RECORD NOS. 08-5223(L), 09-5342 

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ORAL ARGUMENT HAS BEEN SCHEDULED FOR JANUARY 27, 2010 

In The 

United States Court of Appeals 

For The District of Columbia Circuit 

SPEECHNOW.ORG; DAVID KEATING; 

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

BRAD RUSSO; SCOTT BURKHARDT, 

 Plaintiffs - Appellants, 

v. 

FEDERAL ELECTION COMMISSION, 

 Defendant - Appellee. 

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA

 

BRIEF OF APPELLANTS 

William H. Mellor Stephen M. Hoersting 

*Steven M. Simpson Bradley A. Smith 

Robert W. Gall CENTER FOR COMPETITIVE POLITICS 

Robert P. Frommer 124 West Street, South, Suite 201 

Paul M. Sherman Alexandria, Virginia 22314 

INSTITUTE FOR JUSTICE (703) 894-6800 

901 North Glebe Road, Suite 900 

Arlington, Virginia 22203 

(703) 682-9320 

Counsel for Appellants Counsel for Appellants 

November 16, 2009 

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CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES

A. Parties & Amici. 

The parties in the District Court were Plaintiffs SpeechNow.org, David 

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

Burkhardt; and Defendant Federal Election Commission. All parties, with the 

exception of SpeechNow.org, are parties before this Court’s consideration of 

Plaintiffs’ certified questions of law. 

Amici below for the Defendant were the Campaign Legal Center and 

Democracy 21, who are also amici for Defendant before this Court. 

Amici for Plaintiffs before this Court are the Alliance for Justice, the Family 

Research Council Action, the Concerned Women for America Legislative Action 

Fund, the Kansas Policy Institute, the Mackinac Center for Public Policy, the 

Caesar Rodney Institute, FreedomWorks Foundation, the James Madison Institute, 

the Public Interest Institute, and the Commonwealth Foundation for Public Policy 

Alternatives. 

B. Rulings Under Review. 

The rulings and orders relevant to these proceedings under 2 U.S.C. § 437h 

are the District Court’s Memorandum Order issued July 29, 2008, and the findings 

of fact and certified questions the District Court issued on October 7, 2009. The 

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certified questions for review by this Court are set forth both under the Plaintiffs’ 

Statement of Issues and in the Joint Appendix at pp. 372-399. 

C. Related Cases. 

This Court has consolidated the instant action with case no. 08-5223, 

Plaintiffs’ appeal of the District Court’s denial of their Motion for Preliminary 

Injunction. While briefing in no. 08-5223 is complete, neither case has previously 

been before this or any other court apart from the original proceeding in the 

District Court. 

CORPORATE DISCLOSURE STATEMENT 

Plaintiff SpeechNow.org, a party to case no. 08-5223, is an unincorporated 

association organized under the District of Columbia Uniform Unincorporated 

Nonprofit Associations Act, D.C. Code § 29-971.01-.15. SpeechNow.org has no 

parent company and there is no publicly held company that has a 10% or greater 

ownership interest in SpeechNow.org. No member of SpeechNow.org has issued 

shares or debt securities to the public. 

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TABLE OF CONTENTS 

Page

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

CORPORATE DISCLOSURE STATEMENT ........................................................ ii 

TABLE OF CONTENTS ......................................................................................... iii 

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

GLOSSARY ............................................................................................................ xii 

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

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

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

STATEMENT OF THE CASE .................................................................................. 3 

INTRODUCTION ..................................................................................................... 4 

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

I. Structure and Operations of SpeechNow.org ........................................ 6

II. SpeechNow.org’s Planned Activities .................................................... 9

III. The Application of the Federal Election Campaign Act to 

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

A. Contribution Limits ................................................................... 12

B. Administrative, Organizational, and Continuous-Reporting 

Requirements for Political Committees .................................... 13

1. Registering a Political Committee .................................. 13

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2. Operating a Political Committee .................................... 14

a. Recordkeeping and Allocations ........................... 14

b. Reporting .............................................................. 15

C. FEC Audits and Investigations ............................. 17

D. Independent-Expenditure Reporting .................... 18

SUMMARY OF ARGUMENT ............................................................................... 19

ARGUMENT ........................................................................................................... 21 

I. As Applied to the Plaintiffs, the Contribution Limits Are 

Unconstitutional .................................................................................. 21 

A. Plaintiffs want to associate in order to do collectively 

what they have the right to do individually .............................. 24 

B. Plaintiffs’ contributions to SpeechNow.org raise no 

greater concerns about corruption than their independent 

 expenditures .............................................................................. 27 

1. The FEC’s position is an attack on the principle of 

independence .................................................................. 28 

2. The FEC can offer no legitimate grounds for 

limiting contributions to SpeechNow.org ....................... 32 

a. “Contribution” is not a magic word ..................... 33 

b. McConnell does not support the FEC’s 

 position ................................................................. 37 

II. Because SpeechNow.org Will Disclose Its Independent 

Expenditures Under § 434(c), There Is No Constitutionally 

Legitimate Reason to Require It to Become a Political 

Committee ........................................................................................... 41 

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A. Reporting under § 434(c) will satisfy any governmental 

interest in disclosure ................................................................. 44 

B. The FEC can offer no constitutionally legitimate reason 

to require SpeechNow.org to become a political 

committee .................................................................................. 46 

1. Political-committee status imposes a serious 

burden on the exercise of First Amendment rights ........ 47 

2. SpeechNow.org’s “major purpose” does not justify 

treating it as a political committee .................................. 51 

3. The FEC’s “major purpose” argument conflicts 

with Davis v. FEC........................................................... 56 

III. If Plaintiffs Are Compelled to Register As a Political 

Committee, They Should Be Made to Do So Only After 

Making Independent Expenditures ..................................................... 58 

CONCLUSION ........................................................................................................ 59 

CERTIFICATE OF COMPLIANCE 

CERTIFICATE OF FILING AND SERVICE 

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TABLE OF AUTHORITIES 

 Pages

Cases

AFL-CIO v. FEC, 

 333 F.3d 168 (D.C. Cir. 2003) ....................................................................... 50

Athens Lumber Co. v. FEC, 

 689 F.2d 1006 (11th Cir. 1982) ..................................................................... 21 

Akins v. FEC, 

 101 F.3d 731 (D.C. Cir. 1996) ....................................................................... 51 

Ariz. Right to Life PAC v. Bayless, 

 320 F.3d 1002 (9th Cir. 2003) ....................................................................... 50 

Austin v. Mich. State Chamber of Commerce, 

 494 U.S. 652 (1990)....................................................................................... 46

Blount v. SEC, 

 61 F.3d 938 (D.C. Cir. 1995) ................................................................... 46-47

Brown v. Socialist Workers ‘74 Campaign Comm., 

 459 U.S. 87 (1982) ......................................................................................... 50

*Buckley v. Valeo, 

 424 U.S. 1 (1976) .................. 20, 21, 22, 23, 24, 26, 27, 28, 29, 30, 31, 33, 34 

 35, 36, 37, 39, 40, 42, 43, 44, 45, 50, 51, 54, 55, 56 

*Cal. Med. Ass’n v. FEC, 

 453 U.S. 182 (1981)..................................................................... 21, 35, 37, 39

*Citizens Against Rent Control v. City of Berkeley, 

 454 U.S. 290 (1981).................................................. 22, 26, 27, 28, 34, 40, 47 

* Authorities Upon we Chiefly Rely On Are Marked with an asterisk. 

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

 518 U.S. 604 (1996)........................................................................... 24-25, 32 

Critical Mass Energy Project v. Nuclear Regulatory Comm’n, 

 975 F.2d 871 (D.C. Cir. 1992) ....................................................................... 22

*Davis v. FEC, 

 128 S. Ct. 2759 (2008) .................................................... 22, 23, 34, 40, 56, 57

*EMILY’s List v. FEC, 

 581 F.3d 1 (D.C. Cir. 2009) .................... 19, 21, 22, 23, 26, 28, 31, 37, 39, 40

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

 479 U.S. 238 (1986)............................................ 20, 27-28, 34, 41, 42, 43, 46, 

 48, 50, 51, 52, 53, 54, 55, 56 

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

 470 U.S. 480 (1985) ................................................ 22, 23, 24, 28, 40, 41, 57

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

 551 U.S. 449 (2007)........................................ 6, 23, 33, 40, 41, 42, 46, 53, 56 

King v. Palmer, 

 950 F.2d 771 (D.C. Cir. 1991) ....................................................................... 36

Marks v. United States, 

 430 U.S. 188 (1977)................................................................................. 36, 37

McConnell v. FEC, 

 540 U.S. 93 (2003) .................................................... 25, 32, 37, 38, 39, 40, 56 

Morse v. Frederick, 

 551 U.S. 393 (2007)....................................................................................... 24 

NAACP v. Alabama, 

 357 U.S. 449 (1958)....................................................................................... 27 

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

 525 F.3d 274 (4th Cir. 2008) .................................... 22, 26, 29, 31, 33, 40, 50 

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Nw. Austin Mun. Util. Dist. No. One v. Holder, 

 129 S. Ct. 2504 (2009) ................................................................................... 55

Randall v. Sorrell, 

 548 U.S. 230 (2006)....................................................................................... 34 

Shuttlesworth v. City of Birmingham, 

 394 U.S. 147 (1968)....................................................................................... 50 

United States v. Thirty-Seven (37) Photographs, 

 402 U.S. 363 (1971)....................................................................................... 55 

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

 546 U.S. 410 (2006)................................................................................. 33, 40

Constitutional Provision

U.S. Const. amend. I ............................................ 1, 2, 4, 6, 7, 21, 22, 24, 26, 34, 35, 

 36, 40, 42, 46, 47, 50, 53, 57, 59 

Statutes

District of Columbia Uniform Unincorporated Nonprofit Associations Act, 

D.C. Code § 29-971.01-.15 ............................................................................. ii

Federal Election Campaign Act ................................................................................. 1 

2 U.S.C. § 431(4) ................................................................................................ 2, 48 

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

2 U.S.C. § 431(11) ................................................................................................... 44 

2 U.S.C. § 431(17) ............................................................................................. 29, 30 

2 U.S.C. § 431(8) ....................................................................................................... 2 

2 U.S.C. § 432 ............................................................................................................ 2 

2 U.S.C. § 432(a) ..................................................................................................... 48 

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2 U.S.C. § 432(h) ..................................................................................................... 48 

2 U.S.C. § 432(h)(1) ................................................................................................. 48 

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

2 U.S.C. § 433(a) ..................................................................................................... 48 

2 U.S.C. § 433(d) ..................................................................................................... 49 

2 U.S.C. § 434(a) ................................................................................................. 2, 49 

2 U.S.C. § 434(a)(4) ................................................................................................. 49 

2 U.S.C. § 434(b) ..................................................................................................... 49 

2 U.S.C. § 434(c) ...................................................... 8, 41, 42, 44, 46, 49, 50, 56, 58 

2 U.S.C. § 437g(d) ................................................................................................... 12 

2 U.S.C. § 437h ........................................................................................ i, 1, 3, 6, 21 

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

2 U.S.C. § 441a(a)(3) ....................................................................................... 1, 2, 12 

2 U.S.C. § 441d .................................................................................. 9, 42, 45, 56, 58 

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

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

11 C.F.R. § 100.16 .................................................................................................. 29 

11 C.F.R. § 100.75 ................................................................................................... 15 

11 C.F.R. § 100.77 ................................................................................................... 15 

11 C.F.R. § 102.1 ............................................................................................... 13-14 

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11 C.F.R. § 102.2(a)(2) ............................................................................................ 14 

11 C.F.R. §§ 102.2(a)(1)(i)-(vi) ............................................................................... 14 

11 C.F.R. § 102.3(a)(1) ............................................................................................ 14 

11 C.F.R. §§ 102.9(a)(4)(i)-(ii) ................................................................................ 14 

11 C.F.R. § 102.9(b)(2) ............................................................................................ 15 

11 C.F.R. § 102.9(c) ................................................................................................. 15 

11 C.F.R. § 103.2 ............................................................................................... 13, 48 

11 C.F.R. § 103.3 ............................................................................................... 14, 48 

11 C.F.R. § 104.5(c) ................................................................................................. 16 

11 C.F.R. § 104.5(c)(1)(i) ........................................................................................ 16 

11 C.F.R. § 104.5(c)(1)(ii)(A) ................................................................................. 16 

11 C.F.R. § 104.5(c)(1)(iii)(A) ............................................................................... 16 

11 C.F.R. §§ 104.5(c)(2)(i)(A)-(B) .......................................................................... 16 

11 C.F.R. § 104.5(g) ................................................................................................ 17 

11 C.F.R. § 104.5(h)(1) ............................................................................................ 16 

11 C.F.R. § 109.1 ..................................................................................................... 30 

11 C.F.R. § 109.10 ............................................................................................. 30, 45 

11 C.F.R. § 109.20(b) .............................................................................................. 30 

11 C.F.R. § 109.21 ................................................................................................... 29 

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

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Other Publications

Alexis de Tocqueville, Democracy in America 

 (Phillips Bradley ed., Alfred A. Knopf 1994) (1848) ................................... 47 

Price Index Increases for Contribution and Expenditure Limitations, 

 74 Fed. Reg. 7435 (Feb. 17, 2009) ................................................................ 12 

Statement of Policy Regarding Treasurers Subject to Enforcement Proceedings, 

 70 Fed. Reg. 3 (Jan. 3, 2005) ......................................................................... 21 

Supplemental Explanation and Justification, Political Committee Status, 

 72 Fed. Reg. 5595 (Feb. 7, 2007) .................................................................. 54

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GLOSSARY 

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

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

FEC Federal Election Commission 

FECA Federal Election Campaign Act 

MUR Matter Under Review 

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

U.S.C. § 431(4)(A) 

RFAI Request for Additional Information 

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STATEMENT OF JURISDICTION 

The District Court had jurisdiction over this case under 28 U.S.C. §§ 1331 

and 2201 because Plaintiffs sought a declaratory judgment on federal questions: 

whether various provisions of the Federal Election Campaign Act (FECA) were 

constitutional as applied to their proposed activities. The District Court also had 

jurisdiction under 2 U.S.C. § 437h, because the individual Plaintiffs are eligible to 

vote in an election for the office of President and sought a declaratory judgment 

concerning the constitutionality of provisions of FECA. 

This Court has jurisdiction in the instant action under 2 U.S.C. § 437h 

because the Plaintiffs ask the en banc Court of Appeals to resolve the five 

questions of law certified by the District Court. 

STATEMENT OF THE ISSUES 

The District Court on July 29, 2008, certified the following questions for 

consideration by this Court: 

1. Whether the contribution limits contained in 2 U.S.C. §§ 441a(a)(1)(C) 

and 441a(a)(3) violate the First Amendment by preventing David Keating, 

SpeechNow.org’s president and treasurer, from accepting contributions to 

SpeechNow.org in excess of the limits contained in §§ 441a(a)(1)(C) and 

441a(a)(3)? 

2. Whether the contribution limit contained in 2 U.S.C. § 441a(a)(1)(C) 

violates the First Amendment by preventing the individual plaintiffs from making 

contributions to SpeechNow.org in excess of $5000 per calendar year? 

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3. Whether the biennial aggregate contribution limit contained in 2 U.S.C. 

§ 441a(a)(3) violates the First Amendment by preventing Fred Young from making 

contributions to SpeechNow.org that would exceed his individual biennial 

aggregate limit? 

4. Whether the organizational, administrative, and continuous reporting 

requirements contained in 2 U.S.C. §§ 432, 433, and 434(a) violate the First 

Amendment by requiring David Keating, SpeechNow.org’s president and 

treasurer, to register SpeechNow.org as a political committee, to adopt the 

organizational structure of a political committee, and to comply with the 

continuous reporting requirements that apply to political committees? 

5. Whether 2 U.S.C. §§ 431(4) and 431(8) violate the First Amendment by 

requiring David Keating, SpeechNow.org’s president and treasurer, to register 

SpeechNow.org as a political committee and comply with the organizational and 

continuous reporting requirements for political committees before SpeechNow.org 

has made any expenditures or broadcast any advertisements? 

STATUTES AND REGULATIONS 

 A separately bound addendum contains the statutes and regulations that 

Plaintiffs refer to in this brief. 

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STATEMENT OF THE CASE 

On February 14, 2008, SpeechNow.org and the individual Plaintiffs filed 

their complaint along with a motion for preliminary injunction. The motion sought 

to enjoin the application of contribution limits that apply to the Plaintiffs. The 

District Court denied that motion on July 1, 2008. The Plaintiffs timely filed their 

notice of appeal to this Court on July 22, 2008. 

Meanwhile, the Plaintiffs on June 27, 2008, asked the District Court to 

certify five constitutional questions for consideration by the en banc Court of 

Appeals pursuant to 2 U.S.C. § 437h. The District Court granted that motion on 

July 11, 2008. After conducting discovery during the late summer and fall of 

2008, the parties submitted proposed findings of fact and briefs on evidentiary and 

other issues related to the proposed findings, which was completed on January 13, 

2009. 

On September 28, 2009, the District Court issued its findings of fact, which 

focused on three topics: how SpeechNow.org was organized, what 

SpeechNow.org’s activities are, and how the challenged laws affect those 

activities. J.A. 1260. On October 7, 2009, the District Court transmitted these 

findings, along with the previously certified questions of law, to the en banc Court 

of Appeals. 

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INTRODUCTION 

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

prevent individuals from joining together to exercise their First Amendment rights 

to speak and associate. Plaintiffs are individuals who have created a group called 

SpeechNow.org and those who wish to contribute money to the group. 

SpeechNow.org’s mission is to engage in express advocacy in favor of candidates 

who support the freedom of speech and against those who do not. 

Plaintiff David Keating, SpeechNow.org’s president, created the group 

specifically to allow individuals to speak out about candidates without creating 

concerns about corruption that would justify extensive regulation under the 

campaign-finance laws. Thus, SpeechNow.org is an unincorporated association 

that accepts donations only from individuals. It spends money only on its own 

speech and related activities—that is, on independent expenditures—but does not 

make contributions to, or coordinate with, candidates or political parties. And it 

will disclose under the provisions applicable to those who make independent 

expenditures. 

Nevertheless, the FEC has concluded that SpeechNow.org must be regulated 

as a “political committee” under the campaign-finance laws. Political committees 

are among the most heavily regulated entities under the campaign-finance laws. 

Contributions to them are limited to no more than $5,000 from any individual in a 

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calendar year. They must register with the FEC and comply with onerous 

administrative, organizational, and continuous-reporting requirements that apply 

regardless of whether they are engaged in any political activity. Penalties for 

violations of these laws include civil and criminal fines and even jail time. 

The theory of Plaintiffs’ case is simple. Individuals acting alone are 

constitutionally entitled to spend unlimited amounts of money on their independent 

expenditures; several individuals acting in association with one another are thus 

entitled to do the same thing. This conclusion follows inexorably from the 

Supreme Court’s many cases holding that independent expenditures are core 

political speech that create no concerns about corruption and thus may not be 

limited. The FEC can overcome this conclusion only by destroying the principle 

that independent expenditures may not be limited or by destroying the right of 

association. 

For the same reason, SpeechNow.org cannot be required to become a 

political committee. The Supreme Court has recognized that political-committee 

status imposes serious burdens on small groups. As a result, Plaintiffs should be 

permitted to satisfy the government’s interest in disclosure in the least-burdensome 

manner. The campaign-finance laws already provide that narrowly tailored option 

in the form of disclosure and disclaimer provisions for those making independent 

expenditures. Plaintiffs will comply with all of these provisions. 

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In sum, the Supreme Court has long recognized a basic distinction in the 

campaign-finance laws between entities that are composed of, work with, or donate 

to candidates and those that do not. The former create concerns about corruption 

or circumvention of the campaign-finance laws that justify more burdensome and 

extensive regulation. The latter—individuals and groups like SpeechNow.org that 

are independent of candidates and spend their money on their own speech—do not. 

The interests that underlie the campaign-finance laws do not justify regulating 

those who independently exercise First Amendment freedoms. As the Supreme 

Court has said, the “tie goes to the speaker, not the censor.” FEC v. Wis. Right to 

Life, Inc. (WRTL II), 551 U.S. 449, 474 (2007).

STATEMENT OF FACTS 

The District Court entered findings of fact in this action pursuant to 2 U.S.C. 

§ 437h. J.A. 1260-83. Plaintiffs have also summarized many of the pertinent facts 

in the statement of facts in their opening brief in the consolidated case, no. 08-

5223. Where possible, Plaintiffs have summarized relevant facts here rather than 

repeating what they have already stated in the consolidated case. 

I. Structure and Operations of SpeechNow.org 

Plaintiffs are members and supporters of SpeechNow.org, an independent 

group of citizens that wishes to increase protections for First Amendment rights by 

helping to elect candidates who support those rights. J.A. 827, 1266. To that end, 

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SpeechNow.org will raise funds from individuals to produce and broadcast 

advertisements during elections that urge voters to elect candidates who support 

First Amendment rights and defeat those who do not. J.A. 1270. 

SpeechNow.org is the brainchild of David Keating, its president. Mr. 

Keating, a long-time activist, has experienced the difficulties of complying with 

campaign-finance laws first-hand. He decided to create the group as a way to 

allow individuals to band together and speak out about candidates without 

becoming mired in complicated campaign-finance regulations. J.A. 781-82 at ¶¶ 3, 

6; FEC Ex. 11 in Support of FEC Proposed Findings of Fact, Transcript of 

Deposition of David Keating taken September 25, 2008 at 116:20-119:12. In 

creating SpeechNow.org, Mr. Keating reached out to like-minded individuals to 

help operate and fund it. He enlisted his friends Daniel Shapiro and Ed Crane to 

serve as governing members of the organization. J.A. 834-35; Keating Dep. at 

132:10-22. He asked Jon Coupal, President of the Howard Jarvis Taxpayers 

Association, to serve as the group’s vice president. J.A. 836; FEC Ex. 8 in Support 

of FEC Proposed Findings of Fact, Transcript of Deposition of John Coupal taken 

September 30, 2008 at 27:4-7; Keating Dep. at 133:22-134:4. He asked his 

brother-in-law, Richard Marder, and Fred Young, whom he met through his 

position with the Club for Growth, to pledge money. J.A. 791 at ¶ 39; Keating 

Dep. at 133:18-19, 134:15-135:5. Each of these individuals agrees with 

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SpeechNow.org’s mission and its message. J.A. 791 at ¶ 39, 1268; Coupal Dep. at 

27:4-7. 

Mr. Keating set up SpeechNow.org to avoid any risk of corruption as the 

Supreme Court has understood and applied that term. Thus, SpeechNow.org will 

solicit and accept donations only from individuals who can legally spend money to 

influence federal elections. J.A. 1264. SpeechNow.org is an unincorporated 

association, and it will not accept funding from corporations, unions, political 

committees, or any other entity that is prohibited from making contributions to 

candidates. J.A. 1263-64. SpeechNow.org will also operate independently of and 

will make no contributions to political candidates or political-party committees. 

J.A. 1265. SpeechNow.org will make only independent expenditures. Id. Under 

its bylaws, SpeechNow.org’s members and officers must review the FEC’s 

coordination regulations and the group’s bylaws and agree to abide by both. J.A. 

1266. 

SpeechNow.org will comply with the disclosure and disclaimer provisions 

that apply to groups that make independent expenditures. J.A. 789-90 at ¶¶ 33-36. 

Thus, under 2 U.S.C. § 434(c), SpeechNow.org will report its independent 

expenditures within the prescribed time frame under the FEC’s rules (within either 

24 or 48 hours, depending on the expenditure’s size and when it is made). J.A. 

1278. For each independent expenditure, SpeechNow.org will disclose the identity 

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of each donor who has contributed more than $200 to the group. J.A. 790 at ¶ 36, 

1279. Pursuant to 2 U.S.C. § 441d, SpeechNow.org’s communications will 

include its name, address, and telephone number or World Wide Web address, and 

will indicate that SpeechNow.org paid for the communication, that it was 

responsible for the content, and that the communication was not authorized by any 

candidate. J.A. 1281-82. 

II. SpeechNow.org’s Planned Activities 

SpeechNow.org wants to produce and broadcast political advertisements 

during the 2010 and future election cycles. J.A. 1271. It had planned to run 

advertisements in 2008 and had prepared four television scripts that called for the 

defeat of two federal candidates, Representative Dan Burton and Senator Mary 

Landrieu. J.A. 1271-72. SpeechNow.org, however, was unable to produce and 

broadcast these advertisements during the pendency of this case. J.A. 1274; Brief 

of Appellants at 9, SpeechNow.org v. FEC, No. 08-5223 (D.C. Cir. Aug. 24, 2009). 

The cost to produce these advertisements would have been roughly $12,000 

dollars. J.A. 1272. Like all advertisements, the cost to air them would have 

depended on the number of times they were to be broadcast and the size of the 

audience reached. Id. To reach his target audience, Mr. Keating believed it would 

have been necessary to have spent at least $110,500; preferably, he would have 

spent upwards of $400,000. J.A. 786 at ¶ 22, 1273. 

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Four individuals are prepared immediately to donate funds to 

SpeechNow.org to pay for its advertisements. Plaintiff Fred Young wishes to 

donate $110,000. J.A. 1268. Plaintiff Edward Crane wishes to donate $6,000. Id. 

Richard Marder wishes to donate $5,500. J.A. 791 at ¶ 39. David Keating wishes 

to donate $5,500. J.A. 1267-68. 

These donations, which would cover the costs to produce and broadcast the 

advertisements described above, would serve as the seed funding that 

SpeechNow.org needs to speak out and become a functioning organization. J.A. 

786 at ¶ 22, 791-93 at ¶¶ 40-43, 1277. Two other Plaintiffs, Scott Burkhardt and 

Brad Russo, wish to donate $100 each to SpeechNow.org so their views can reach 

a wider audience than if they spoke alone. J.A. 1269. Mr. Burkhardt learned of 

SpeechNow.org in the media, and attempted to donate money to the group, but was 

told it could not accept donations due to the campaign-finance laws. J.A. 881-82 at 

¶ 2. 

Mr. Keating set up a website for SpeechNow.org, www.speechnow.org, on 

which he has posted information about the group and its proposed activities. J.A. 

799. The website allows people to sign up to receive more information about the 

group and to indicate whether they would consider donating money if 

SpeechNow.org were legally able to operate without contribution limits or 

political-committee regulations. J.A. 803. More than 180 people have signed up 

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to receive more information, and about 75 of them have indicated that they would 

consider donating to SpeechNow.org. J.A. 1271. Mr. Keating has also opened a 

PayPal account that he will use to accept donations if SpeechNow.org is legally 

able to operate. J.A. 855, 1271. 

III. The Application of the Federal Election Campaign Act to 

SpeechNow.org 

On November 14, 2007, SpeechNow.org submitted an advisory-opinion 

request to the FEC to determine whether it would be permitted to operate without 

having to become a political committee under FECA. J.A. 478. Because the FEC 

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

unable to issue a final advisory opinion. As a result, under the FEC’s rules, 

SpeechNow.org’s request to be permitted to operate as it wished was denied. J.A. 

560; see also 11 C.F.R. § 112.4(a). The FEC’s Office of General Counsel did, 

however, issue a draft opinion which concluded that SpeechNow.org met the 

statutory definition of “political committee” and was thus subject to FECA’s 

contribution limits and other regulations of political committees. J.A. 563. The 

FEC has not altered the position of its general counsel’s office in this case. J.A. 

585-86. 

The FEC’s classification of SpeechNow.org as a political committee has two 

primary consequences. First, SpeechNow.org is subject to annual limits on the 

contributions it may accept from any one donor and its donors are subject to limits 

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on the amounts they may contribute. Second, SpeechNow.org is subject to the 

administrative, organizational, and continuous reporting obligations that apply to 

political committees. 

 A. Contribution Limits 

Individuals may contribute no more than $5,000 per year to a political 

committee, 2 U.S.C. § 441a(a)(1)(C), and they may contribute no more than 

$115,500 in the aggregate to all political parties, committees, and candidates in any 

two-year period. Id. § 441a(a)(3).1

 As a result, SpeechNow.org may not accept 

the amounts that its prospective donors wish to contribute and the donors may not 

give those amounts to SpeechNow.org. J.A. 1277. Those who violate these limits 

are subject to fines and possible imprisonment if the violations are knowing and 

willful. 2 U.S.C. § 437g(d); J.A. 585. David Keating, as SpeechNow.org’s 

treasurer, would be personally liable if the group knowingly accepted donations in 

excess of the limits. J.A. 1277; 2 U.S.C. § 437g(d). 

As a result of the contribution limits, SpeechNow.org was unable to accept 

the donations that Messrs. Keating, Crane, Young, and Marder wished to make and 

 

1

 Since the filing of this lawsuit, the FEC has adjusted the biennial aggregate limits 

to account for inflation. Price Index Increases for Contribution and Expenditure 

Limitations, 74 Fed. Reg. 7435 (Feb. 17, 2009). 

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thus unable to fund the ads it wished to produce and broadcast. J.A. 791-92 at 

¶¶ 39-41.2

 

B. Administrative, Organizational, and Continuous-Reporting 

Requirements for Political Committees 

Political committees are among the most regulated entities under the federal 

campaign-finance laws. They are, in essence, creatures of federal law, and federal 

law dictates every aspect of their existence and operations, from how they may be 

created, to how they may operate, and even when and under what circumstances 

they may terminate. 

1. Registering a Political Committee 

If SpeechNow.org registered as a political committee, it would be classified 

as a “non-connected” committee. J.A. 1279. Registering as a non-connected 

committee is a multi-step process. First, a would-be political committee must 

obtain a taxpayer-identification number from the IRS in order to open the required 

bank account into which it must deposit all funds. J.A. 638 at 108:16-109:3; 11 

C.F.R. § 103.2. Within 10 days of becoming a political committee, the group must 

file FEC Form 1, a statement of organization, with the Commission. 11 C.F.R. 

 

2

 Plaintiffs also introduced expert testimony below that shows the burden of 

contribution limits on their ability to speak effectively. See Declarations of 

Rodney Smith and Jeffrey Milyo, Ph.D.in Support of Plaintiffs’ Proposed Findings 

of Fact. Both were submitted to the District Court along with Plaintiffs’ Proposed 

Findings of Fact for Certification (dkt. # 44). 

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§ 102.1. On that form, the group must designate its treasurer, custodian of records, 

and the account in which it will deposit all funds. J.A. 1280; 11 C.F.R. 

§§ 102.2(a)(1)(i)-(vi). If any of the information on the FEC Form 1 changes, the 

political committee must file an amended statement within 10 days. J.A. 1280; 11 

C.F.R. § 102.2(a)(2). Once registered, a political committee must file regular 

reports of all of its activities, even if it has nothing to report. J.A. 644 at 130:2-11. 

These obligations continue until the committee is terminated, which it may do only 

with the FEC’s permission. J.A. 643-44 at 127:6-130:11; 11 C.F.R. § 102.3(a)(1). 

2. Operating a Political Committee 

The primary purpose of the regulations that apply to political committees is 

to account for every dollar that goes into and comes out of the committee. As a 

result, the operational requirements for political committees can be divided into 

two categories: (1) recordkeeping and allocation requirements; and (2) reporting 

requirements. 

a. Recordkeeping and Allocations 

Political committees, and, specifically, their treasurers, must maintain 

detailed records of all the group’s receipts and disbursements. Treasurers must 

deposit all contributions into the committee’s account within ten days of receipt. 

11 C.F.R. § 103.3. They must keep photocopies or digital images of every 

contribution over $50 made by check. Id. § 102.9(a)(4)(i)-(ii). And they must 

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keep receipts for all disbursements over $200. Id. § 102.9(b)(2). All of these 

records must be maintained for three years. Id. § 102.9(c). 

In order to track its contributions and expenditures, a political committee 

must first determine into what category they fall and often whether they must be 

allocated to the committee at all. For instance, David Keating, SpeechNow.org’s 

treasurer, operates the group out of his home. J.A. 794 at ¶ 47. If SpeechNow.org 

were required to become a political committee, Mr. Keating would have to 

determine the fair-market value of the portion of his home—including such things 

as telephone and Internet connections—used by the committee and properly 

account for it, in much the same way that an individual must determine how to 

account for a home office on his income taxes. J.A. 645-46 at 136:8-137:8, 139:6-

20. If Mr. Keating were to conduct a fundraiser at his home, he would have to 

engage in the same process. J.A. 1280-81; 11 C.F.R. §§ 100.75, .77. 

b. Reporting 

Non-connected committees must file detailed reports with the FEC of all 

receipts and disbursements on a regular basis. J.A. 1280. The appropriate form—

FEC Form 3X—consists of five pages of summary information on receipts and 

disbursements followed by sixteen different “schedules.” J.A. 687. The schedules 

require detailed information on a wide variety of topics, including, among other 

things, all contributors and the amounts they donate (schedule A); all 

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disbursements and to whom they are made (schedule B); any loans the committee 

receives (schedule C); all of the committee’s debts and obligations (schedule D); 

any itemized independent expenditures the committee makes (schedule E); any 

itemized coordinated party expenditures the committee makes (schedule F); the 

committee’s activities relating to state or local elections (schedule H1-H6); and the 

committee’s “Levin” funds (schedules L, L-A, and L-B). J.A. 642-43 at 125:22-

127:5; J.A. 687. Form 3X and the various schedules are accompanied by thirtyone pages of instructions. J.A. 709. 

A non-connected committee must make these disclosures four times in an 

election year and twice in a nonelection year. J.A. 644 at 131:10-12, 18-20; 11 

C.F.R. §§ 104.5(c)(1)(i), (c)(2)(i)(A)-(B). Additionally, it must file a twelve-day 

pre-primary report in every state in which it participates in a primary election, 11 

C.F.R. § 104.5(c)(1)(ii)(A), and both pre- and post-general-election reports for any 

general election and for any special election in which it participates. Id.; 11 C.F.R. 

§ 104.5(c)(1)(iii)(A), (h)(1). Alternatively, it can choose to file its periodic 

disclosures monthly rather than quarterly. J.A. 644 at 131:7-9; 11 C.F.R. 

§ 104.5(c). It may change its filing schedule only once per year and only after 

giving the FEC written notice. 11 C.F.R. § 104.5(c). In addition to this general 

reporting, non-connected committees must disclose any independent expenditures 

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they make. See id. § 104.5(g). Political committees have been fined for failing to 

file timely reports in accordance with these regulations. J.A. 644 at 132:12-15. 

The FEC provides advice and information to help committee treasurers 

comply with the regulations that apply to political committees. J.A. 614-16 at 

11:3-21:11, 624-25 at 53:16-54:20. This includes a 134-page Campaign Guide for 

Non-Connected Committees as well as monthly supplements containing new rules, 

interpretations, and policies of the Commission. J.A. 616 at 18:3-20:3. However, 

reliance on this information is not a shield to liability. J.A. 651 at 158:17-20. An 

entire cottage industry of lawyers, accountants, and consultants has emerged to 

guide political committees through the reporting process. J.A. 632-33 at 84:17-22, 

88:12-89:2. 

C. FEC Audits and Investigations 

The FEC can audit political committees or issue a Request for Additional 

Information (RFAI) if a committee’s reports indicate compliance, accounting, or 

reporting problems. J.A. 649 at 150:1-151:9; J.A. 1282. Out of roughly 8,000 

registered political committees, the FEC issues approximately 5,000 RFAIs per 

year. J.A. 630 at 75:16-76:12. 

 The FEC also investigates political committees for alleged violations of the 

campaign-finance laws. J.A. 1283. Since October 1, 1999, the FEC has found 

reason to believe that one or more violations have occurred in 427 “Matters Under 

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Review” and has conducted an investigation in 118 of these MURs. J.A. 592-94. 

For these investigations, 544 days on average passed from when the MUR opened 

until it was closed with respect to the last respondent. J.A. 594. 

D. Independent-Expenditure Reporting

Individuals and qualified nonprofit corporations that make independent 

expenditures are subject to less-extensive recordkeeping and reporting 

requirements than those that apply to political committees. Those who make 

independent expenditures must report those expenditures and the contributors who 

funded them within 24 or 48 hours of making each expenditure, depending on the 

size of the expenditure and when it occurs. J.A. 1278. This reporting is done 

using a three-page form that requires the individual or group to identify the size of 

the independent expenditure, to whom the expenditure was made, everyone who 

contributed $200 or more for the purpose of furthering the expenditure, and the 

candidate it was intended to support or oppose. Id. The form also asks, under the 

threat of perjury, if the group coordinated the expenditure with a candidate or his 

authorized committee or agent. The form’s instructions are three pages long. Id. 

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SUMMARY OF ARGUMENT 

Plaintiffs’ first three certified questions ask whether it is constitutional to 

impose limits on the amount of money that Plaintiffs may pool for the purpose of 

funding independent speech about candidates. This Court recently held in 

EMILY’s List v. FEC that contribution limits as they apply to groups like 

SpeechNow.org are unconstitutional. It should reaffirm that conclusion here. The 

Supreme Court has repeatedly held that individuals and groups have a right to 

make unlimited independent expenditures—that is, to spend money on speech that 

expressly advocates the election or defeat of candidates—and that doing so poses 

no concerns about corruption or its appearance. The FEC admits, as it must, that 

each Plaintiff individually has the right to spend as much as he wishes on his own 

independent expenditures. The FEC can show no constitutionally legitimate 

grounds for imposing contribution limits on the Plaintiffs simply because they have 

chosen to do collectively what they have an undisputed right to do individually. 

The act of associating does not create concerns about corruption that do not exist 

when Plaintiffs are acting individually. The FEC’s contrary position is an attack 

on the principle of independence and the right of association. 

Plaintiffs’ fourth certified question asks whether Plaintiffs may report their 

activities under the disclosure and disclaimer provisions that apply to those who 

make independent expenditures, rather than registering as a political committee. 

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The political-committee regulations impose significant and well-documented 

burdens on small groups. As a result, Plaintiffs should be permitted to satisfy the 

government’s interest in disclosure in the more narrowly tailored manner that 

applies to those who do what the Plaintiffs will do—make only independent 

expenditures. The FEC’s sole argument to the contrary rests on dicta from a case, 

FEC v. Massachusetts Citizens for Life, Inc. (MCFL), in which the Supreme Court 

did not require a small association to register as a political committee. Contrary to 

decades of Supreme Court precedent, the FEC applies this dicta as though it 

obviates the need for any constitutional scrutiny at all. The FEC’s position is 

supported by neither MCFL nor Buckley v. Valeo. 

Finally, Plaintiffs’ fifth certified question asks when Plaintiffs must register 

as a political committee if it turns out that they must register at all. The FEC’s 

position is that groups must become political committees even before they make 

any expenditures for express advocacy. This increases the burdens on groups like 

SpeechNow.org and it serves no constitutionally legitimate purpose. 

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ARGUMENT 

I. As Applied to the Plaintiffs, the Contribution Limits Are 

Unconstitutional 

 Plaintiffs’3

 first three certified questions ask whether the contribution limits 

that apply to their independent political activity are unconstitutional.4

 This Court 

should hold that they are. As a panel of this Court recently stated: 

[I]f one person is constitutionally entitled to spend $1 million to run 

advertisements supporting a candidate (as Buckley held), it logically 

follows that 100 people are constitutionally entitled to donate $10,000 

each to a non-profit group that will run advertisements supporting a 

candidate. 

EMILY’s List v. FEC, 581 F.3d 1, 10 (D.C. Cir. 2009) (citing Buckley v. Valeo, 424 

U.S. 1 (1976)). 

With its decision in EMILY’s List, this Court joined the Fourth Circuit as the 

second federal court of appeals to consider this issue and hold that the First 

 

3

 SpeechNow.org is not a party to case No. 09-5342 because it is ineligible for 

certification under 2 U.S.C. § 437h. However, David Keating, SpeechNow.org’s 

president and treasurer, is subject to both official and personal liability if 

SpeechNow.org violates the law. See Statement of Policy Regarding Treasurers 

Subject to Enforcement Proceedings, 70 Fed. Reg. 3, 3-6 (Jan. 3, 2005). Ed Crane, 

a governing member of SpeechNow.org, is also a party to this action. J.A. 874. 

Both have standing to assert SpeechNow.org’s First Amendment claims on their 

own behalf. See Cal. Med. Ass’n v. FEC (CalMed), 453 U.S. 182, 187 n.6 (1981) 

(holding that CalMed’s members and officers had standing to raise the 

constitutional claims at issue); Athens Lumber Co. v. FEC, 689 F.2d 1006, 1014 

(11th Cir. 1982) (holding that corporate president had standing to bring 

corporation’s claims under § 437h). 

4

 Because this case was certified under 2 U.S.C. § 437h, these issues are before the 

Court for the first time. Therefore the “standard of review” for all Plaintiffs’ issues 

is de novo. 

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Amendment prohibits limits on contributions to groups that make only independent 

expenditures. See N.C. Right to Life, Inc. v. Leake, 525 F.3d 274, 291-95 (4th Cir. 

2008). This Court’s decision in EMILY’s List is not only Circuit precedent,5

 it is 

correct. 

This Court’s decision in EMILY’s List—and Plaintiffs’ position in this 

case—follow from several fundamental constitutional principles. 581 F.3d at 5-8. 

The First Amendment protects the right to raise and spend money for political 

speech just as it protects speech itself. Buckley, 424 U.S. at 14. It also protects the 

right to associate for the purpose of amplifying one’s voice and speaking more 

effectively. Citizens Against Rent Control v. City of Berkeley, 454 U.S. 290, 295 

(1981); Buckley, 424 U.S. at 15. While the Supreme Court has upheld limits on 

contributions to candidates and political-party committees, it has made clear that 

“[p]reventing corruption or the appearance of corruption are the only legitimate 

and compelling government interests thus far identified for restricting campaign 

finances.” Davis v. FEC, 128 S. Ct. 2759, 2773 (2008) (quoting FEC v. Nat’l 

Conservative Political Action Comm. (NCPAC), 470 U.S. 480, 496-97 (1985)). As 

a result, the burden is squarely on the government to demonstrate not only that a 

limit serves the purposes of preventing corruption, but that each application of the 

 

5

 This Court’s prior panel decisions should not be overturned lightly. See Critical 

Mass Energy Project v. Nuclear Regulatory Comm’n, 975 F.2d 871, 876 (D.C. Cir. 

1992) (en banc). 

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law does so. WRTL II, 551 U.S. at 478. The Court has also made clear that the 

interest in preventing corruption is far from limitless, and it has rejected the 

government’s efforts to allow the interest in circumventing existing limits to 

expand without end. Id. (“Enough is enough.”). Finally, the government may not 

impose any limits to try to equalize the relative voices of those participating in the 

marketplace of political ideas. Davis, 128 S. Ct. at 2773-74. 

These principles lead inexorably to the conclusion that SpeechNow.org may 

raise and its donors may make unlimited contributions to fund its independent 

speech.6

 David Keating established SpeechNow.org to operate independently of 

both candidates and political-party committees; that independence is written right 

into the group’s bylaws. J.A. 827. It will make only independent expenditures, 

which the Supreme Court has long held are core political speech and create no 

concerns about corruption. Buckley, 424 U.S. at 39; NCPAC, 470 U.S at 497-98. 

As a result, the money that funds those independent expenditures can create no 

greater concerns about corruption or its appearance than the independent 

expenditures themselves. EMILY’s List, 581 F.3d at 9-11. Absent any legitimate 

 

6

 Plaintiffs have made this argument in detail in the preliminary-injunction appeal 

that was consolidated with this action. See Brief of Appellants at 25-44, 

SpeechNow.org v. FEC, no. 08-5223 (D.C. Cir. Aug. 24, 2009); Reply Brief of 

Appellants at 2-6, 17-28, SpeechNow.org v. FEC, no. 08-5223 (D.C. Cir. Oct. 15, 

2009). 

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concerns about corruption, the government lacks any grounds for imposing 

contribution limits on the Plaintiffs regardless of what level of scrutiny applies.7

 

A. Plaintiffs want to associate in order to do collectively what they 

have the right to do individually 

The FEC admits, as it must, that Plaintiff Fred Young may spend, without 

limit, the entire $110,000 he wishes to donate to SpeechNow.org on his own 

independent expenditures. See Defendant Federal Election Commission’s 

Memorandum In Opposition To Plaintiffs’ Motion for Preliminary Injunction at 

34, SpeechNow.org v. FEC, 567 F. Supp. 2d 70 (D.D.C. 2008). This is, of course, 

entirely consistent with over 30 years of campaign-finance jurisprudence. It is 

axiomatic not only that political speech “is at the core of what the First 

Amendment is designed to protect,” Morse v. Frederick, 551 U.S. 393, 403 (2007) 

(internal quotation marks omitted), but also that individuals and groups may spend 

unlimited amounts of money urging the election or defeat of candidates as long as 

their expenditures are independent of candidates. Buckley, 424 U.S. at 51; see also

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

 

7

 As Plaintiffs explained in detail in their preliminary-injunction appeal, their 

challenge to the contribution limits is entitled to strict scrutiny. See Brief of 

Appellants at 25-32, SpeechNow.org v. FEC, no. 08-5223 (D.C. Cir. Aug. 24, 

2009). But because the FEC can demonstrate no legitimate interest in imposing 

contribution limits on them, Plaintiffs’ challenge prevails under even intermediate 

scrutiny. 

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(Colorado I), 518 U.S. 604, 614-19 (1996); McConnell v. FEC, 540 U.S. 93, 221-

22 (2003). 

But there is a catch. Fred Young and the other individual Plaintiffs may 

speak as loudly and robustly as they want using as much of their own money for 

express advocacy as they wish, as long as they do so alone. The moment any of 

them chooses to join with even one other like-minded individual and they 

collectively spend their funds on the same type of independent expenditures, they 

become a political committee and each may devote only $5,000 to their speech. 

See Defendant Federal Election Commission’s Memorandum In Opposition To 

Plaintiffs’ Motion for Preliminary Injunction at 5, SpeechNow.org v. FEC, 567 F. 

Supp. 2d 70 (D.D.C. 2008). 

That position—which forms the core of the FEC’s entire argument in this 

case—is untenable. No principle in law or logic supports the proposition that 

although the government may not limit an individual’s independent expenditures, it 

may limit the amount of money he wishes to pool with others for the same 

independent expenditures; that, alone, Fred Young’s independent expenditures 

create no concerns about corruption, but if he joins with others, the amounts he 

wishes to spend are suddenly suspect; that the government may not limit a group’s 

independent spending, but that it may limit the funds the group raises to pay for 

that spending. Brief of Appellants at 34, SpeechNow.org v. FEC, No. 08-5223 

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(D.C. Cir. Aug. 24, 2009); EMILY’s List, 581 F.3d at 11; Leake, 525 F.3d at 293. 

As the Supreme Court has recognized, “[t]here are, of course, some activities, legal 

if engaged in by one, yet illegal if performed in concert with others, but political 

expression is not one of them.” Citizens Against Rent Control, 454 U.S. at 296. 

Fred Young and the other individual Plaintiffs—indeed, anyone who wishes 

to donate money to SpeechNow.org—are simply exercising the fundamental right 

of association. The Supreme Court has long held that the First Amendment 

protects the right to associate just as surely as it protects the right to speak. 

Buckley, 424 U.S. at 25. “[T]he practice of persons sharing common views banding 

together to achieve a common end is deeply embedded in the American political 

process.” Citizens Against Rent Control, 454 U.S. at 294. This practice has 

manifested itself in many ways; “in the political process it can focus on a candidate 

or on a ballot measure.” Id. The value of associating is that “by collective effort, 

individuals can make their views known, when, individually, their voices would be 

faint or lost.” Id. 

Plaintiffs wish to take advantage of the right of association by joining 

together in SpeechNow.org. David Keating possesses the experience to run a 

group like SpeechNow.org, but he lacks the funds to produce and broadcast ads on 

his own. J.A. 796-97 at ¶ 52. Ed Crane possesses the experience, but he lacks the 

time and the funds. J.A. 875 at ¶ 4. Fred Young can contribute large sums of 

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money, but he lacks the experience to produce and broadcast advertisements. J.A. 

871 at ¶ 4. Richard Marder, Scott Burkhardt, and Brad Russo wish to capitalize on 

the attributes of like-minded individuals in order to amplify their voices beyond 

what they could achieve on their own. J.A 791 at ¶ 39, 882-83 at ¶ 4, 879-80 at 

¶ 4. In short, each of the individuals who wish to associate in SpeechNow.org will 

take advantage of various aspects of the right of association to do collectively what 

they would be unable to do alone. Cf. NAACP v. Alabama, 357 U.S. 449, 460 

(1958) (“Effective advocacy of both public and private points of view, particularly 

controversial ones, is undeniably enhanced by group association . . . .”). 

The FEC’s position ignores the right of association entirely. Like the city in 

Citizens Against Rent Control, the FEC seeks to impose a limit “on individuals 

wishing to band together to advance their views” that it could not place on those 

individuals acting alone. 454 U.S. at 296. And just as the limit was “clearly a 

restraint on the right of association” in Citizens Against Rent Control, so it is here. 

Id. As the next section demonstrates, the FEC can offer no legitimate reason to 

impose this limit on the Plaintiffs. 

B. Plaintiffs’ contributions to SpeechNow.org raise no greater 

concerns about corruption than their independent expenditures 

Since Buckley, the Supreme Court has consistently held that independent 

expenditures are core political speech that pose no concerns about corruption and 

may not be limited. See FEC v. Mass. Citizens for Life, Inc. (MCFL), 479 U.S. 

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238 (1986); NCPAC, 470 U.S. at 491-501; Citizens Against Rent Control, 454 U.S. 

at 295-300. The same principle must apply to the money that funds independent 

expenditures. So long as SpeechNow.org remains independent of candidates and 

political parties and only makes independent expenditures, the money that funds 

the group and its independent expenditures is necessarily independent of 

candidates as well. That money can no more be considered “contributions” to a 

candidate than the group’s independent expenditures themselves. See EMILY’s 

List, 581 F.3d at 11. 

In opposing this simple point, the FEC attempts to lay waste to the principle 

of independence. David Keating created SpeechNow.org as an independent group, 

and the FEC has responded by arguing, contrary to Supreme Court precedent, 

relevant statutes, and even its own regulations, that independence cannot truly 

exist. Beyond that, the FEC has no grounds for claiming that contributions to 

SpeechNow.org may be limited. 

1. The FEC’s position is an attack on the principle of 

independence 

The principle of independence is a key component of campaign-finance law; 

indeed, it defines the difference between the financing of candidates’ campaigns, 

which may be regulated on corruption grounds, and the speech of individuals and 

groups, which must be left free. See Buckley, 424 U.S. at 28 (“The Act’s $1,000 

contribution limitation focuses precisely on the problem of large campaign 

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

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

in independent political expression . . . .”); Leake, 525 F.3d at 291-93; see also 2 

U.S.C. § 431(17); 11 C.F.R. §§ 100.16, 109.21. 

The Supreme Court made this point clear in Buckley where it assessed the 

constitutionality of limits on independent expenditures. See 424 U.S. at 44-47. 

The Court drew a sharp distinction between contributions to candidates, on the one 

hand, and expenditures that advocate the election or defeat of candidates but are 

made independently of those candidates, on the other. Id. at 46-47.8

 It made clear 

that an expenditure for express advocacy that is “controlled by or coordinated 

with” a candidate is considered a contribution to that candidate. Id. at 46. 

Coordinated expenditures may thus be limited on corruption grounds, because they 

can be used to circumvent limits on contributions to a candidate. Id. However, an 

expenditure that is “made totally independently of the candidate” is the speech of 

the individual making it and may not be limited. Id. at 47-48, 51. As the Court 

stated, “[t]he absence of prearrangement and coordination of an expenditure with 

the candidate or his agent not only undermines the value of the expenditure to the 

 

8 See also id. at 45 (stating that “unlike the contribution limitations’ total ban on 

the giving of large amounts of money to candidates, [the expenditure limitation] 

prevents only some large expenditures.” (emphasis added)). 

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candidate, but also alleviates the danger that expenditures will be given as a quid 

pro quo for improper commitments from the candidate.” Id. at 47.9

The distinction between independent speech and coordinated expenditures is 

reflected in the statutes and regulations as well. “Independent expenditure” is 

defined as an expenditure made for express advocacy that is not “made in concert 

or cooperation with or at the request or suggestion of” a candidate or political party 

committee. 2 U.S.C. § 431(17). The FEC’s rules provide further guidance on the 

line between independent expenditures and coordinated expenditures. See 11 

C.F.R. § 109.1. The rules make clear that independent expenditures are considered 

the expenditures of the person making them and are reported as such. See id. 

§ 109.10. Coordinated expenditures, by contrast, are considered in-kind or 

“indirect” contributions to the candidates they benefit and are thus subject to 

contribution limits. See id. § 109.20(b).10

In short, the principle of independence is fundamental to campaign-finance 

law. It implements several key principles from Buckley. To speak effectively 

 

9

 The Court in Buckley applied also the basic distinction to expenditures by 

volunteers, concluding that those made independently were not contributions to a 

candidate while those made at the candidate’s direction were. See 424 U.S. at 36-

37. 

10 The statutes and rules governing independent expenditures find their origins in 

the provisions of FECA at issue in Buckley. Indeed, the Court cited House and 

Senate reports describing the difference between independent and coordinated 

expenditures in much the same terms that the statutes and rules do today. See 424 

U.S. at 46 n.53. 

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requires the expenditure of money, and the fact that an individual or group spends 

money on speech cannot, standing alone, provide grounds for limiting that speech. 

See Buckley, 424 U.S. at 16, 47-48. Corruption is a concern when money is being 

given to candidates, not when it is spent independently of them. Id. at 46-47. 

Independent spending, while potentially beneficial to candidates, is far less 

valuable and thus less likely to be used as a quid pro quo. Id. at 47. 

The FEC’s approach to SpeechNow.org eviscerates the principle of 

independence. The FEC ignores the simple fact that everything that the Supreme 

Court recognized about independent expenditures applies with equal, if not greater, 

force to the money that funds those expenditures. If independent expenditures are 

far less valuable to candidates than contributions, then the same must be true of the 

donations that fund those independent expenditures. If independent expenditures 

are less likely than contributions to lead to a quid pro quo, then so are the 

donations that fund those independent expenditures. See EMILY’s List, 581 F.3d at 

11 (stating that “it is implausible that contributions to independent expenditure 

political committees are corrupting” (internal quotation marks omitted)); Leake, 

525 F.3d at 293-94. Concluding that donations to SpeechNow.org lead to 

corruption necessarily means that the same is true for SpeechNow.org’s 

independent expenditures. There is no way around this. 

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Indeed, that is what the FEC has argued. See Defendant Federal Election 

Commission’s Memorandum In Opposition To Plaintiffs’ Motion for Preliminary 

Injunction at 13-23, SpeechNow.org v. FEC, 567 F. Supp. 2d 70 (D.D.C. 2008). 

The FEC will no doubt make that argument again in this phase of the case, and 

Plaintiffs will address it in their reply brief. For now, it is important to note that 

the FEC can prevail only if the Supreme Court reverses three decades of consistent 

protections for independent expenditures, and the statutes and rules governing 

independence are eviscerated. Cf. Colorado I, 518 U.S. at 621-22 (“An agency’s 

simply calling an independent expenditure a ‘coordinated expenditure’ cannot (for 

constitutional purposes) make it one.”). 

2. The FEC can offer no legitimate grounds for limiting 

contributions to SpeechNow.org 

Aside from attacking the principle of independence, the FEC attempts to 

justify the application of contribution limits to SpeechNow.org in two primary 

ways. First, elevating form over substance, the FEC contends that it may limit 

contributions to SpeechNow.org simply because they are “contributions” and 

limits on contributions have long been held constitutional. See Brief for the 

Federal Election Commission at 19-20, SpeechNow.org v. FEC, No. 08-5223 (D.C. 

Cir. Sept. 23, 2009). Second, the FEC claims that the limits are constitutional 

under McConnell v. FEC. See id. at 34-43. Both arguments are wrong. 

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 a. “Contribution” is not a magic word

The FEC contends that Plaintiffs are challenging contribution limits that 

have been on the books for over 30 years. According to the FEC, the fact that the 

Supreme Court has upheld limits on contributions in certain contexts means that 

they are constitutional as applied to the Plaintiffs. See Brief for the Federal 

Election Commission at 19-43, SpeechNow.org v. FEC, No. 08-5223 (D.C. Cir. 

Sept. 23, 2009). 

However, the Supreme Court has made crystal clear that even laws 

previously upheld can be unconstitutional as they apply in certain contexts. See

Wis. Right to Life, Inc. v. FEC (WRTL I), 546 U.S. 410, 411-12 (2006). At the root 

of the FEC’s argument is the notion that the term “contribution” carries some 

constitutional significance by itself. See Brief for the Federal Election 

Commission at 19-20, SpeechNow.org v. FEC, No. 08-5223 (D.C. Cir. Sept. 23, 

2009); see also J.A. 384-86. But the Supreme Court has taken a functional 

approach to limits on campaign financing that is based, not on the labels that apply, 

but on the extent to which campaign financing has a sufficient nexus to the 

corruption of candidates. See, e.g., WRTL II, 551 U.S. at 478-79; Leake, 525 F.3d 

at 293. 

For example, in Buckley the Court held that a candidate’s contributions to 

his own campaign—which are reported to the FEC as “contributions”—are 

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nevertheless exempt from limits, because they create no concerns about corruption. 

424 U.S. at 52-54. Similarly, the Court has struck down limits on independent 

expenditures because they lack the necessary potential to corrupt candidates, but it 

has approved of limits on coordinated expenditures because they have the same 

potential for corruption as contributions. See id. at 47-48. And even though limits 

on contributions to candidates are constitutional, differential limits on 

contributions to the same candidates in the same race are not, see Davis, 129 S. Ct. 

at 2774, nor are contribution limits that are too low; see Randall v. Sorrell, 548 

U.S. 230 (2006). Although the Court held in Buckley that limits on contributions 

to candidates are an insubstantial burden on First Amendment rights, see 424 U.S. 

at 20-21, it held precisely the opposite in Citizens Against Rent Control with 

respect to limits on contributions to groups engaged in ballot-issue advocacy. See

454 U.S. at 298-99; see also MCFL, 479 U.S. at 263 (holding that a nonprofit that 

makes only independent expenditures cannot be subject to the political-committee 

requirements, including contribution limits). 

Thus, the question is not, as the FEC sees it, whether the label “contribution” 

or “expenditure” attaches to a particular sum of money. The question is whether 

that money is being spent in a way that is sufficiently connected to candidates to 

create concerns about corruption. See, e.g., Buckley, 424 U.S. at 45-47. For the 

reasons already stated, money donated to SpeechNow.org has no connection to 

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candidates at all as a matter of law and thus creates no concerns about corruption 

that would justify restricting First Amendment rights. 

Even the FEC’s claim that the laws challenged in this case have been on the 

books for over three decades is at best a half-truth in this context. Buckley did not 

directly address limits on contributions to political committees at all, much less 

limits on contributions to groups like SpeechNow.org. Buckley’s discussion of 

contribution limits pertained to limits on contributions by individuals to 

candidates,11 limits on contributions by political committees to candidates,12 and 

limits on the aggregate amounts that individuals could give to all candidates or 

committees that contribute to candidates.13 

The Court did not address the constitutionality of limits on contributions to a 

political committee until its decision in California Medical Ass’n v. FEC

(CalMed), 453 U.S. 182 (1981). CalMed involved a challenge by an 

unincorporated association to limits on its contributions to a registered 

multicandidate political committee. Id. at 185-86. A plurality of four Justices 

 

11 See 424 U.S. at 23-24 (stating that the “$1,000 ceiling applies regardless of 

whether the contribution is given to the candidate, to a committee authorized in 

writing by the candidate to accept contributions on his behalf, or indirectly via 

earmarked gifts passed through an intermediary to the candidate”). 

12 See id. at 35-36. 

13 See id. at 38 (upholding aggregate limit to prevent evasion of individual limits 

by “a person who might otherwise contribute massive amounts of money to a 

particular candidate through the use of unearmarked contributions to political 

committees likely to contribute to that candidate, or huge contributions to the 

candidate’s political party” (emphasis added)). 

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would have upheld the limits under Buckley on the grounds that they prevent 

corruption and only minimally burden First Amendment rights. Id. at 197. 

According to the plurality, CalMed’s desire to speak through a political committee 

by making contributions to it amounted only to “speech by proxy,” which “is not 

the sort of political advocacy that this Court in Buckley found entitled to full First 

Amendment protection.” Id. at 196. 

This is not the holding of the case, however, because the fifth vote was 

provided by Justice Blackmun, who concurred only in the judgment, but not in the 

plurality’s reasoning. See Marks v. United States, 430 U.S. 188, 193 (1977); King 

v. Palmer, 950 F.2d 771, 781 (D.C. Cir. 1991). Justice Blackmun made clear that 

he disagreed with the plurality’s view that CalMed’s First Amendment rights were 

only entitled to minimal protection. Id. at 202. He concurred with the plurality 

only because CalMed wanted to make contributions to a multicandidate political 

committee that could in turn make direct contributions to candidates. Id. at 203. 

Thus, for Justice Blackmun, the limits were constitutional on the same anticircumvention grounds that supported the aggregate limits at issue in Buckley. Id. 

However, the limits would not be constitutional, in Justice Blackmun’s view, if 

they applied to a group that, like SpeechNow.org, made only independent 

expenditures. Id. 

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A panel of this Court adopted Justice Blackmun’s concurrence as the law of 

this Circuit in EMILY’s List. See 581 F.3d at 16-17. For all of the reasons already 

stated, Plaintiffs agree that Justice Blackmun’s view is correct. But whether or not 

Justice Blackmun’s concurrence is itself binding precedent, it is clear that the 

concurrence limited the holding of CalMed. See Marks, 430 U.S. at 193. The 

decision stands only for the proposition that contributions to a multicandidate 

political committee may be limited for the same reasons the Court in Buckley

upheld the aggregate limits—because they prevent multicandidate political 

committees from being used to evade the individual limits. See CalMed, 453 U.S. 

at 197-99 (plurality opinion); id. at 203 (Blackmun, J., concurring). 

Since CalMed, the Supreme Court has not ruled on the constitutionality of 

contribution limits as they apply to political committees. This Court in EMILY’s 

List was thus addressing an open question, and the FEC’s claim that the Plaintiffs 

are attacking limits with a long constitutional pedigree is simply false. As the next 

section shows, the FEC’s last-ditch effort to support the limits that apply to the 

Plaintiffs—relying on McConnell—fails as well. 

 b. McConnell does not support the FEC’s position

The FEC relies on McConnell for the proposition that the government’s 

interests go beyond limiting quid pro quo corruption and apply to curbing undue 

influence on an officeholder’s judgment as well. Brief for the Federal Election 

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Commission at 30-33, SpeechNow.org v. FEC, No. 08-5223 (Sept. 23, 2009). 

Likening SpeechNow.org to the political-party committees at issue in McConnell, 

the FEC contends that SpeechNow.org will be used to funnel millions in softmoney donations to candidates. See id. at 29. 

The problem with this argument is that SpeechNow.org is not a politicalparty committee. McConnell involved a new law that Congress passed specifically 

to address the “manner in which parties have sold access to federal candidates and 

officeholders that has given rise to the appearance of undue influence.” 540 U.S. 

at 153-54. The Supreme Court upheld limits on soft-money donations to party 

committees after finding that, due to their close relationship with candidates, party 

committees were being used to gain undue influence over candidates and to 

circumvent limits on contributions to candidates. Id. at 145. 

The same is not only untrue of SpeechNow.org, but it cannot be true. 

SpeechNow.org is independent of candidates and party committees and will make 

only independent expenditures. See J.A. 827, 832-33. Its independence isolates it 

from candidates and party committees as a matter of law. It can be likened to the 

party committees at issue in McConnell only by ignoring the fact that it makes only 

independent expenditures and thus cannot sell access to candidates or party 

committees. 

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Notwithstanding the obvious differences between McConnell and this case, 

the FEC contends that McConnell already resolved Plaintiffs’ challenges. Relying 

on a single footnote in McConnell, the FEC argues that the Supreme Court has 

repudiated Justice Blackmun’s concurrence in CalMed and interpreted that 

decision to allow the imposition of contribution limits on groups that make only 

independent expenditures. See Brief for the Federal Election Commission at 30-

33, SpeechNow.org v. FEC, No. 08-5223 (D.C. Cir. Sept. 23, 2009) (citing 

McConnell, 540 U.S. at 152 n.48). 

But, as this Court explained in EMILY’s List, “footnote 48 simply cited CalMed together with Buckley in the course of establishing the constitutionality of 

limits on contributions to political parties, not to non-profits (which the Court had 

no need to address).” EMILY’s List, 581 F.3d at 14 n.13 (emphasis in original). 

Thus, the McConnell footnote simply applied the holding in CalMed as limited by 

Justice Blackmun’s concurrence. That is, limits may be imposed on contributions 

to groups—like political-party committees or multicandidate political 

committees—that make contributions to candidates or work with and are 

composed of candidates. See CalMed, 453 U.S. at 203 (Blackmun, J., 

concurring). A broader reading of footnote 48 would conflict with the holding of 

CalMed itself, which McConnell did not purport to overrule. 

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Moreover, McConnell was a facial challenge. Later cases made clear that it 

did not foreclose subsequent as-applied challenges even to the same laws that were 

at issue in the case, much less to laws that were not at issue in the case. See WRTL 

I, 546 at 411-12; WRTL II, 551 U.S. at 456. Yet the FEC now contends that even 

though McConnell did not foreclose subsequent as-applied challenges to the very 

laws at issue in that case, it did somehow foreclose as-applied challenges—such as 

this one—to laws that were not at issue in McConnell. And it did so in “a few 

sentences of a footnote in one of the longest cases in Supreme Court history.” 

EMILY’s List, 581 F.3d at 14 n.13 (citation omitted). McConnell simply does not 

support the FEC’s position. 

* * * * 

Plaintiffs’ approach, like the approach of both this Court in EMILY’s List 

and the Fourth Circuit in Leake, is entirely consistent with the Supreme Court’s 

repeated recognition that regulation of campaign financing is a narrow exception to 

the general rule that political debate must remain robust and uninhibited. See, e.g.,

Citizens Against Rent Control, 454 U.S. at 296-97 (“Buckley identified a single 

narrow exception to the rule that limits on political activity were contrary to the 

First Amendment.”); Davis, 128 S. Ct. at 2773 (“[P]reventing corruption or the 

appearance of corruption are the only legitimate and compelling government 

interests thus far identified for restricting campaign finances.” (quoting NCPAC, 

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470 U.S. at 496-97)). The Court has drawn a sharp distinction between 

independent political speech on one side, and campaign financing that is 

sufficiently connected to the corruption of candidates to justify regulation on the 

other. See, e.g., WRTL II, 551 U.S. at 478-79 (concluding that grassroots-lobbying 

group cannot be required to register as a political committee because its issue ads 

“are by no means equivalent to contributions, and the quid-pro-quo corruption 

interest cannot justify regulating them.”); NCPAC, 470 U.S. at 496-97 (concluding 

that a group’s independent expenditures may not be limited); MCFL, 479 U.S. at 

263 (concluding that nonprofit group that makes only independent expenditures 

may not be subjected to political committee regulations, including limits on 

contributions). 

SpeechNow.org clearly falls on the independent-speech side of this line. 

That means both that the contribution limits are unconstitutional as they apply to 

the Plaintiffs and that SpeechNow.org should not be required to register as a 

political committee. 

II. Because SpeechNow.org Will Disclose Its Independent Expenditures 

Under § 434(c), There Is No Constitutionally Legitimate Reason to 

Require It to Become a Political Committee 

The government has no more interest in requiring SpeechNow.org to register 

as a political committee than it has in imposing contribution limits on 

SpeechNow.org and its donors. That is so for all of the reasons stated above, but 

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also for the simple and compelling reason that SpeechNow.org will disclose its 

contributors and its independent expenditures under 2 U.S.C. § 434(c) and comply 

with the disclaimer provisions of § 441d. That disclosure will inform the public 

where SpeechNow.org’s money comes from and how it is being spent. See

Buckley, 424 U.S. at 66-67. Plaintiffs will thus satisfy any government interest by 

disclosing their activities in the same manner that any individual would disclose 

his own independent expenditures. See id. at 80-81. 

In short, Plaintiffs’ fourth certified question asks not whether Plaintiffs must 

disclose, but how they must do so. Must Plaintiffs adopt the administrative and 

organizational framework of a full-fledged political committee that makes 

contributions to candidates simply to disclose independent expenditures? Or may 

they do what any of them would be required to do if acting alone? 

Plaintiffs’ argument in this section is a simple question of narrow tailoring. 

The Supreme Court has held that the burdens of political-committee status are 

onerous, especially when imposed on small groups. MCFL, 479 U.S. at 255 

(plurality opinion); id. at 266 (O’Connor, J., concurring). Plaintiffs’ discussion of 

these burdens in their statement of facts makes this point indisputable. See supra

Statement of Facts, section III.B. Laws that burden First Amendment rights must 

be narrowly tailored to satisfy a compelling state interest. See WRTL II, 551 U.S. 

at 464. As the Supreme Court has made clear, “[w]here at all possible, government 

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must curtail speech only to the degree necessary to meet the particular problem at 

hand, and must avoid infringing on speech that does not pose the danger that has 

prompted regulation.” MCFL, 479 U.S. at 265. 

SpeechNow.org is independent of candidates and party committees. It 

makes no contributions to either; it will not coordinate with them; it is not itself a 

corporation; and it will accept no funds from corporations or unions. See supra

Statement of Facts, Section I. It thus presents no reason to be treated like political 

committees that do give money to candidates and thus are not independent of them. 

Cf. Buckley, 424 U.S. at 56 (stating that the “[e]xtensive reporting, auditing, and 

disclosure requirements applicable to both contributions and expenditures by 

political campaigns are designed to facilitate the detection of illegal 

contributions”). 

The FEC’s entire case for requiring SpeechNow.org to become a political 

committee relies on dicta from a case in which the Supreme Court did not require a 

small nonprofit to become a political committee. Relying on MCFL, the FEC 

contends that SpeechNow.org must become a political committee simply because 

its “major purpose” is campaign activity. See Brief for the Federal Election 

Commission at 28, SpeechNow.org v. FEC, No. 08-5223 (D.C. Cir. Sept. 23, 

2009). However, as demonstrated below, the Supreme Court has never held that a 

group that makes only independent expenditures can be required to become a 

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political committee simply because its spending, which does not otherwise create 

concerns about corruption, reaches a certain percentage of its overall budget. In 

short, the Supreme Court has simply not decided the issue that Plaintiffs’ fourth 

certified question raises. This Court should answer it in Plaintiffs’ favor. 

A. Reporting under § 434(c) will satisfy any governmental interest in 

disclosure 

In Buckley, the Supreme Court upheld disclosure requirements for those who 

make independent expenditures. 424 U.S. at 80-82. The disclosure provision 

required “[e]very person (other than a political committee or candidate)” to file 

reports with the FEC disclosing certain information in connection with their 

independent expenditures. Id. at 74-75. According to the Court, this provision 

served the interests of increasing “the fund of information concerning those who 

support the candidates” by requiring even those who do not make contributions to 

candidates to report. Id. at 81. Independent-expenditure disclosures were 

appropriate, according to the Court, because they were “narrowly limited to those 

situations where the information sought has a substantial connection with the 

governmental interests sought to be advanced.” Id. 

The modern version of the provision upheld in Buckley is 2 U.S.C. § 434(c), 

which requires persons14 “other than political committees” to report the recipients 

 

14 The term “person” in 2 U.S.C. § 434(c) applies to organizations such as 

SpeechNow.org no less than to individuals. See 2 U.S.C. § 431(11). 

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of their independent expenditures in excess of $250 and the names of those 

individuals who provide more than $200 to help finance its independent 

expenditures. SpeechNow.org will fully comply with these disclosure provisions. 

In addition, SpeechNow.org will include disclaimers on its independent 

expenditures under 2 U.S.C. § 441d. 

As a result, for every independent expenditure that SpeechNow.org makes of 

more than $10,000 (or over $1,000 if made less than 20 days before an election), 

SpeechNow.org will disclose each contributor’s name and how much he or she 

contributed as well as the size of the independent expenditure, who it was paid to, 

and which candidate it supports or opposes. The disclosures will also verify that 

SpeechNow.org did not coordinate its expenditures with any candidate or political 

party or their agents. J.A. 687. The disclosures will be made no later than 48 

hours (or 24 hours if less than 20 days before an election) after the independent 

expenditure is made. 11 C.F.R. § 109.10. SpeechNow.org’s disclaimers will give 

the public SpeechNow.org’s name, address, and telephone number or World Wide 

Web address, and will indicate both that SpeechNow.org paid for the 

communication, that it was responsible for the content, and that the communication 

was not authorized by any candidate. 2 U.S.C. § 441d. 

SpeechNow.org’s compliance with these provisions will more than satisfy 

any governmental interest in disclosure. Indeed, a decade after Buckley was 

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decided, the Court held that disclosure under § 434(c) was the appropriately 

tailored option for a nonprofit group that made only independent expenditures. See

MCFL, 479 U.S. at 262. 

B. The FEC can offer no constitutionally legitimate reason to require 

speechnow.org to become a political committee 

The Supreme Court has held that political-committee status imposes serious 

burdens on the exercise of First Amendment rights by groups like SpeechNow.org. 

As the Court stated in MCFL about these requirements, 

Faced with the need to assume a more sophisticated organizational 

form, to adopt specific accounting procedures, to file periodic detailed 

reports, and to monitor garage sales lest nonmembers take a fancy to 

the merchandise on display, it would not be surprising if at least some 

groups decided that the contemplated political activity was simply not 

worth it. 

479 U.S. at 255 (plurality opinion); see also WRTL II, 551 U.S. at 477 n.9 (“PACs 

impose well-documented and onerous burdens, particularly on small nonprofits.”); 

Austin v. Mich. State Chamber of Commerce, 494 U.S. 652, 657-58 (1990) (same). 

It is fundamental that laws imposing significant burdens on First Amendment 

rights must be narrowly tailored. See WRTL II, 551 U.S. at 464 (“Under strict 

scrutiny, the Government must prove that [a challenged law] furthers a compelling 

interest and is narrowly tailored to achieve that interest.” (emphasis in original)); 

MCFL, 479 U.S. at 265 (stating that government must burden speech “only to the 

degree necessary to meet the particular problem at hand”); Blount v. SEC, 61 F.3d 

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938, 944 (D.C. Cir. 1995) (question for narrow tailoring is “whether less restrictive 

alternatives to the rule would accomplish the government’s goals equally or almost 

equally effectively”). As Plaintiffs demonstrate below, the requirements for 

political committees would impose a significant burden on their exercise of First 

Amendment rights without any constitutionally legitimate justification. 

1. Political-committee status imposes a serious burden on the 

exercise of First Amendment rights 

By joining together to speak out through SpeechNow.org, Plaintiffs are 

engaging in a practice that is “deeply embedded in the American political process.” 

Citizens Against Rent Control, 454 U.S. at 294. Since the earliest days of our 

Republic, Americans have banded together into associations to pursue their 

common political goals. See 1 Alexis de Tocqueville, Democracy in America 191 

(Phillips Bradley ed., Alfred A. Knopf 1994) (1848) (“In no country in the world 

has the principle of association been more successfully used or applied to a greater 

multitude of objects than in America.”). 

But despite the obvious importance of political associations, forming and 

operating a political committee to urge voters to elect or defeat federal candidates 

is vastly more burdensome than speaking out alone. Whereas one person can 

simply make his independent expenditures and then report them to the FEC, two or 

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more people who meet the definition of “political committee”15 are legally barred 

from doing so without first obtaining a tax ID number,16 opening a bank account 

for the committee,17 naming a treasurer,18 registering as a committee with the 

FEC,19 and then depositing money into the account and making all payments out of 

that account.20 See also MCFL, 479 U.S. at 252 (plurality opinion). 

Once registered, virtually all aspects of a group’s existence are dictated by 

FEC regulations. The treasurer of a political committee must deposit all 

contributions into its account within ten days. 11 C.F.R. § 103.3. He must keep 

photocopies of every contribution over $50 made by check, and he must keep 

receipts for all disbursements over $200. All of these records must be maintained 

for three years. J.A. 645-46. 

In order to track its expenses and contributions properly, the committee’s 

treasurer must make complex allocations of “in-kind” contributions. For example, 

if SpeechNow.org is considered a political committee, David Keating will have to 

determine the fair-market value of the use of his home as SpeechNow.org’s place 

 

15 A “political committee” is “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. § 431(4). 

16 11 C.F.R. § 103.2; J.A. 638. 

17 2 U.S.C. § 432(h). 

18 2 U.S.C. § 432(a). 

19 2 U.S.C. § 433(a). 

20 2 U.S.C. § 432(h)(1). These burdens and those that follow are described in 

greater detail in Plaintiffs’ statement of facts. 

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of operations—including an allocation of utilities like electricity—and report that 

value to the FEC. 

All of this information must then be reported in detail to the FEC. Political 

committees must file regular reports of all of their financial activity—meaning 

every penny that comes in and every penny that goes out. 2 U.S.C. § 434(a)-(b). 

This reporting is far more complicated than the reporting for individuals and 

groups that make independent expenditures. Compare 2 U.S.C. § 434(b), with 2 

U.S.C. § 434(c). Indeed, the instructions accompanying the reporting form for 

political committees are 10 times longer than the instructions for reporting 

independent expenditures as an individual or group. Compare J.A. 710-40, with 

J.A. 777-79. In contrast to independent-expenditure reporting, political 

committees must report continuously on either a monthly or quarterly basis even if 

they have no expenditures to report. 2 U.S.C. § 434(a)(4), (c). 

Moreover, the FEC regularly demands additional information from political 

committees and stands ready to audit them at any time. J.A. 630, 649, 1282. 

Political committees that are investigated can expect the investigations to last 

nearly 18 months. J.A. 594. Political committees must even ask the FEC for 

permission to terminate and, until it is granted they must continue to comply with 

all reporting obligations. 2 U.S.C. § 433(d). 

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These requirements not only make it extremely difficult to operate groups 

like SpeechNow.org. Leake, 525 F.3d at 296 (stating that “[i]t is no unfounded 

fear that one day the regulation of elections may resemble the Internal Revenue 

Code”). They also all but kill spontaneous speech by ad hoc associations in 

response to fast-moving political events. Cf. Shuttlesworth v. City of Birmingham, 

394 U.S. 147, 162 (1968) (Harlan, J., concurring) (observing that “timing is of the 

essence in politics . . . and when an event occurs, it is often necessary to have one’s 

voice heard promptly, if it is to be considered at all”); Ariz. Right to Life PAC v. 

Bayless, 320 F.3d 1002, 1008 (9th Cir. 2003) (“Restrict[ions] [on] spontaneous 

political expression place[] a severe burden on political speech . . . .”). And they 

threaten the privacy rights of an association’s members. See Brown v. Socialist 

Workers ‘74 Campaign Comm., 459 U.S. 87, 91-92 (1982); AFL-CIO v. FEC, 333 

F.3d 168, 178 (D.C. Cir. 2003). 

As the Court in MCFL made clear, the government is obliged to regulate in a 

manner that achieves its interests with as little burden on First Amendment rights 

as possible. 479 U.S. at 265. As stated above, the Supreme Court in both Buckley

and MCFL recognized that the independent-expenditure-disclosure provisions of 

§ 434(c) are the appropriately narrowly tailored methods of disclosure for those, 

like the Plaintiffs, who make only independent expenditures. See Buckley, 424 

U.S. at 80-82; MCFL, 479 U.S. at 262; see also MCFL, 479 U.S. at 266 

Case: 09-5342 Document: 1215999 Filed: 11/16/2009 Page: 63
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(O’Connor, J., concurring) (stating that requiring MCFL to become a political 

committee “do[es] [not] further the Government’s informational interest in 

campaign disclosure”). SpeechNow.org creates no concerns about corruption that 

would justify requiring Plaintiffs to register as a political committee. Cf. Buckley, 

424 U.S. at 56 (stating that the “[e]xtensive reporting, auditing, and disclosure 

requirements . . . facilitate the detection of illegal contributions”). 

2. SpeechNow.org’s “major purpose” does not justify treating 

it as a political committee 

Relying on dicta from MCFL, the FEC claims the Supreme Court has held 

that all groups with the “major purpose” of advocating the election or defeat of 

candidates—even those that only make independent expenditures—can be 

regulated as political committees. See Brief for the Federal Election Commission 

at 28, SpeechNow.org v. FEC, No. 08-5223 (D.C. Cir. Sept. 23, 2009) (“[S]hould 

MCFL’s independent spending become so extensive that the organization’s major 

purpose may be regarded as political activity, the corporation would be classified 

as a political committee.” (quoting MCFL, 479 U.S. at 262)). But MCFL issued no 

such holding—indeed, it could not have, as the FEC never argued that MCFL had 

a “major purpose” of federal campaign activity that triggered political-committee 

status. MCFL, 479 U.S. at 252 n.6; see also Akins v. FEC, 101 F.3d 731, 741 

(D.C. Cir. 1996) (en banc) (recognizing MCFL’s discussion of “major purpose” to 

be dicta), vacated on other grounds, 524 U.S. 11 (1998). 

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MCFL’s dicta about “major purpose” cannot be read as expanding the reach 

of political-committee regulation to any group simply because it spends the 

majority of its funds on independent expenditures. In arguing to the contrary, the 

FEC treats the term “major purpose” in much the same way that it treats the term 

“contribution”—as a formalistic bright line that obviates the need for any 

constitutional analysis whatsoever. 

MCFL itself demonstrates the folly of the FEC’s approach. In that case, the 

FEC argued for a bright-line rule that all corporations, even ideological nonprofits 

like MCFL, must speak only through a separate segregated fund that is regulated as 

a political committee. See 479 U.S. at 256-57. In other words, according to the 

FEC, groups could necessarily be treated as political committees simply because 

they carried the label “corporation,” regardless of whether they posed a threat of 

corruption. See id. 

The Court refused to allow the FEC’s desire for a bright line to serve as a 

permissible rationale for restricting MCFL’s speech. Instead, it took a functional 

approach that focused on MCFL’s specific characteristics in order to determine 

whether it raised concerns about corruption. Id. at 259. “It is not the case, 

however, that MCFL merely poses less of a threat of the danger that has prompted 

regulation. Rather, it does not pose such a threat at all. Voluntary political 

associations do not suddenly present the specter of corruption merely by assuming 

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the corporate form.” Id. at 263. Finding that MCFL posed no threat of corruption, 

the Court rejected the FEC’s exaltation of form over substance. Id. (“[T]he 

[FEC’s] rationale for restricting core political speech in this case is simply the 

desire for a bright-line rule.”). 

The FEC’s reliance on the MCFL dicta as controlling in this case treats that 

dicta as though it established yet another bright-line rule of precisely the sort that 

the Court rejected in MCFL. In short, having failed in its attempt to establish the 

term “corporation” as a substitute for constitutional analysis in MCFL, the FEC 

now attempts to have the term “major purpose” replace the constitutional analysis 

that the Court applied in MCFL. 

The FEC’s approach completely ignores the fact that laws that burden First 

Amendment rights must pass strict scrutiny. See WRTL II, 551 U.S. at 464. As 

shown above, the FEC cannot meet its burden here because SpeechNow.org will 

disclose in the same narrowly tailored manner as any individual or group that 

makes independent expenditures. The FEC’s approach also flies in the face of the 

Court’s most recent campaign-finance jurisprudence on as-applied challenges, 

because it would eliminate as-applied challenges to political-committee burdens 

that restrict the exercise of First Amendment rights. See WRTL II, 551 U.S. at 478 

(“A court applying strict scrutiny must ensure that a compelling interest supports 

each application of a statute restricting speech.”). 

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The Supreme Court’s reference to “major purpose” in MCFL cannot be 

interpreted to lead to that absurd result. The Court in MCFL relied on its previous 

use of the term “major purpose” in Buckley. 479 U.S. at 262. But Buckley did not 

hold that any group with a “major purpose” of campaign activity could 

constitutionally be required to become a political committee. Indeed, Buckley did 

not issue a constitutional holding with respect to that question at all. Buckley’s 

discussion of “major purpose” was designed to do the opposite—to narrow the 

definition of political committee so that it did not reach groups unless they were 

“under the control of a candidate or the major purpose of which is the nomination 

or election of a candidate.” 424 U.S. at 79. Indeed, the Court relied on the narrow 

construction that lower courts had given the definition of “political committee” 

precisely to avoid creating constitutional problems with that definition that would 

have resulted from applying it to “nonpartisan organizations.” Id. at 79 n.106.21 

The Court’s purpose in this discussion was avoiding constitutional problems, not 

 

21 The FEC itself recognizes that Buckley’s major-purpose test resulted from a 

statutory analysis intended “to avoid constitutional vagueness concerns.” See

Supplemental Explanation and Justification, Political Committee Status, 72 Fed. 

Reg. 5595, 5597 (Feb. 7, 2007). 

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resolving them.22 Thus, by citing to this discussion later in dicta in MCFL, the 

Court simply indicated that MCFL would meet the statutory definition of “political 

committee,” as narrowly construed by Buckley, if it had the major purpose of 

federal campaign activity. Accordingly, it was not holding that it would be 

constitutional to impose political-committee burdens on it and every other group 

with such a major purpose. 

Buckley’s approach to the constitutional questions it did resolve further 

demonstrates that the FEC’s use of “major purpose” is wrong. In Buckley, the 

Court engaged in a two-step process with respect to several of the challenges to 

FECA’s provisions. Thus, for instance, in addressing the challenge to expenditure 

limits and the disclosure provisions that applied to independent expenditures, the 

Court first narrowed the reach of the statutory provisions and then it determined 

whether, as construed, they were constitutional. See 424 U.S. at 39-51, 74-82. 

The FEC’s approach to “major purpose” focuses only on the first part of this 

analysis, the statutory construction, but entirely ignores the second, the 

 

22 Of course, merely because a court interprets a statute narrowly to avoid 

constitutional concerns does not mean that that court has concluded that the statute, 

so narrowed, is constitutional in every application. To the contrary, courts create 

such saving constructions specifically “to avoid decision of constitutional 

questions.” United States v. Thirty-Seven (37) Photographs, 402 U.S. 363, 373 

(1971); see also Nw. Austin Mun. Util. Dist. No. One v. Holder, 129 S. Ct. 2504, 

2516 (2009) (applying saving construction and concluding that the validity of the 

challenged legislation “is a difficult constitutional question we do not answer 

today”). 

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constitutional analysis. But in neither Buckley nor MCFL did the Court resolve the 

second question—whether political-committee burdens can be imposed on groups 

like SpeechNow.org that make only independent expenditures and create no 

concerns about corruption. This is a narrow as-applied question that turns on the 

particular facts of this case and the burdens that political-committee status imposes 

on groups like SpeechNow.org. Cf. WRTL II, 551 U.S. at 469-77. It is absurd to 

suggest that the Court, having never faced this question, has preemptively decided 

it. Cf. McConnell, 540 U.S. at 192 (“We have long rigidly adhered to the tenet 

never to formulate a rule of constitutional law broader than is required by the 

precise facts to which it is to be applied, for the nature of judicial review constrains 

us to consider the case that is actually before us.” (internal quotation marks and 

citation omitted)). 

As Plaintiffs have shown above, the burdens of political-committee status 

are severe and a narrowly tailored alternative already exists. As a result, Plaintiffs 

should be entitled to satisfy any government interests in disclosure by reporting 

under § 434(c) and § 441d. 

3. The FEC’s “major purpose” argument conflicts with Davis 

v. FEC

Requiring SpeechNow.org to become a political committee merely because 

it spends all of its funds on express advocacy, rather than a portion, would also run 

afoul of Davis v. FEC. In Davis, the Supreme Court made clear that the 

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government may not burden First Amendment rights merely because those rights 

are exercised robustly. See 128 S. Ct. at 2772. Davis involved a challenge to 

BCRA’s so-called “Millionaire’s Amendment,” which imposed lower contribution 

limits on candidates who financed their own campaigns than on their opponents. 

128 S. Ct. at 2766-67. As the Supreme Court recognized, the amendment’s 

discriminatory fundraising limits effectively punished candidates for spending their 

own money on their own campaign speech. Davis, 128 S. Ct. at 2771-72. The 

Court thus held the provision unconstitutional because it “[did] not provide any 

way in which a candidate [could] exercise [the] right [to make unlimited personal 

expenditures] without abridgement.” Id. at 2772. 

The political-committee burdens that apply to SpeechNow.org are directly 

analogous. As with the right in Davis, the Supreme Court has held that individuals 

and groups have an unlimited right to make independent expenditures that support 

or oppose candidates. See, e.g., NCPAC, 470 U.S. at 493-96. But if Plaintiffs 

exercise that right by spending most of their collective funds on express advocacy, 

they will trigger political-committee status, because their major purpose will at that 

point become campaign advocacy. 

Just as the candidate in Davis was put to an unconstitutional choice, so 

SpeechNow.org must either spend less than half of its funds on independent 

expenditures or it must endure the burdens of political-committee status. The FEC 

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must leave open a path for Plaintiffs to exercise their rights without suffering this 

burden. That less burdensome path is § 434(c) and § 441d. 

III. If Plaintiffs Are Compelled to Register As a Political Committee, They 

Should Be Made to Do So Only After Making Independent 

Expenditures 

Plaintiffs’ fifth certified question asks when SpeechNow.org must register as 

a political committee if it must register. The FEC requires groups to register as 

political committees even before they make any expenditures for express 

advocacy. See J.A. 573-74. Thus, before they take any action whatsoever that 

could influence the outcome of an election, the FEC requires them to register as 

political committees and be subjected to the onerous regulatory requirements for 

political committees. 

For SpeechNow.org, that would mean David Keating would have to begin 

complying with the political-committee regulations as soon as he received more 

than $1,000 in contributions but before he even knew if he would have sufficient 

funds to run the ads the group would like to run. For the reasons explained above, 

this requirement imposes a pointless burden on groups like SpeechNow.org that 

serves no legitimate purpose. Accordingly, even if SpeechNow.org is required to 

register as a political committee, it should be required to do so only when it makes 

more than $1,000 in independent expenditures. 

Case: 09-5342 Document: 1215999 Filed: 11/16/2009 Page: 71
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CONCLUSION 

This Court should hold that the First Amendment prohibits the government 

from imposing contribution limits and the burdens of political-committee status on 

individuals who merely wish to pool their money to fund independent speech about 

political candidates. In short, the Plaintiffs should be permitted to do collectively 

what they are undoubtedly entitled to do individually. Accordingly, the Court 

should answer the first four of Plaintiffs’ certified questions in the affirmative and 

the fifth in the affirmative only if it is necessary to reach that question. 

 Respectfully submitted, 

/s/ Steven M. Simpson 

Steven M. Simpson (DC Bar No. 462553) 

William H. Mellor (DC Bar No. 462072) 

Robert Gall (DC Bar No. 482476) 

Robert P. Frommer (DC Bar No. 497308) 

Paul M. Sherman (DC Bar No. 978663) 

INSTITUTE FOR JUSTICE

901 N. Glebe Road, Suite 900 

Arlington, Virginia 22203 

Tel: (703) 682-9320 

Email: wmellor@ij.org, ssimpson@ij.org, 

bgall@ij.org, rfrommer@ij.org, psherman@ij.org 

Stephen M. Hoersting 

Bradley A. Smith 

CENTER FOR COMPETITIVE POLITICS

124 W. Street South, Suite 201 

Alexandria, Virginia 22314 

Tel: (703) 894-6800 

Email: shoersting@campaignfreedom.org, 

BSmith@law.capital.edu 

Attorneys for Plaintiffs

Case: 09-5342 Document: 1215999 Filed: 11/16/2009 Page: 72
CERTIFICATE OF COMPLIANCE 

This brief complies with the type-volume limitation of Federal Rule of 

Appellate Procedure 32(a)(7)(B) because this brief contains 13,909 words, 

excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). 

This brief complies with the typeface requirements of Federal Rule of 

Appellate Procedure 32(a)(5) and the type-style requirements of Federal Rule of 

Appellate Procedure 32(a)(6) because this brief has been prepared in a 

proportionally spaced typeface using Microsoft Word in 14-point Times New 

Roman font. 

 /s/ Steven M. Simpson

 Steven M. Simpson 

 Counsel for Plaintiffs 

Case: 09-5342 Document: 1215999 Filed: 11/16/2009 Page: 73
CERTIFICATE OF FILING AND SERVICE 

 I hereby certify that on this 16th day of November, 2009, I caused this Brief 

of Appellants, Statutory Addendum and Joint Appendix to be filed electronically 

with the Clerk of the Court using the CM/ECF System. 

I further certify that on this 16th day of November, 2009, I filed with the 

Clerk’s Office of the United States Court of Appeals for the District of Columbia 

Circuit, via hand delivery, the required number of copies of this Brief of 

Appellants, Statutory Addendum and Joint Appendix, and further certify that I 

served, via UPS Ground Transportation, the required number of said Brief to the 

following: 

Vivien Clair 

David Kolker 

Federal Election Commission 

999 E Street, N.W. 

Washington, D.C. 20463 

(202) 694-1650 

Counsel for Appellee 

 /s/ Steven M. Simpson

 Steven M. Simpson 

 Counsel for Plaintiffs 

Case: 09-5342 Document: 1215999 Filed: 11/16/2009 Page: 74