUSION 

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

denied. 

Respectfully submitted, 

 /s/ 

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

VA Bar No. 46929 

Thomasenia P. Duncan,* General Counsel, 

tduncan@fec.gov 

David B. Kolker,* Associate General Counsel, 

dkolker@fec.gov 

Kevin Deeley,* Assistant General Counsel, 

kdeeley@fec.gov 

Holly Baker,* Attorney, hbaker@fec.gov 

Vivien Clair,* Attorney, vclair@fec.gov 

Seth Nesin,* Attorney, snesin@fec.gov 

Adav Noti,* Attorney, anoti@fec.gov 

Claire Rajan,* Attorney, crajan@fec.gov 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street NW 

Washington, DC 20463 

Telephone: (202) 694-1650 

Fax: (202) 219-0260 

* pro hac vice application pending
CERTIFICATE OF SERVICE

I hereby certify that I will cause the foregoing to be hand-delivered on the 14th 

day of August, 2008, to: 

Michael Boos 

Attorney & Counselor at Law 

4101 Chain Bridge Road, Suite 313 

Fairfax, VA 22030 

And I hereby certify that on the 14th day of August, 2008, I will electronically file 

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

notification of such filing (NEF) to the following: 

Michael Boos, michael.boos@gte.net 

Attorney & Counselor at Law 

4101 Chain Bridge Road, Suite 313 

Fairfax, VA 22030 

James Bopp, Jr., jboppjr@aol.com 

Barry Alan Bostrom, bbostrom@bopplaw.com 

Clayton James Callen, ccallen@bopplaw.com 

Richard Eugene Coleson, rcoleson@bopplaw.com 

Bopp, Coleson and Bostrom 

1 South 6th St. 

Terre Haute, IN 47807-3510 

John Richard Griffiths, john.griffiths@usdoj.gov 

United States Department of Justice 

Civil Division, Federal Programs Branch 

Post Office Box 883 

Washington, DC 20044 

Debra Jean Prillaman, debra.prillaman@usdoj.gov 

Office Of The U.S. Attorney 

600 East Main Street, Suite 1800 

Richmond, VA 23219 

 /s/ 

Audra Hale-Maddox 

VA Bar No. 46929 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street NW 
Washington, DC 20463 

Telephone: (202) 694-1650 

Fax: (202) 219-0260 

ahale-maddox@fec.gov 
FEC EXHIBIT 1 



FEC EXHIBIT 2 
1 Name of organization Employer identification number

THE REAL TRUTH ABOUT OBAMA 26 - 3068430

2 Mailing address (P.O. box or number, street, and room or suite number)

C/O JAMES K DISNEY 4515 FOREST HILL AVE APT 1

City or town, state, and ZIP code

RICHMOND, VA 23225

3 Check applicable box: ✔ Initial notice Amended notice Final notice 

4a Date established 4b Date of material change

07/29/2008

5 E-mail address of organization 

jkdisney@juno.com

6a Name of custodian of records 6b Custodian's address

Barry A Bostrom Bopp Coleson and Bostrom 1 South 6th Street

Terre Haute, IN 47807 - 3510

7a Name of contact person 7b Contact person's address

Barry A Bostrom Bopp Coleson and Bostrom 1 South 6th Street

Terre Haute, IN 47807 - 3510

8 Business address of organization (if different from mailing address shown above). Number, street, and room or suite number

C/O JAMES K DISNEY 4515 FOREST HILL AVE APT 1

City or town, state, and ZIP code

RICHMOND, VA 23225

9a Election authority 9b Election authority identification number

NONE

10a Is this organization claiming exemption from filing Form 8872, Political Organization Report of Contributions and Expenditures, as a qualified state or local

political organization? Yes No ✔

10b If 'Yes,' list the state where the organization files reports: 

11 Is this organization claiming exemption from filing Form 990 (or 990-EZ), Return of Organization Exempt from Income Tax, as a caucus or associations of state

or local officials? Yes No ✔

12 Describe the purpose of the organization

To provide accurate and truthful information about the public policy positions of Senator Barack Obama; To enage in any activities related to federal elections that are authorized

by and are consistent with Section 527 of the Internal Revenue Code except that the corporation shall not (a) expressly advocate the election or defeat of any clearly identified

candidate for public office, or (b) make any contribution to any candidate for public office.
13 Check if the organization has no related entities...........................................................................................................................................................................................✔

Dan Magan Sr Member, Board of Directors 518 Buck Mountain Road

Earlysville, VA 22936

James K Disney Secretary/Treasurer C/O JAMES K DISNEY 4515 FOREST HILL AVE APT 1

RICHMOND, VA 23225

Laura Echevarria Vice Chairman 4514 Garfield Court

Fredericksburg, VA 22408

Kevin Allen Chairman 3001 Emerald Chase Dr

Oakhill, VA 20171

Barry A Bostrom 07/29/2008
FEC EXHIBIT 3 
FEDERAL ELECTION COMMISSION 

WASHINGTON, DC 20463 

' December 13,2006 

Benjamin L. Ginsberg, Esq. 

Glenn M. Willard, Esq. 

Patton Boggs UP 

2550 M Street, NW 

Washington, DC 20037-1350 

Re: MURs 551 1 and 5525 

Swift Boat Veterans and POWs for Truth 

Dear Messrs. Ginsberg and Willard: 

On December 8,2006, the Federal Election Commission accepted the signed conciliation 

agreement and civil penalty submitted on your client's behalf in settlement of violations of 

2 U.S.C. $8 433,434,441a(f) and 441b(a), provisions of the Federal Election Campaign Act of 

1971, as amended, Accordingly, the file has been closed in this matter. 

Documents related to the case will be placed on the public record within 30 days. See 

Statement of Policy Regarding Disclosure of Closed Enforcement and Related Files, 68 Fed. 

Reg. 70,426 (Dec. 18,2003). Information denved in connection with any conciliation attempt 

will not become public without the wntten consent of the respondent and the Commission. See 

2 U.S.C. $ 437g(a)(4)(B). 

Enclosed you will find a copy of the fully executed conciliation agreement for your files. 

Please note that the civil penalty is due within 30 days of the conciliation agreement's effective 

date. If you have any questions, please contact us at (202) 694-1650. 

Sincere1 y, 

Peter G. Blumberg 

Attorney 

Enclosure 

Conciliation Agreement 
BEFORE THE FEDERAL ELECTION COMMISSION 

ZOOE OEC -4 P 3: 4b 

In the Matter of 1 

1 

1 MURs 5511 and 5525 

1 

Swiftboat Veterans and POWs for Truth 

CONCILIATION AGREEMENT 

These matters were initiated by signed, sworn, and notarized complaints. The Federal 

Election Commission (“Commission”) found reason to believe that Swiftboat Veterans and 

POWs for Truth (“SwiftVets”) violated 2 U.S.C. 00 433,434,441a(f), and 441b(a) of the Federal 

Election Campaign Act, as amended, (“the Act”) by failing to register as a political committee 

with the Commission, by failing to report contributions and expenditures as a political Commjttee 

to the Commission, by knowingly accepting individual contributions in excess of $5,000, and by 

knowingly accepting corporate andor union contributions. Following an investigation, the 

Commission concluded that Swiftvets did not unlawfidly coordinate its activities with, or make 

excessive in-kind contributions to, any federal candidate or political party committee. 

NOW, THEREFORE, the Commission and SwiftVets, having participated in infonnal 

methods of conciliation, prior to a finding by the Commission of probable cause to believe, do 

hereby agree as follows: 

I. The Commission has jurisdiction over the Swiftvets and the subject matter of this 

proceeding. 

II. Swiftvets has had a reasonable opportunity to demonstrate that no action should 

be taken in this matter. 

111. Swiftvets enters voluntarily into this agreement with the Commission. 
IV. The pertinent facts in these matters are as follows: 

Applicable Law 

1. The Act defines a political committee as “any committee, club, 

association, or other group of persons which receives contributions aggregating in excess of 

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

, during a calendar year.” 2 U.S.C. 6 43 1 (4)(A). 

I 

2. The Act defines the term “contribution” as including “anything of value, 

made by any person for the purpose of influencing any election for Federal office.” 2 U.S.C. 0 

431 (8)(A)(i); see also FEC v. Survival Education Fund, Inc., 65 F.3d 285,295 (2d Ck 1995) 

(where a statement in a solicitation ‘leaves no doubt that the funds contributed would be used to 

’ advocate [a candidate’s election or] defeat at the polls, not simply to criticize his policies during 

the election year,” proceeds from that solicitation are contributions). 

3. The Act defines the term “expenditure” as including “anything of value 

made by any person for the purpose of influencing any election for Federal office.” 2 U.S.C. 0 

43 1 (9)(A)(i). 

4. Under the Commission’s regulations, a communication contains express 

advocacy when it uses phrases such as “vote for the President,” “re-elect your Congressman,” or 

“Smith for Congress,” or uses campaign slogans or words that in context have no other 

reasonable meaning than to urge the election or defeat of one or more clearly identified 

candidates, such as posters, bumper stickers, or advertisements that say, ‘Nixon’s the One,” 

“Carter ‘76,” “ReagadBush,” or “Mondale!” See 1 1 C.F.R. 0 100.22(a); see also FEC v. 

Massachusetts Citizens for tge, 479 U.S. 238,249 (1986) (“[The publication] provides in effect 

an explicit directive: vote for these (named) candidates. The fact that this message, is marginally 

I 

’ 
less direct than “Vote for Smith” does not change its essential nature.”). Courts have held that 

“express advocacy also include[s] verbs that exhort one to campaign for, or contribute to, a 

clearly identified candidate.” FEC v. Christian Coalition, 52 F.Supp. 2d 45,62 (D.D.C. 1999) 

(explaining why BuckZey v. VaZeo, 424 U.S. 1,44, n.52 (1 976), included the word “support,” in 

addition to “vote for” or “elect,” on its list of examples of express advocacy Communication). 

5. The Commission’s regulations provide that express advocacy also includes 

communications containing an “electoral portion” that is “unmistakable, unambiguous, and 

suggestive of only one meaning” and about which “reasonable minds could not differ as to 

whether it encourages actions to elect or defeat” a candidate when taken as a whole and with 

limited reference to external events, such as the proximity to the election. 11 C.F.R. 8 100.22@). 

Communications discussing or commenting on a candidate’s character, qualifications or 

accomplishments are considered express advocacy under section 100.22@) if, in context, they 

have no other reasonable meaning than to encourage actions to elect or defeat the candidate in 

question.” See Explanation and Justification, 60 Fed. Reg. 35,291,35,295 (Jul. 6,1995). 

6. The Supreme Court has held that “[tlo fblfill the purposes of the Act” and 

, avoid “reach[ing] groups engaged purely in issue discussion,” only organizations whose major 

purpose is campaign activity can be considered political committees under the Act. See, e.g., 

Buckley v. Valeo, 424 U.S. 1,79 (1975); FEC v. Massachusetts Citizens for Life, 479 U.S. 238, 

262 (1 986) (“MCFL’’). It is well-settled that an organization can satis@ Buckley ’s “major 

purpose” test through sufficient spending on campaign activity. MCFL, 479 U.S. at 262-264; see 

also Richey v. Tyson, 120 F. Supp. 2d 1298,13 10 n. 1 1 (S.D. Ala. 2000). An organization’s 

“major purpose” may also be established through public statements of purpose. See, e.g., FEC v. 
Malenick, 310 F. Supp. 2d 230,234-36 (D.D.C. 2004); FEC v. GOPAC, 917 F. Sum. 851,859 

(D.D.C. 1996). 

7. The Act requires all political committees to register with the Commission 

:and file a statement of organization within ten days of becoming a political Committee, including 

Ithe name, address, and type of committee; the name, address, relationship, and type of any 

connected organization or affiliated committee; the name, address, and position of the custodian 

of books and accounts of the committee; the name and address of the treasurer of the Committee; 

and a listing of all banks, safety deposit boxes, or other depositories used by the Committee. See 

.2 U.S.C. 9 433. 

8. Each treasurer of a political committee shall file periodic reports of the 

committee’s receipts and disbursements with the Commission. See 2 U.S.C. 0 434(a)(l). In the 

case of committees that are not authorized committees of a candidate for Federal office, these 

reports shall include, inter alia, the mount of cash on hand at the beginning of the reporting 

period, see 2 U.S.C. 0 434@)(1); the total amounts of the committee’s receipts for the reporting 

period and for the calendar year to date, see 2 U.S.C. 0 434(b)(2); and the total amounts of the 

committee’s disbursements for the reporting period and the calendar year to date. See 2 U.S.C. 4 

434(b)(4). 

9. The Act states that no person shall make contributions to any political I 

I committee that, in the aggregate, exceed $5,000 in any calendar year, with an exception for 

political committees established and maintained by a state or national political party. See 2 

U.S.C. 0 441 a(a)( 1)(C). Further, the Act states that no political Committee shall knowingly 

accept any contribution in violation of the limitations imposed under this section. See 2 U.S.C. 0 

441a(f). 
10. Pursuant to 2 U.S.C. 0 441 b(a), it is unlawfbl for any political committee 

to knowingly accept or receive, directly or indirectly, any contribution made in connection with a 

federal election fiom a corporation. 

1 1. Under certain circumstances, organizations established under I.R.C. 0 527 

' may not qualify as political committees. There is substantial overlap in the content of disclosures 

required of such Section 527 organizations and the disclosures required of political committees, 

although they differ in format, timing and level of detail. Unlike a political committee, which 

must register and file reports with the Commission, a Section 527 organization may avoid 

disclosing certain receipts to the IRS if it pays the highest corporate tax rate on such funds. 

SwiftVets, however, maintains that it did not avail itself of this provision and disclosed all of its 

receipts. In addition, an organization that does not trigger political committee status may accept 

contributions larger than $5:000 and accept (for limited purposes) hds fiom corporate or union 

sources. 

Factual Backmound I 

12. Swiftvets is an unincorporated entity organized under Section 527 of the 

' Internal Revenue Code, and it filed its Notice of 527 Status with the IRS on April 23,2004. 

Swiftvets has not registered as a political committee with the Federal Election Commission, but 

filed public reports of its receipts and disbursements with the IRS, and also filed reports as to 

, some of its receipts and disbursements with the Commission under the electioneering 

communications provisions of the Act. 

13. Swiftvets contends that its 2004 activities were intended to set the record 

straight with regard to the public discussion of John Kerry's conduct in, and statements about, the 

, Vietnam War, particularly Mr. Kerry's statements about the conduct of those who fought in 
Vietnam, and the declaration that he was "reporting for duty" in connection with his 2004 

Presidential campaign. Swiftvets engaged in no activities prior to it becoming apparent that 

John Kerry would be the Democratic Party's nominee for President of the United States in Spring 

' 2004, and also engaged in no political activities after John Kerry lost the Presidential el,ection in 

November 2004, which it contends was because it had made its point on the issue of concern at 

' the time it was the focus of public debate. 

14. During the 2004 election cycle, Swiftvets raised $25,080,796. As 

discussed below, most if not all of the solicitations for such funds made reference to Mr. Kerry's 

dP 2004 Presidential campaign. Swiftvets contends that a majority of its receipts came &om 

155,000 separate individual contributions fiom small grassroots donors, at an average of $124 

(14 

P4 

u'l 

each. The remaining Swiftvets receipts came fkom large individual donors or COTPOTSLfions. 

Swiftvets also maintains that its $7 15,050 in receipts from corporations constituted a relatively 

small percentage of its overall revenues, and that these were placed in a segregated accowlf for 

FV 

a 

w 

PJ 

administrative purposes and not used to make electioneering communications under the Act. 

15. During the 2004 cycle, Swiftvets spent $1 9,304,642 for 12 television 

advertisements that were broadcast in the Presidential election battleground states of Colorado, 

Florida, Minnesota, Nevada, New Mexico, Ohio, Pennsylvania, Tennessee, Wisconsin, and West 

. Virginia, as well as in the District of Columbia and on national cable television stations, such as 

' CNN and the History Channel. All of these advertisements attacked the character, qualifications, 

and fitness for office of Senator John Kerry, the Democratic Presidential nominee. Excerpts 

fi-om several of these advertisements include: 
Even before Jane Fonda went to Hanoi to meet with the enemy and 

mock America, John Kerry secretly met with enemy leaders in 

Paris. 

... 

Eventually, Jane Fonda apologized for her activities, but John 

Kerry refbses to. 

Anv Questions? 

John Kerry has not been honest. 

And he lacks the capacity to lead. 

When the chips are down, you could not count on John Keny. 

... .- 

I served with John Keny . . . John Kerry cannot be trusted. 

Why? 

How can you expect our sons and daughters to follow you, when 

you condemned chis fathers and grandfathers? 

Why is this relevant? 

Because character and honor matter. Especially in a time of war. 

John Kerry cannot be trusted. 

Never Forget (aMa Other Hand) 

John Kerry gave aide [sic] and coilifort to the enemy by advocating 

their negotiating points to our government. 

Why is it relevant? Because John Kerry is asking us to trust him. 

I will never forget John Kerry’s testimony. If we couldn’t trust 

John Kerry then, how could we possibly trust him now? ’ 

In a time of war, can America trust a man who betrayed his 

country? 
Medals 

Symbols. They represent the best things about America. 

Freedom ... Valor ... Sacrifice. 

Symbols, like the heroes they represent, are meant to be respected. 

Some didn’t share that respect . . . and tumed their backs on their 

brothers. 

... 

How can the man who renounced his countries [sic] symbols now 

be trusted? 

16. Swiftvets also spent $1,120,881.09 for mailers sent to households in 

Presidential election battleground states. The first mailer accused Senator Keny of 

“dishonoring” and “demoralizing” his fellow soldiers and of “aiding and abetting the enemy’ by 

secretly meeting with North Vietnamese officials, and concluded, , 

Why is John Keny’s Betrayal Relevant Today? Because character 

and trust are essential to leadership, especially in a time of war. A 

man who so grossly distorts his military record, who betrays his 

fellow soldiers, who endangers our soldiers and sailors held 

captive, who secretly conspires with the enemy, who so brazenly , 

mocks the symbols of sacrifice of our servicemen ... all for his 

own personal political goals ... has neither the character nor the 

trust for such leadership. JOHN KERRY CANNOT BE 

TRUSTED. If we couldn’t trust John Keny then, how could we 

possibly trust him now? 

The second mailer listed “Four reasons why John Kerry is unfit for command,” claiming Kerry 

(1) “lied to the American people about his service record in Vietnam,” (2) “betrayed his fellow 

soldiers when he charged them with war crimes,” (3) “lost the respect of the men he served with 

by throwing away his medals - America’s symbols of valor and sacrifice,” and (4) “betrayed 

America by assisting North Vietnamese Communists and extreme leftist radicals.” This mailer 
concluded by stating, “We’re not debating Vietnam, it’s about John Kerry’s character, he 

betrayed us in the past, how do we know he won’t do it again?” 

17. Swiftvets spent $39,140.91 for a newspaper advertisement in the St. Louis 

Post Dispatch for a two-day period coinciding with the 2004 Presidential debate held in St. 

I 

Louis, Missouri. This advertisement features photographs of Kerry and Jane Fonda, and, after 

raising questions about Kerry’s postwar activities, the advertisement asks in bold type ‘WHY IS 

I. 

THIS RELEVANT? Because in a time of War - America needs a man that can be trusted to 

make the right decisions. JOHN KERRY CANNOT BE TRUSTED.” 

S wi ftVets’ Contributions 

18. The Commission concludes that language used in various Swiftvets 

fundraising solicitations that made reference to Senator Kerry’s 2004 Presidential campaign 

clearly indicated that the funds received would be targeted for the defeat of Senator Kerry. 

Swiftvets contends that its solicitations indicated that the funds would be utilized to discuss John 

Kerry’s conduct in and statements about the Vietnam War and those who fought in it, and to 

respond to his statements about these issues in order to present an accurate record. 

19. Swiftvets made a direct mail solicitation to potential donors in September 

and October 2004, which stated, 

[W]e plan to make sure every American is aware of how John 

Kerry is misrepresenting his record and ours in Vie ham... ... and to 

demonstrate whv he is clearlv unfit for command. ... The truth is 

that the man whose entire Presidential campaign is based on his 

experience in Vietnam, used highly suspicious personal injuries to 

cut his tour of duty to a mere four months.. .. All of this makes it 

clear to us that Mr. Kerry is clearly unfit for command of the 

armed forces of the United States! ... [Nlow that a key creator of 

that poisonous image - John Kern - is seeking to be Commanderin-Chief of the United States we have resolved to end our silence 
and set the record straight. Your gift will help us do that by 

ensuring our message stays on TV. 

Swiftvets received total income of $2,020,286.1 0 in response to three mailings of this 

solicitation, netting $1,489,683.89. 

20. Swiftvets also made e-mail and Internet fundraising solicitations. One 

I such e-mail solicitation, dated September 8,2004, stated, 

I would like to extend my sincere and personal gratitude for your 

generous contribution to Swift Boat Veterans for Truth. I ani sure 

you have seen the impact your contribution has had on the public 

discussion surrounding Senator Kerry’s fitness for duties as 

Commander-in-Chief. .. John Kerry’s campaign - aided by a 

sympathetic media - has responded to our work by evading our 

criticisms and turning up the volume on their attacks.. . You have 

already done so much, but I’m here now to ask you to help once 

more. We are at a critical point in this effort and we must keep our 

ads - including some new ones which I think you’ll really 

appreciate - on the airwaves in key battleground states. We are up 

against the big guns, and we now need to make sure they can’t 

drown us out. .. You can lend us a hand, as well, by passing this 

information on to other fkiends you think might be interested in 

helping us tell the true story of John Kerry. 

SwiftVets’ Third Quarter 2004 Report to the IRS includes approximately 509 contributions to 

Swiftvets on September 8,2004, and approximately 554 contributions to Swiftvets on 

September 9,2004. These contributions totaled substantially more than $1,000. 

I 

21. The Commission concludes that all fhds received in response to various 

solicitations, including those set forth above, constituted contributions under the Act, that 

Swiftvets received more than $1,000 in contributions by no later than May 2004, and that 

Swiftvets accepted more than $12.5 million in individual contributions in excess of the $5,000 

limit and $7 1 5,050 in prohibited corporate contributions. See 2 U.S.C. 0 43 1 (4)(A). 
22. Swiftvets contends that it made all of its fundraising communications with 

the good faith belief that they did not constitute solicitations for contributions under 2 U.S.C. 8 

43 1 (8)(A)(i). 

SwiftVets’ Expenditures 

23. The Commission concludes that Swiftvets made more than $1,000 in 

, expenditures for fbndraising communications and communications to the general public that 

expressly advocated the defeat of a dearly identified federal candidate, Senator John Keny. 

Swiftvets contends that these communications sought to discuss John Kerry’s conduct in and 

statements about the Vietnam War and those who fought in it. 

24. The Commission concludes that SwiftVets’ fundraising letters 

unmistakably exhort the recipients to contribute funds to prevent Keny fiom becoming President. 

In one hdraising appeal, Swiftvets stated, 

All of this makes it clear to us that Mr. Kerry is clearly unfit for 

command of the armed forces of the United States! ... Which is 

why I have sent you this letter. And why I hope I can count on you 

to send back a special gift of $25, $35, $50, $75, $100 or more to 

Swift Boat Veterans for Truth. 

The Commission concludes that Swiftvets fundraising communications, such as the example ’ 

above, constitute express advocacy under 11 C.F.R. 0 100.22(a) because it references an election 

and specific candidates, and it advocates action - in this case contributing hds - designed to 

lead to the candidate’s defeat in the election. The Commission concludes that costs associated 

with the various fbndraising appeals that contained express advocacy exceeded $1,000. 

25. Swiftvets spent $9,477,999 on five television advertisements, “Any 

I Questions,” “Why?” “Never Forget (aMa Other Hand),” “Friends,” and “Medals,” that the 

Commission concludes expressly advocated the defeat of Senator John Kerry. The television 
advertisements were broadcast shortly before the 2004 Presidential Election, explicitly challenge 

Senator Kerry’s “capacity to lead,” assert that he cannot be “trusted,” and ask why citizens 

should be willing to “follow” him as a leader. The Commission concludes that, speaking to 

voters in this context, the advertisements unambiguously refer to Senator Kerry as a Presidential 

candidate by discussing his character, fitness for office, and capacity to lead, and have no other 

reasonable meaning than to encourage actions to defeat him. See 11 C.F.R. 0 100.22(b); 

Explanation and Justifzcation, 60 Fed. Reg. at 35,295. I 

26. Swiftvets spent $1,120,881.09 for two mailers that the Commission 

concludes expressly advocated John Kerry’s defeat in the 2004 election. Both mailers comment 

on Kerry’s character, qualifications and accomplishments and the Commission concludes that, in 

context, they have no other reasonable meaning than to encourage actions to defeat Senator 

Kerry. Senator Kerry, the recipient is told, lacks an essential requirement to lead in a time of war 

,- he “cannot be trusted” and is “unfit for command.” Thus, the Commission concludes that the 

only manner in which the reader can act on the message that ‘‘Kerry cannot be trusted” is to vote 

against him in the upcoming election. See 11 C.F.R. 5 100.22(b). 

27. Swiftvets paid $39,140.91 to place a newspaper advertisement in the St. 

Louis Post Dispatch. The ad featured photos of John Kerry and Jane Fonda, raised questions 

about Kerry’s “betrayal,” and asked in bold type, “WHY IS THIS RELEVANT? Because in a 

time of War - America needs a man that can be trusted to make the right decisions. JOHN 

KERRY CANNOT BE TRUSTED.” The Commission concludes that, here, the “man” that 

‘‘America needs” “in a time of war” can only mean “the President,” and the reader is to 

understand that Keny cannot be trusted to make the right decisions as the country’s president in a 

time of war. The Commission concludes that thc only action a voter exposed to this 
advertisement could take to ensure that America gets a "man that can be trusted to make the right 

decisions" is to vote against Kerry. 

28. 

1 

The Commission concludes that all of these communications comment on 

Senator Kerry's character, qualifications, and fitness for office, explicitly link those charges to 

his status as a candidate for President, and have no other reasonable meaning than to encourage 

actions to defeat Senator Kerry. Therefore, because the Commission concludes that the 

communications are "unmistakable, unambiguous, and suggestive of only one meaning" and 

because reasonable minds cannot differ that the communications urge Kerry's defeat, the 

Commission concludes that they are express advocacy as defined at 11 C.F.R. # 100.22@). 

Accordingly, the Commission concludes that Swiftvets made expenditures in excess of $1,000, 

surpassing the statutory threshold for political committee status. See 2 U.S.C. # 43 1(4)(A). 

29. The Commission states that in the thirty years since the enactment of the 

relevant provisions of the Act and the Supreme Court's decision in BuckZey, see supra paras. 

IV. 1-6, the definition of express advocacy and the prerequisites for political committee status 

have been addressed in Supreme Courtland lower court opinions, Commission regulations, 

advisory opinions, and enforcement actions. This includes the "major purpose" test, which 

serves as a constitutional limit in determining whether an organization is a political committee. 

The Commission states that it has been applying these principles for many years, and it will 

continue to do so in the fbture. See Explanation and Justification, 69 Fed. Reg. 68,056,68,065 

(Nov. 23,2004). 

30. Notwithstanding the foregoing pqmph 29, Swiftvets contends that their 

referenced communications we= intended to respond to statements by John Keny on the issue of 

his conduct in, and his statements about, the Vietnam War and those who fought in it. Swiftvets 
further maintains that it made all of its communications with the good faith belief that the 

communications did not contain express advocacy or constitute expendisures under 2 U.S.C 5 

431(9)(A)($ and that its expenditures were properly and in good faith publicly disclosed under 

IRC 5 527. me the Commission disagrees with its reasoning, SwhVets contends that it was 

uncertain as to the continued validity and application of the alternative express advocacy test set 

forth in 11 CF.R 5 100.22(b) because of: (1) SwhVets’ undeatandhg of the Fitst and Fourth 

circuit court decisions holdq 11 CF.R 9 10022(b) unconstkutional; (2) SwiftVets’ understanding 

of the Commission’s history of not relying on 11 CF.R 5 100.22(b) in recent enforcement matters; 

I (3) SwiftVets’ undeatandrng of the division on the Commission in voting whether to initiate a 

rulemaking to revise or repeal 11 CFR 5 IOOZ(b); and (4) SwiftVets’ understanding of the 

Commission’s decision in 2004 not to issue specific regulation reh the political committee 

’ status of 527 organizations whose major purpose was the nomination or election of Feded 

candidates (May 13,2004, and its September 27,2001 decision to hold in abeyance a rulemaking to 

revise the definition of “expendim” and to promulgate a definition for the “major puxpose” test. 

SwiftVets’ Maior Pumose 

3 1. The Commission concludes that SwifiVets’ statements and activities 

demonstrate that its major purpose was to defeat John Keny. See Paragraphs IV.12-IV.30. 

Swiftvets contends that its purpose was to discuss John Kerry’s conduct in, and statements about 

their service in, the Vietnam War and what they believed to be a more accurate record of this 

I issue. 

32. In a document distributed to a limited number of prospective donors by a 

, Swiftvets findraiser, Swiftvets stated, 

GOAL 

Prevent John Kerry from becoming Commander-in-Chief.. .. 
STRATEGY 

Dramatize for key elements of the American public what Kerry did 

and why he is unfit to be Commander-in-Chief.. . . 

TACTICS 

Train, equip and deploy the Swift Boat Vets who can speak with 

unique credibility.. . . We Will Conduct Such- An Aggressive, 

Passionate Effort That Tibe American People Will Reject John 

Kerry As A Liar And A Fraud .... 

FUNDING 

Large gifts: the Swift Boat vets ability to reach the American 

people depends on large gifts fiom individuals who understand the 

potent message they carry and why John Kerry must be stopped ’ 

fiom being Commaqder-in-Chief.. . 

33. In addition, Swiftvets made other statements that the Commission 

concludes establish that its major purpose was to defeat John Kerry. For example, during the 

2004 election, its website showed a picture of Kerry and stated, “[Olf the 19 veterans pictured 

with Kerry, only THREE actually support him for president. 12 now state that Kerry is ‘UNFIT 

to be Commander-in-Chief.’” Also, a letter signed by the Chairman of Swiftvets thanking a 

large donor for a $100,000 contribution stated, 

We will do our utmost tomsure this timely donation will be 

expended directly and prudently in our quest to derail Senator 

Kerry’s well organized and funded campaign to become the 

Commander in Chief of the United States Armed Forces. We are 

adamantly opposed to the political self serving ambitions of this 0 

man who betrayed us in 1971. 

Finally, On August 6,2004, a Steering Committee member was asked on a news program 

whether SwiftVets’ advertisements were produced and made to influence the Presidential 

election and responded, “Yes, of course.” 

34. In its fundraising solicitations, Swiftvets referred repeatedly to efforts to 

demonstrate that John Kerry is “unfit to be Commander-in-Chief of the United States” through 

advertisements targeted to battleground states. Consistent with these statements, the fhds 
donated to Swiftvets paid for advertisements and direct mail pieces that were focused on states 

such as Ohio, Pennsylvania, Florida, Nevada, New Mexico, Colorado, Minnesota, West Virginia, 

Wisconsin and Tennessee. Swiftvets contends that it targeted these states because it believed 

people were paying the closest attention to John Kerry's conduct in, and statements about, the 

Vietnam War and those who fought in it. 

35. Swiftvets spent $20,464,664, or approximately 91 percent of its reported 

disbursements, on television and print advertisements and direct mail pieces attacking Senator 

John Keny or expressly advocating his defeat. 

36. Since the 2004 election, SwifiVets has effectively ceased active 

operations. It has added no new content to its website, no longer solicits contributions, and has 

limited its disbursements primarily to legal and administrative costs, as well as charitable 

contributions to vet eran-re1 ated charities. 

37. SwiAVets contends that it operated under the good faith belief that it had 

not triggered political committee status in 2004, and that it fulfilled the applicable regulatory 

requirements via public disclosure to the IRS of its overall receipts and disbursements under 

I.R.C. 0 527, and contemporaneous disclosure to the Commission of its electioneering 

. communications. Indeed, the Commission has never alleged that the Swiftvets acted in knowing 

defiance of the law, or with the conscious recognition that their actions were prohibited by law, 

made no findings or conclusions that there were any knowing and willful violations of the law in 

connection with this matter, and, thus, does not challenge SwiftVets' assertion of its good faith 

reliance on its understanding of the law. 

' 

' 

V. Solely for the purpose of settling this matter expeditiously and avoiding litigation, 

without admission with respect to any other proceeding, and with no finding of probable cause by 
the Commission, Swiftvets agrees not to contest the Commission's conclusions, as stated herein, 

that it violated 2 U.S.C. 50 433,434,441a(f), and 441b(a) of the Act by failing to register and 

report as a political committee with the Commission, by knowingly accepting individual 

contributions in excess of $5,000, and by knowingly accepting corporate contributions. 

VI. SwifiVets states that, upon completing its obligations under this Agreement, it 

intends to cease operations as an IRC Section 52s organization and to donate the remainder of its 

hds to a charity supporting the families of U.S. servicemen and servicewomen killed or 

wounded in the War in Iraq. Pursuant to this Agreement, Swiftvets agrees to do the following: 

1. Swiftvets will pay a civil penalty to the Federal Election Commission in 

the amount of $299,500 pursuant to 2 U.S.C. 0 437g(a)(5)(A). 

2. Swiftvets will cease and desist fiom violating 2 U.S.C. $8 433 and 434 by 

failing to register and report as a political committee, and will cease and desist from violating 2 

U.S.C. 0 441(a)(f) by accepting individual contributions in excess of the limits set forth in the 

Act. SwifiVets states that it has no present intention to accept contributions or to make 

expenditures as defined by the Act, and will register and report to the Commission if it should 

engage in activities that the Commission has concluded would trigger Federal political 

committee status in connection with fbture elections. ' 

3. Swiftvets will submit to the FEC copies of its Form 8872 reports 

previously filed with the Internal Revenue Service for activities fkom Januaq 1,2004 until 

December 3 1,2004, supplemented with the additional information that Federal political 

committees are required to include on page 2 of the Summary Page of Receipts and 

Disbursements of FEC Form 3X. 
VII. The Commission, on request of anyone filing a complaint under 2 U.S.C. 5 ' 

437g(a)(l) concerning the matters at issue herein or on its own motion, may review compliance 

with this agreement. If the Commission believes that this agreement or any requirement thereof 

' has been violated, it may institute a civil action for relief in the United States District Court for 

the District of Columbia. 

, VIII. This agreement shall become effective as of the date that all parties hereto have 

executed same and the Commission has approved the entire agreement. 

IX. Respondent 'shall have no more than 30 days fiom the date this agreement 

becomes effective to comply with and implement the requirements contained in this agreement 

, and to so notifj' the Commission. 

X. This Conciliation Agreement constitutes the entire agreement between the parties 

on the matters raised herein, and no other statement, promise, or agreement, either written or 

oral, made by either party or by agents of either party, that is not contained in this written 

agreement shall be enforceable. 

I 
FOR THE COMMISSION: 

Lawrence H. Norton 

General Counsel 

Associate General Counsel 

for Enforcement 

FOR THE RESPONDENT: 

Date 

W 
FEC EXHIBIT 4 
e 

~‘~~fS%r PH 12: 38 BEFORE THE FEDERAL ELECTION CO 

In the Matter of 

The Media Fund 

MUR 5440 

CONCILIATION AGREEMENT 

This matter was initiated by three signed, sworn, and notarized complaints.” The Federal 

Election Commission (“Commission”) found probable cause to believe that The Media Fund 

(“TMF” or “Respondent”) violated 2 U.S.C. §§ 433,434,441a(f), and 441b(a), provisions of the 

Federal Election Campaign Act of 197 1, as amended (“the Act”), by failing to register as a 

political. committee with the Commission, by failing to report contributions and expenditures, 

by knowingly accepting individual contributions in excess of $5,000, and by knowingly 

accepting corporate and/or union contributions. 

NOW, THEREFORE, the Commission and the Respondent, having duly entered into 

conciliation pursuant to 2 U.S.C. 5 437g(a)(4)(A)(i), do hereby agree as follows: 

I. The Commission has jurisdiction over the Respondent and the subject matter of 

this proceeding. 

11. Respondent has had a reasonable opportunity to demonstrate that no action should 

be taken in this matter. 

111. 

IV. 

Respondent enters voluntarily into this agreement with the Commission. h) e== 

d 

0 

c7 The pertinent facts in this matter are as follows: 4 

N 

10 

T3 

~ 

The Commission merged allegations as to The Media Fund from MUKs 5403 and 5427 into MUR 5440. 
e” 

MUR 5440 (The’Media Fund) 

Conciliation Agreement 

Applicable Law , , 

1.. The Act defines a political committee as “any committee, club, 

association, or other group of persons which receives contributions aggregating in excess of 

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

during a calendar year.” 2 U.S.C. 5 43 1 (4)(A). 

2. The Act defines the term “contribution” as including “anything of value 

made by any person for the purpose of influencing any election for Federal ofice.’’ 2 U.S.C. 

9 431(8)(A)(i); see also FEC v. Survival Education Fund, Inc., 65 F.3d 285,295 (2d’Cir. 1995) 

(where a statement in a solicitation “leaves no doubt that the fhds contributed would be used to 

advocate [a candidate’s election or] defeat at the polls, not simply to criticize ‘his policies during 

the election year,” proceeds from that solicitation are contributions). ’ 

3. The Act defines the term “expenditure” as including “anything of value . . . 

made by any person for the purpose of influencing any election for Federal office.” 2 U.S.C. 

4. ’ Under the Commission’s regulations, a communication contains express 

advocacy when it uses phrases such as “vote for the President,” “re-elect your Congressm.an,” or .. . 

“Smith for Congress,” or uses campaign slogans or words that in context have no other 

reasonable meaning than to urge the election or defeat of one or more clearly identified 

candidates, such as posters, bumper stickers, or advertisements that say, “Nixon’s the One,”. 

“Carter ‘76,” “ReagadBush,” or “Mondale!” See 11 C.F.R. 6 100.22(a); see also FEC v. 

Massachusetts Citizens for Life, 479 U.S. 238,249 (1 986) (“MCFL”) (“[The publication] 

provides in effect an explicit directive: vote for these (named) candidates. The fact that this 

2 
MUR 5440 (The Media Fund) 

Conciliation Agreement ‘ 

message is marginally less direct than “Vote for Smith” does not change its’essential nature.”). 

Courts have’held that “express advocacy also includes verbs that exhort one to campaign for, or 

contribute to, a clearly identified candidate.” F’C v. Christian Coalition, 52 F.Supp. 2d 45,62 

(D.D.C. 1999) (explaining why Buckley v. Valeo, 424 U.S. 1,44, n.52 (1976), included the word 

“support,” in addition to “vote for’’ or “elect,” on its list of examples of express advocacy 

@ communication). 

Ltn 

5. The Commission’s regulations Mer provide that express advocacy also 

includes communications containing an “electoral portion” that is “unmistakable, unambiguous, 

and suggestive of only one meaning” and about which “[r]easonable minds could not differ as to 

whether it encourages actions to elect or defeat” a candidate when taken as a whole and with 

W-1 

d 

e3 

y-a 

‘IS$ 

v 

cy1 

P‘.. 

c-4 

limited reference to external events, such as the proximity to the election. 11 C.F.R. 6 100.22(b). 

“Communications discussing or commenting on a candidate’s character, qualifications or 

accomplishments are considered express advocacy under . . . section 100.22(b) if, in context, they 

have no other reasonable meaning than to encourage actions to elect or defeat the candidate in 

question.” Express Advocacy; Independent Expenditures; Corporate and Labor Organization 

Expenditures, 60 Fed. Reg. 35,292,35,295 (July 6, 1995). 

6. The Supreme Court has held that ‘‘[t]o hlfill the purposes of the Act” and 

avoid “reach[ing] groups engaged purely in issue discussion,” only organizations whose major 

purpose is campaign activity can be considered political committees under the Act. See, e.g., 

Buckley, 424 U.S. at 79; MCFL, 479 U.S. at 262. It is well-settled that an organization can 

satisfjl Buckley ’s “major purpose” test through sufficient spending on campaign activity. MCFL, ’ 

479 U.S. at 262-4; see also Richey v. Tyson, 120 F. Supp. 2d’ 1298, 13 10 n.11 (S.D. Ala. 2002). 

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An organization’s ‘‘major purpose” may also be established through public statements of 

purpose. See, e.g., FEC v. Mulenick, 3 10 F. Supp. 2d 230,234-36. (D.D.C. 2004), rev ’d in part 

on other grounds, on.reconsiderution, 2005 WL 588222 (D.D.C. Mar. 7,2005); FEC v. GOPAC, 

917 F. Supp. 851,859 (D.D.C. 1996). 

7. . The Act requires all political committees to register with the Commission 

and file a statement of organization within ten days of becoming a political committee, including 

the,ngne, address, and type of committee; the name, address, relationship, and type of any 

connected organization or affiliated committee; the name, address, and position of the custodian 

of books and accounts of the committee; the name and address of the treasurer of the committee; 

and a listing of all banks, safety deposit boxes, or other depositories used by the committee. See 

2 U.S.C. 6 433. 

8. Each treasurer of a political committee shall file periodic reports of the 

committee’s receipts and disbursements with the Commission. See 2 U.S.C. .$434(a)(1). In the . 

case of committees that are not authorized committees of a candidate for Federal office, these 

reports shall include, inter alia, the amount of cash on hand at the beginning of the reporting 

period, see 2 U.S.C. 5 434(b)( 1); the total amounts of the committee’s receipts for the reporting 

period and for the calendar year to date, see 2 U.S.C. 6 434@)(2); and the total amounts of the 

committee’s disbursements for the reporting period and the calendar year to date. See 2 U.S.C. 

9. The Act states that no person shall make contributions to any political 

committee that, in the aggregate, exceed $5,000 in any calendar year, with an exception for 

political committees established and maintained by a state or national political party. See 

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2 U.S.C. $ 441a(a)(l)(C). Further, the Act states that no political committee shall knowingly 

accept any contribution in violation of the limitations imposed under this section. See 2 U.S.C. 

$ 441a(f). 

10. Pursuant to 2 U.S.C. $441 b(a), it is unlawful for any political committee 

knowingly to accept or receive, directly or indirectly, any contribution made in connection.with a 

federal election from a corporation or a labor organization. 

Factual Background 

1 1. TMF is an unincorporated entity organized ,underSection 527 of the 

Internal Revenue Code. TMF filed its Notice of 527 Status with the Internal Revenue3ervice on 

November 5,2003. .. . 

12. 

13. 

TMF has not registered as a political committee with the, Commission. 

From its inception through 2004, TMF raised $59,414,183. While TMF 

received substantial sums from small individual donors, approximately 93% of its receipts during 

that time period- over $55 million - came from labor organizations (or corporations) and 

individuals who gave in amounts that exceeded the $5,000 limit established.under the Act for 

contributions to political committees. 

14. TMF received the majority of its funds ($44,475,000) through a joint 

fundraising committee, Joint Victory Campaign 2004 (“JVC”), in which TMF and America 

Coming Together participated. JVC received contributions from individuals in excess of $5,000 

and it also received labor and corporate contributions. The Commission determined that 

approximately 85% of the funds that JVC transferred to TMF were in excess of $5,000 and 6% 

of those funds were from corporate and labor sources. 

I 

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15. TMF disbursed $57,637,115 from its inception through 2004. TMF spent 

approximately $53,389,856 - or more than 92% of its reported disbursements during that time 

period - on 37 television advertisements, 24 radio advertisements, nine newspaper 

advertisements, and 20 mailers that reference President George Bush or Senator John Kerry in 

the context of the 2004 Presidential election. TMF broadcast or disseminated some of these 

communications in “battleground states,” including Florida, Missouri, Nevada, New Hampshire, 

Ohio, Pennsylvania, Wisconsin, and West Virginia. 

16, TMF contends that its 2004 activities consisted of issue advocacy relating 

to the 2004 election cycle. TMF’s communications centered on pertinent social and public 

policy issues, such as the economy, unemployment, poverty, education, health care; prescription 

drugs, government special interests and he1 prices. .. 

17. According to IRS reports and electioneering communications reported 

filed with the Commission, from January 1,2005 through December 3’1,2006, TMF raised 

$1,020,000 and spent $1,985,044. 

TMF’s Contributions 

18. The Commission concludes that the language used in fhdraising 

solicitations sent by TMF or its joint fundraising committee,. JVC, preceding the 2004 election 

clearly indicated that the funds received would be targeted to the election or defeat of a specific 

federal candidate. TMF contends that its solicitations indicated that the hds would be utilized 

to fbrther the national discussion of issues relevant to the 2004 election cycle. 

19. Some TMF solicitations to potential donors made it clear that the funds 

received would be used to sponsor advertisements depicting George Bush in “battleground 

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states” that would decide the upcoming presidential election. TMF touted its ongoing advertising . 

campaigns as the basis for polls reflecting decreased public support for George Bush in these 

“battleground states.” 

20. TMF’s former president, Harold Ickes, made direct solicitations to donors, 

most of which were made from joint fbndraising solicitations with America Coming Together 

(that had a federally registered political committee). Some solicitations included slides 

containing messages such as “Bush can be beaten,” “The Race for 270; The fight for the White 

House is a state-by-state battle,” “270 Electoral Votes (Evs) Needed to Win, and “17 Key States 

Will Decide the 2004 Election.” The presentation also outlined TMF’.s “1 7 state media plan” 

which was “[tlimed to counter Bush onslaught . . .” and indicated that TMF intended to 

“challenge Bush: trust, competence, economy, and other issues . . . .” 

2 1. In addition to the general efforts of TMF to raise funds, TMF made 

specific solicitations to certain individuals in which it highlighted the effectiveness of its ads, as 

well as its overall advertising efforts, in depressing public support for Bush and increasing public 

support for Kerry. For example, one solicitation noted that the polls “found Bush’s job 

performance among swing voters fall in the states where TMF was advertising” and stated that 

during this “critical” time period, “TMF and [its] allies made a significant impact ensuring a 

Democratic message was on the airwaves at competitive levels.” .. 

22. The Commission concludes that the fundraising efforts of JVC-premised . 

mainly on solicitations that only identified presidential candidates-also produced 

“contributions” to TMF. JVC began raising funds in November 2003, and one of its solicitation . 

documents explained “to’potential donors what The Media Fund was and the need for it and, 

. 

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ultimately the groundwork for asking them to support it financially.” This fhdraising document, 

. entitled “The Media Fund; Victory Campaign 2004; A Strategic Plan for Winning,” contains the 

following messages: “Without the aggregated resources of The Media Fund, the Democrats 

simply will not be competitive in this pre-convention period” and “1 7 states will decide who 

takes the oath of office for President in January 2005.” 

23. In response to specific solicitations fiom TMF’s former president, Harold 

Ickes, which, the Commission concludes, indicated that the hdsreceived would be targeted to 

the defeat of George Bush, certain.donors gave fhds to TMF through JVC as part of a 

fimdraising “challenge” where donors agreed to donate $20. million to TMF on the condition that 

a collection of labor organizations gave the same amount. For example, in a letter forwarded to 

potential donors, Mr. Ickes enclosed a polling report in that letter and noted that “the fact that 

Kerry is dead even with Bush in these [ 17 battleground states] and nowdeads with Independents 

by 7 points, after trailing Bush with them, speaks to the effectiveness of the combined paid media 

programs of TMF and AFL-CIO.” 

24. The Commission concludes that all funds received in response to these 

solicitations constituted contributions under the Act and caused TMF to surpass the $1,000 

statutory threshold by December 2003. See 2 U.S.C. 0 431(4)(A). TMF subsequently accepted . 

more than $46 million in individual contributions in excess of the $5,000 limit and more than $9 

million .. in labor or corporate contributions. .. 

25. TMF contends that it ‘made all its fundraising communications with the 

good faith belief that, they did not constitute solicitations for contributions under 2 U.S.C. 

.. .. 

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543 1 (8)(A)(i), and that FEC regulations allow joint ’fundraising between federal political 

committees and non-federal entities. 

TMF’s Expenditures 

26. The Commission concludes that TMF. expended more than $1,000 for 

certain communications to the general public that expressly ‘advocated the defeat of a clearly 

identified federal candidate, George Bush. These advertisements attacked the character, 

qualifications, and fitness for office of George Bush, or supported-the character, qualifications, 

and fitness for office of John Kerry. TMF contends that these communications sought, to discuss ’ 

pertinent social and policy issues relevant to the 2004 election cycle. .Examples of these 

.. . communications appear below. 

. 27. TMF spent more than $1,000 for the following mailers that depicted or 

.. referred to George Bush or John Kerry in the context of the 2004 election: 

The “Education Mailer” addresses rising college tuition costs and states in. 

boldtype: “John Kerry Wants Every Child To Be Able To Afford A College 

Education And Live The American Dream.” The accompanying text addresses 

John Kerry’s plan for the “American Dream,” declaring: “We need a President 

who encourages pursuit of the American Dream instead of dashing these hopes. 

John Kerry will make college affordable for every American.” 

. 

The “Health Care Mailer’.’ describes details of the Keny-Edwards’ health care plan 

and announces in large-font text: “Ge0rge.W. Bush and Dick Cheney have NO 

PLAN to lower health care costs.’’ The juxtaposition of the candidates’ health 

care initiatives is followed with the tagline: “For F1orida’s:Families. The Choice. 

is Clear.” 

The “Military Service Mailer” states, “These Men Could Have Served In 

Vietnam, But Didn’t’’ (next to pictures of George Bush and Dick.Cheney). The’ ad ’ 

references Kerry’s military service stating that it provides him a “unique 

perspective on decisions about sending our children into combat and caring for 

them when they return and whenthey retire.” The mailer links Kerry’s 30-year 

old military record to today’s events by stating: “Vietnam was a long time ago: 

Some say it’s not important now, while others must think it is.. . .” 

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28. TMF spent more than $1,000 on broadcast advertisements that depicted 

George Bush or John Kerry in the context of the 2004 election, an example of which includes the 

following text and imagery: 

“Stand Up” 

This 30-second television ad, features a screen image of Kerry accompanied by a 

voiceover stating, . .. 

Only a man who stands up to his government can truly lead. 

John Kerry fought and bled in the Vietnam War. He fought side by side with 

brothers who could not get out of the draft because they didn’t have a rich father 

like George W. Bush. 

The ad concludes with the statement: “You better wake up before you get taken out.” 

29. The Commission concludes that .all of these cpmmunications comment on 

G.eorge Bush’s character, qualifications, and fitness for office, explicitly link those charges to his 

status as a candidate for President, and have no other reasonable meaning than to encourage 

actions to defeat George Bush. Therefore, because the Commission concludes that the 

communications are “unmistakable, unambiguous, and suggestive of only one meaning” and 

because reasonable minds cannot differ that the communications urge Bush’s defeat, they are 

express advocacy as defined at 11 C.F.R. 5 100.22(b). 

30. Furthermore, the Commission concludes that one of these 

communications, the “Education Mailer’’ also contains express advocacy under 1 1 C.F.R. 

5 100.22(a) because it refers to the “need” for a particular kind of President, followed by 

identification of John Kerry as that type of candidate. 

.. 

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’ 3 1. As a result of these communications, the Commission concludes that TMF 

made expenditures in excess of the $1,000’ statutory threshold for political committee status. See 

2 U.S.C. $ 43 1 (4)(A). 

32. TMF contends that the communications described above centered upon 

important policy issues. TMF further contends that it made all of its communications with the 

good faith belief that the communications did not contain express advocacy or constitute 

expenditures under 2 U.S.C. 543 1(9)(A)(i), and that its expenditures were properly and in good 

, faith publicly disclosed under I.R.C. $527. TMF contends that it predicated this’belief on their 

understanding, informed by legal advice, of the legal definition and scope of “express advocacy” 

under Supreme Court and other appellate case law and the Commission’s regulatory and 

enforcement policies and practices regarding “express advocacy.” 

33. Furthermore, TMF contends that to the extent that its communications 

referred to a clearly identified federal candidate, it used only individual fbnds and filed 

.. 

electioneering reports with the Commission. 

TMF’s Major Pumose 

34. The Commission concludes that TMF’s statements and activities 

demonstrate that its major purpose was to elect John Kerry and defeat George Bush. From its 

inception, TMF presented itself to donors as a destination for “soft money” that the DNC no 

longer could accept, but which TMF could use to support the Democratic presidential nominee. 

TMF proclaimed that, “Under the new law, the DNC . . . will not be able to raise enough money : 

to pay for sufficient media in 2004 to make an impact. Without the aggregated resources of The ’ 

Media Fund, the Democrats simply will not be competitive in this pre-convention period.” 

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35. The Commission concludes that the focus of TMF was on running 

advertisements in the “1 7 key states” considered to be battleground states in the 2004 

Presidential election. TMF noted that these “17 states will decide who takes the oath of ofice 

for President in January 2005.” It argued that 

The key to winning enough of these 17 battleground states will be the turnout of 

Democratic base constituencies . . . and, very importantly, the ability to identifl the 

key swing votes who are open to persuasion to vote Democratic. Figuring out the 

effective issue messages that will move these swing votes [sic] and delivering 

those messages between March and late August, before the race is defined by the 

Bush campaign, is critical to the outcome of the 2004 race. 

TMF’s findraising presentations explicitly cited the goal of reaching “270 electoral votes” for 

the Democratic Presidential nominee. 

36. The Commission concludes that TMF’s communications to the public 

fbrther establish its major purpose of federal campaign activity-specifically the defeat of 

George Bush. The vast majority of TMF’s advertisements-34 out of 36 television .. 

advertisements, 20 out of 24 radio advertisements, and 26 out of 29 print advertisementsmention either George Bush or John Kerry. Moreover, not one of TMF’s advertisements 

mentions any candidates other than the presidential and vice-presidential contenders in the 2004 

general election. TMF’ s self-proclaimed goal in producing and running these advertisements 

was to decrease public support for Bush and to increase public support for Kerry. 

I 

37. TMF contends that it operated under a good faith belief that it had not 

triggered political committee status. The Commission has never alleged that TMF acted in 

knowing defiance of the law, or with the conscious recognition that its actions were prohibited by 

law, made no findings or conclusions that there.were knowing and willful violations of the law in 

12 

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connection with this matter and, thus, does not challenge TMF’s. assertion of their good faith 

. .. reliance on their understanding of the law. .- 

V. Solely for the purpose of settling this matter and avoiding litigation costs, without 

admitting or denying each specific basis for the Commission’s findings above, Respondent 

.. agrees not to contest the Commission’s conclusion that Respondent violated the Act in the . . 

.. 

. .. .. .. ’ following ways: 

1. TMF violated 2 U.S.C. $6 433 and 434 by failing to register and report as 

a political committee. 

2. ‘TMF violated 2 U.S.C. 0 441a(f) by knowingly accepting contributions in 

excess of $5,000 and 2 U.S.C. 6 441 b(a) by knowingly accepting labor or corporate 

contributions. 

VI. Respondent will cease and desist from violating 2 U.S.C. $5 433 and 434 by 

failing to register and report as a political committee. Respondents will cease and desist from .. 

violating 2 U.S.C. $5 441a(f) and 441b(a) by accepting contributions in excess of the limits as set 

forth in the Act or from prohibited sources. Respondent will provide an executed copy of this 

agreement to each of its current and former officers, principals, agents, representatives, 

successors, and assigns, and certify in writing to the Commission that it has complied with this 

requirement, including identifying each individual that Respondent has provided with an 

executed copy of the Agreement. 

.. 

I .. .. 

. .. 

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VII. Respondent will pay a civil penalty to the Federal Election Commission in the 

amount of Five Hundred and Eighty Thousand Dollars ($580,000), pursuant to 2 U.S.C. 

9 437g(a)(5)(A)* 

' VIII. Respondent will register with the Commission as a political committee. TMF will 

submit to the FEC copies of its Form 8872 reports previously filed with the Internal Revenue 

Service for activities from January 1,2004 through the present, supplemented with the additional 

information that Federal political committees are required to include on page 2 of the Summary 

Page of Receipts and Disbursements of FEC Form 3X. 

IX. The Commission, on request of anyone filing a complaint under 2 U.S.C. 

6 437g(a)( 1) concerning the matters at issue herein or on its own motion, may review compliance 

with this agreement. If the Commission believes that this agreement or any requirement thereof 

has been violated, it may institute a civil action for relief in the United States District Court for 

the District of Columbia.. 

X. This agreement resolves all matters that relate to the activities of The Media Fund 

arising from MUR 5440 and, except as provided in Section IX of the agreement, no further 

inquiry or action will be taken by the FEC regarding the matters described herein. 

XI. This agreement shall become effective as of the date that all parties hereto have. 

executed same and the Commission has approved the entire agreement. 

XII. Respondent shall have no more than 30 days from the date this agreement 

becomes effective to comply with and implement the requirements contained in this agreement 

and to so notify the Commission. 

. ' 

, 

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'a 

XIII. This Conciliation Agreement constitutes the entire agreement between the parties 

on the matters raised. herein, and no other statement, promise, or agreement, either written or 

oral, made by either party or by agents of either party, that is not contained in this written 

agreement shall be enforceable. 

.. . .. .. ._ 

.. 

.. . .. 

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FOR THE COMMISSION: 

Thomasenia P. Duncan 

General Counsel 

BY: 

Ann Marie Terzaken 

htmg Associate General Counsel 

for Enforcement 

FOR THE RESPONDENT: 

L yrhtrecht 

Counsel 

-I 

Date 

/4/al/o7 , 

Date 

16 
FEC EXHIBIT 5