No. 14-__ 

IN THE 

QCourt of tbt 'mnittb 

STOP THIS INSANITY, INC., et al., 

Petitioners, 

v. 

FEDERAL ELECTION COMMISSION, 

Respondent. 

On Petition for a Writ of Certiorari to the 

United States Court of Appeals 

for the District of Columbia Circuit 

PETITION FOR A WRIT OF CERTIORARI 

PATRICIA E. ROBERTS 

WILLIAM & MARY LAW 

SCHOOL APPELLATE AND SUPREME COURT CLINIC 

P.O. Box 8795 

Williamsburg, VA 23187 

Telephone: 757-221-3821 

DAN BACKER 

DB CAPITOL STRATEGIES 

PLLC 

203 South Union Street 

Suite 300 

Alexandria, VA 22314 

Telephone: 202-210-5431 

*Counsel of Record 

TILLMAN J. BRECKENRIDGE* 

TARA A. BRENNAN 

REED SMITH LLP 

1301 K Street, NW 

Washington, DC 20005 

Telephone: 202-414-9200 

Facsimile: 202-414-9299 

tbreckenridge@reedsmith.com 

Counsel for Petitioner 
1 

QUESTIONS PRESENTED 

1. Whether a political committee that makes 

highly restricted direct contributions has a First 

Amendment right to engage in unrestricted noncontribution activities through a separate and 

segregated non-contribution account. 

2. Whether the First Amendment forbids a 

government from restricting political speech based 

on the disclosure interest-an interest in providing 

the electorate with information about the sources of 

election-related spending-including when a more 

narrowly tailored remedy is available. 
PROCEDINGS 

This Insanity, Inc., Stop 

e Leadership Fund, and 

ere plaintiffs and appell

ederal Election Commis

nd appellee below. 

111 

TABLE OF CONTENTS 

Page 

QUESTIONS PRESENTED ....................................... i 

PARTIES TO THE PROCEDINGS ........................... ii 

TABLE OF AUTHORITIES ....................................... v 

OPINIONS BELOW ................................................... 1 

JURISDICTION ......................................................... 1 

STATUTORY PROVISIONS INVOLVED ................ 1 

INTRODUCTION ....................................................... 1 

STATEMENT OF THE CASE ................................... 4 

REASONS FOR GRANTING THE WRIT ............... 12 

I. THE CIRCUITS ARE INTRACTABLY 

DIVIDED ON WHETHER A PAC THAT MAKES RESTRICTED DIRECT 

CONTRIBUTIONS MAY ENGAGE IN 

UNRESTRICTED NON-CONTRIBUTION 

ACTIVITIES WITH A SEPARATE 

ACCOUNT ......................................................... 13 

A. The D.C. And Second Circuits Directly 

Conflict With The Fifth And Tenth 

Circuits On Whether Hybrid PACs Can 

Be Prohibited ................................................. 14 

B. The Anticorruption And Disclosure 

Interests Do Not Justify Restricting 

Non-Coordinated Spending And 

Soliciting For Non-Contribution 

Expenditures .................................................. 20 
lV 

RCUIT'S DECISION 

WITH THIS COURT'S 

N CITIZENS UNITED THAT 

AMENDMENT PROHIBITS 

SPEECH RESTRICTIONS 

ORGANIZATIONAL FORM ......... 25 

PRESENTS QUESTIONS OF 

AL IMPORTANCE THAT 

 SETTLED BY THIS 

..................................................... 32 

...................................................... 35 

ion of the 

 Court of Appeals for the 

umbia Circuit (Aug. 5, 

..................................................... 1a 

ion of the United States 

 For The District of 

v. 6, 2012) .................................. 15a 

tory and Regulatory 

olved .......................................... 71a 

v 

TABLE OF AUTHORITIES 

Page(s) 

Cases 

Alabama Democratic Conference v. 

Broussard, 541 F. App'x 931 (11th Cir. 

2013) ..................................................... 14, 16, 18, 19 

American Tradition Partnership v. 

Bullock, 132 S.Ct. 2490 (2012) .............................. 21 

Arizona Free Enterprise Club's Freedom 

Club PAC v. Bennett, 131 S. Ct. 2806 

(2011) ...................................................................... 27 

Austin v. Michigan Chamber of 

Commerce, 494 U.S. 652 (1990) ............................. 29 

Carey v. FEC, 791 F.Supp.2d 121 (D.D.C. 

2011) ..................................................................... 7, 8 

Catholic Leadership Coalition of Texas v. 

Reisman, 2014 WL 3930139 (5th Cir. 

Aug. 12, 2014) ................................................ passim 

Citizens Against Rent Control v. Berkley, 

454 u.s. 290 (1981) .......................................... 23, 24 

Citizens United v. FEC, 558 U.S. 310 

(2010) .............................................................. passim 

FEC v. National Conservative Political 

Action Committee, 470 U.S. 480 (1985) ................ 27 

First National Bank of Boston v. Bellotti, 

435 u.s. 765 (1978) ................................................ 25 

Freedman v. Maryland, 380 U.S. 51 

(1965) ...................................................................... 34 
Vl 

BLE OF AUTHORITIES 

(CONTINUED) 

ana's Future v. 

 of Ethics, 2014 WL 

 La. May 2, 2014) ............................ 13 

 530 U.S. 703 (2000) ....................... 33 

71 F. Supp. 2d 1058 (D. 

......................................................... 15 

C, 540 U.S. 93 (2003) ..................... 31 

FEC, 134 S.Ct. 1434 

................................................. passim 

486 U.S. 414 (1988) ......................... 33 

a, 384 U.S. 214 (1966) ..................... 34 

Right to Life, Inc. v. 

d 274 (4th Cir. 2008) ................ 17, 18 

y of New Mexico v. King, 

 (lOth Cir. 2013) ............ 14, 15, 16,21 

l Federation of the Blind 

lina, Inc., 487 U.S. 781 

......................................................... 33 

ngton, 418 U.S. 405 

......................................................... 31 

nterprise v. Texas Ethics 

732 F.3d 535 (5th Cir. 

......................................................... 31 

ity of San Diego, 2012 

.D. Cal. Jan. 20, 2012) .................... 15 

 of Industrial 

, 335 U.S. 106 (1948) ...................... 34 

Vll 

TABLE OF AUTHORITIES 

(CONTINUED) 

Vermont Right to Life Committee Inc. v. 

Sorrell, 758 F.3d 118 (2d Cir. July 2, 

2014) ................................................................. 14, 17 

Wagner v. FEC, 717 F.3d 1007 (D.C. Cir. 

2013) ....................................................................... 10 

Statutes 

26 u.s.c. § 6104(d)(3) ............................................... 25 

52 u.s. c. § 30101(17) .................................................. 1 

52 u.s.c. § 30101(4) .................................................. 26 

52 U.S.C. § 30101(8) .................................................... 5 52 U.S.C. § 30104(a) .................................................... 7 52 U.S.C. § 30116(a)(l)(C) ........................................... 5 

52 u.s.c. § 30118(b) .................................................... 4 

52 u.s.c. § 30118(b)(2) ............................................... 5 

52 U.S.C. § 30118(b)(4)(A)-(C) .................................... 5 

Regulations 

11 C.F.R. § 100.19 ....................................................... 7 

11 C.F.R. § 102.14 ..................................................... 25 11 C.F.R. § 104.3 ....................................................... 24 

11 C.F.R. § 104.4 ......................................................... 7 

11 C.F.R. § 114.5 ....................................................... 24 
lll 

UTHORITIES 

INUED) 

uthorities 

RTING A PATH 

ITIAL 

OF ACTION 22, 

blic/resources/ 

AssessmentAnd 

......................................... 28 

tion for Final 

d in Response 

r. 19, 2010) ...................... 21 

o Present, 

s/resources/pac 

d Sept. 28, 

......................................... 32 

v. FEC: 

Political 

ain a Non

Oct. 5, 2011), 

s/press20 11120 

................................. 3, 7, 21 

y Politics 

m IRS They 

om/news/2014-

s-groups-get

te.html ............................. 28 

1 

PETITION FOR A WRIT OF CERTIORARI 

Petitioners Stop This Insanity, Inc. ("STII") and 

Stop This Insanity, Inc. Employee Leadership Fund 

("ELF') respectfully petition this Court for a writ of 

certiorari to review the judgment of the United 

States Court of Appeals for the District of Columbia 

Circuit in this case. 

OPINIONS BELOW 

The opinion of the D.C. Circuit is reported at 761 

F.3d 10 and is reproduced at page 1a of the appendix 

to this petition ("App."). The opinion of the District 

Court is reported at 902 F.Supp.2d 23 and 

reproduced at App. 15a. 

JURISDICTION 

The judgment of the D.C. Circuit was entered on 

August 5, 2014. App. 1a. This Court has jurisdiction 

pursuant to 28 U.S.C. § 1254(1). 

STATUTORY PROVISIONS INVOLVED 

The text of the relevant statutes is set forth in 

the appendix to this petition. App. 71a. 

INTRODUCTION 

This case presents questions of exceptional 

· importance on the political speech rights of the 

majority of all PACs. The Fifth Circuit recently 

opined that contributions designated solely for use in 

independent expenditures! by hybrid PACs "appears 

1 An "independent expenditure" means "an expenditure by a 

person-(A) expressly advocating the election or defeat of a 

clearly identified candidate; and (B) that is not made in concert 

or cooperation with or at the request of such candidate, the candidate's authorized political committee, or their agents, or a 

political party committee or its agents." 52 U.S.C. § 30101(17). 
2 

a coming campaign-finance law 

atholic Leadership Coal. of Tex. v. 

ic Leadership Coalition"), 2014 WL 

(5th Cir. Aug. 12, 2014). In that 

Circuit further deepened a circuit 

anced by the D.C. Circuit's decision 

nnected PAC-a political advocacy 

at is connected to another. 

h as a corporation or a labor union, 

direct contributions to candidates. 

ted PAC, is not required to disclose 

nds for operating expenses received 

ation to which it is connected. And 

eral Election Commission's (the 

nterpretation of campaign finance 

minor disclosure exemption allows 

o tell ELF that it cannot distribute 

nd an email to anyone outside of a 

-comprised mostly of its couple

 and their spouses-touting its 

d asking for funds to further spread 

ght to become a "hybrid PAC" by 

te bank account from that used to 

and expend amount- and source

from its restricted class. It would 

m outside its restricted class for that 

account2-consistent with the 

e term "non-contribution account," rather 

nt expenditure-only account" because the 

e latter term in referencing Independent 

ACs (colloquially known as "Super PACs") 

 in referring to the separate bank account 

t contributions into "for the purposes of 

3 

existing regulatory framework created by the Commission since Citizens United for precisely this 

activity-and would engage in only non-contribution 

expenditures. Even if ELF was to eschew the narrow 

disclosure exemption it receives, and announce every 

penny its connected organization, STII, gives itincluding contributions to its candidate-contribution 

activities-under the Commission's interpretation of 

relevant statutes, ELF still could not form this 

separate account to further its political speech. 

Here, the D.C. Circuit agreed with the Commission-joining the Second Circuit in a conflict with 

the Tenth Circuit and the Fifth Circuit over whether 

laws capping contributions to hybrid PACs for noncontribution expenditures and other restrictions on 

non-contribution activities are constitutionally 

permissible. 

Moreover, the D.C. Circuit upheld limitations 

involving constitutionally protected political speech 

rights of an organization, based on the court's 

wrongly-held belief that the organization's connected 

corporation is "an unrestrained vehicle" for unlimited 

speech. In so doing, it became the first federal 

financing independent expenditures, other advertisements that 

refer to a Federal candidate, and generic voter drives." FEC 

STATEMENT ON CAREY V. FEC: REPORTING GUIDANCE FOR 

POLITICAL COMMITTEES THAT MAINTAIN A NON-CONTRIBUTION 

ACCOUNT (Oct. 5, 2011), 

http://www.fec.gov/press/press2011120111006postcarey.shtml. 

Similarly, Petitioners use the terms "non-contribution 

expenditures," and "non-contribution activities," rather than 

"independent expenditures," and "independent expenditure 

activities," for continuity and definitional precision as these 

terms include independent expenditures as well as generic 

voter drives, etc. 
4 

to elevate the constitutionally 

of disclosure to a governmental 

n its own right, may justify a 

ech. This reasoning conflicts with a 

h Circuit, and, if allowed to stand, 

e power to grant a minor disclosure 

y individual or organization, and 

bility to speak, based solely on that 

ft. 

onnected PACs-constituting more 

l federally registered P ACs-are 

lly expressing their political views 

viduals, other PACs, corporations, 

 issue advocacy organizations can. 

vention is needed to put the issues 

 to provide guidance to the courts 

ade through a host of federal and 

limiting the speech of different 

rms-including hybrid PACs-rela

This case presents the appropriate 

ng that guidance. 

asons and those that follow, the 

ant the petition, and reverse the 

EMENT OF THE CASE 

d Its Effect On ELF's Speech: 

ral Election Campaign Act (the 

committee ("PAC") may register as 

called a separate segregated fund, 

known as a "connected PAC." 52 

.3 Connected PACs are connected 

, voting and election provisions located in 

 United States Code, including the Federal 

5 

to other organizations, such as corporations, labor 

unions, and membership or trade associations, and 

they are limited in how and from whom they may 

solicit political contributions, as well as in the 

content and character of their speech. See§ 30118.4 

A connected PAC cannot receive contributions 

from any entity, such as a corporation or union, that 

is not its connected organization. § 30118(a).5 The 

Act also prohibits a connected PAC from soliciting 

the general public; it may solicit only the statutory 

"restricted class" of its organization, a small subset of 

individuals related to the connected organization, 

like stockholders, members, and certain categories of 

employees. See § 30118(b)(4)(A)-(C). Contributions 

that a connected PAC may receive from individualseven those designated for non-contribution 

activities-are subject to the same restriction on 

contributions to any "traditional" PAC that may use 

them for candidate-contribution purposes: a cap of 

$5,000 a year. 52 U.S.C. § 30116(a)(1)(C). Using the 

funds acquired from the restricted class, connected 

PACs can engage in any political spe.ech, including 

making campaign contributions subject to the 

Election Campaign Act, were transferred to Title 52. No 

statutory text was altered. The new citations are used herein. 

4 In relevant part, a "contribution" includes "any gift, 

subscription, loan, advance, or deposit of money or anything of 

value made by any person for the purpose of influencing any 

election for Federal office." See§ 30101(8). 

5 The connected entity may pay for the establishment, 

administration, and solicitation expenses of the connected PAC, 

but such payments are expressly excluded from the definition of 

"contribution" in the Act. See § 30118(b)(2). 
6 

ts. From these limited funds 

 limited selection of individuals, ELF 

cted to fund all of its speech, 

whether it was a candidate

 non-contribution expenditure. 

and other organizations-including 

ACs, unions, and corporations-are 

these burdens on funding for non

enditures. Moreover, PACs are sub

disclosure; whereas other organiza

 subject to disclosure only on the fin

orm of its independent expenditures. 

ckground: ELF is one of over 3,000 

. ELF's connected organization is 

elfare organization that operates as 

t, one of the nation's leading "Tea 

ations, and does not make any 

itures or contributions. ELF was 

ployees of STII to increase civic 

d promote their values. It does not 

of its expenditure activities with 

political party committees or their 

tly maintains a direct contribution 

bject to the limitations, prohibitions, 

equirements of the Act. It seeks to 

political speech on .relevant issues by 

arate non-contribution account to 

om the general public to engage in 

n expenditures from that separate 

. 28 (filed July 10, 2012). Plaintiff 

eeks to make contributions to ELF in 

t statutory limits for the sole purpose 

ELF's ability to engage in non7 contribution expenditures. Id. at 25, 42, 69-70. Thus, a "non-contribution account" would allow ELF to solicit and receive contributions from outside of its restricted class, in any amount, and from any permissible source and use those funds for non- contribution speech, but not to provide contributions to candidates. 6 ELF does not dispute that contributions and expenditures from this account would be subject to the reporting requirements at 52 U.S.C. § 30104(a), 11 C.F.R. § 100.19, and 11 C.F.R. § 104.4. Id. at 2. Nor does ELF assert that the statutory exemption from the definition of "contribution" for connected organization funds paid on behalf of the connected PAC necessarily extends to non-contribution accounts. Id. at 12. The traditional or "restricted class" bank account would continue to be used for directly contributing to federal candidates. It also would continue to be subject to the broad restrictions on solicitation to only the restricted class, existing amount and source limits, and regular reporting requirements. Id. 9, 23. After this Court's decision in Citizens United v. FEC, 558 U.S. 310 (2010), and the Commission's consent settlement in Carey v. FEC, 791 F.Supp.2d 121 (D.D.C. 2011),7 ELF believed that its First Amendment rights permit it to operate a "hybrid" PAC-one with a restricted account and a separate non-contribution account. But ELF believed that it risked prosecution under the Act if it solicited contributions from outside the restricted class, even 6 Non-contribution accounts also are commonly referred to as "Carey accounts" by the regulated community. 7 See FEC STATEMENT ON CAREYV. FEC, supra note 2. 
8 

 were solicited into and solely used 

egregated non-contribution account 

h existing regulations. To alleviate its 

 submitted an advisory opinion request 

ssion, AOR 2012-01. Id., Ex. A. The 

d whether "a connected PAC" may 

on-contribution account "to solicit and 

utions from the general public, corp

unions not subject to the restrictions of 

 30118(b)(4)(a)(i)] and [52 U.S.C. § 

]." Id. at 1, 4. The next month, the 

issued two opposing draft advisory 

isory Opinion A ("Draft N'), concluded 

d "establish a non-contribution account 

d accept unlimited contributions from 

ther political committees, corporations, 

anizations" in addition to STII and its 

ss, provided that ELF continued to 

e existing restrictions on soliciting 

, Ex. Bat 2. Draft A also looked to the 

recent consent judgment in Carey, 

that the Commission would no longer 

atory provisions that "prohibit non

olitical committees from accepting 

from corporations and labor 

 nor "limit the amounts permissible 

ontribute to such accounts." Id. at 6. 

nected PACs operate differently than 

 committees was immaterial to the 

y protected speech at issue. Even 

cted PACs can have their operating 

 the connected organization, Draft A 

the differences between the two 

 not create a different risk of quid pro 

9 

quo corruption or the appearance of corruption. Id. 

at 6-7. Accordingly, there was no compelling 

government interest in restricting ELF's ability to 

organize itself as a hybrid PAC that would operate 

one account to accept direct candidate-contributable 

funds from the restricted class, and a second, noncontribution account to receive unlimited 

contributions for independent expenditures. Id. at 8. 

Draft Advisory Opinion B ("Draft B") emphasized 

the differences between connected and non -connected 

PACs-in particular, the connected PAC's ability to 

have operating costs paid by the organization to 

which it was connected without disclosing such costs 

because Congress intentionally exempted them from 

the definition of contribution. Id., Ex. C at 6-8. 

Thus, the contribution restrictions purportedly were 

constitutionally permissible. Id. at 12. Draft B 

found the second issue, the solicitation prohibition, 

was moot in light of how it resolved the first. Id. at 

13. 

The Commission later certified that it failed on a 

vote of 3-3 to approve either of the advisory opinions. 

Id., Ex. D at 1. Accordingly, no four-vote, binding 

advisory opinion was issued, and ELF remained at 

risk of prosecution if it operated a non-contribution 

account. Id. at 35. Even the Commission itself is 

divided on this issue. 

Because of the Commission's failure to issue a 

binding advisory opinion, ELF abstained from speech 

during the 2012 election season in order to avoid 

prosecution. Due to its small restricted class and the 

Act's restrictions on its speech and association, ELF 

could not raise sufficient funds to run noncontribution expenditure campaigns. See id. 38. 
10 

eedings Below: In June 2012, ELF, 

ngary Inc.-as well as two individuals 

o make contributions designated for 

on expenditures in excess of current 

mits to ELFB-filed a complaint 

claratory and injunctive relief to 

ommission from enforcing portions of 

ied to them. 

d for a preliminary injunction shortly 

e Pl.'s Mot. Prelim. Inj. (filed July 18, 

sponse, the Commission moved for 

matter of law. See Def.'s Mot. Dismiss 

2012). 

ber 6, 2012, the district court disposed 

ns through an order denying ELF's 

reliminary injunction and granting the 

motion to dismiss. App. 15-70a. The 

ed it was "not the [c]ourt's prerogative 

e authority of' the Supreme Court's 

tizens United, but relying heavily on 

s' "piercing dissent" in Citizens United, 

]hen a single entity is allowed to make 

nd direct contributions and unlimited 

expenditures, keeping the bank 

hose two purposes separate is simply 

 overcome the appearance that the 

uals were Todd Cefaratti, Director and Officer 

II and a member of the restricted class; and 

member of the general public. See Compl. 

. These individuals no longer are parties to 

.C. Circuit held that it lacked jurisdiction over 

they "were not made through the en bane 

ess prescribed in 2 U.S.C. § 437h." App. 5a n.1 

FEC, 717 F.3d 1007, 1016 (D.C. Cir. 2013)). 

11 

entity is in cahoots with the candidates and parties 

that it coordinates with and supports." App. 54-55a, 

64a; see also App. 47a, 34-35a n.l3. The court 

pushed further, stating that the reasoning 

underlying constitutional protection for hybrid PACs 

"is na!ve and simply out of touch with the American 

public's clear disillusionment with the massive 

amounts of private money that have dominated the 

political system, particularly since Citizens United." 

App.55a. For that reason, it ruled that the 

contribution and solicitation restrictions do not 

violate the First Amendment, as applied to ELF. 

App. 67 -68a. 

ELF timely filed a notice of appeal on January 2, 

2013. On August 5, 2014, the D.C. Circuit ruled in 

favor of the Commission, holding that ELF had no 

right to speak due to the connected PAC form being a 

purported "statutory artifact," and the purported fact 

that its connected organization, STII, "is already 

capable of sweeping solicitation" and "unrestrained" 

speech." App. 13a, 2a. The court dismissed the fact 

that ELF is a separate corporation with its own free 

speech rights, or that STII has a right not to speak, 

and even applied a lower level of scrutiny based on 

its belief that there no longer is a practical need to 

organize in this way. App. lOa ("this idiosyncratic 

and outmoded congressional arrangement is not 

deserving of the closest sort of scrutiny"). Thus, the 

court determined the constitutional political speech 

rights of an organization based on its wrongly-held 

belief that the organization's choice of form is not a 

practical vehicle for speech. 
12 

S FOR GRANTING THE WRIT 

presents critical issues for review on 

its are intractably divided. First, the 

vided on whether segregated non

accounts sufficiently address any 

rationale for limiting the non

tivities of hybrid PACs. Second, the 

divided on whether a disclosure 

ate from its permissible use as a tool 

ion in providing the electorate with 

bout the sources of election-related 

fies restrictions on hybrid PACs' non

tivities, and ultimately that of other 

forms. 

the D.C. Circuit's decision conflicts 

rt's decision in Citizens United and 

e government cannot restrict political 

e of the speaker's organizational 

ilarly, it conflicts with this Court's 

itizens United that non-contribution 

and their attendant fundraising 

t implicate the anticorruption interest 

of law. Lastly, the D.C. Circuit's 

he anticorruption interest to include 

tionale a disclosure interest runs 

er to this Court's decision in Citizens 

hers that the anticorruption interest is 

 pro quo corruption. 

13 

I. THE CIRCUITS ARE INTRACTABLY DIVIDED ON WHETHER A PAC THAT MAKES 

RESTRICTED DIRECT CONTRIBUTIONS 

MAY ENGAGE IN UNRESTRICTED NONCONTRIBUTION ACTIVITIES WITH A 

SEPARATE ACCOUNT. 

Citizens United resolved the right of 

corporations, unions, nonprofits, and other 

associations to make non-contribution expenditures 

without limits as to their source and amount. 

Citizens United, 558 U.S. at 345, 364-65. Courts 

after Citizens United then addressed the next logical 

question: whether limitations on contributions to 

organizations that make only non-contribution expenditures are constitutional. The courts uniformly 

responded by striking down such restrictions. See 

Fund For La.'s Future v. La. Bd. of Ethics, 2014 WL 

1764 781, at *7 (E.D. La. May 2, 2014) (cataloguing 

cases); see also McCutcheon v. FEC, 134 S.Ct. 1434, 

1442 n.2 (2014) ("A 'Super PAC' is a PAC that makes 

only independent expenditures . . . . The base and 

aggregate limits govern contributions to traditional 

PACs, but not to independent expenditure PACs."). 

Now, as recently forewarned by the Fifth Circuit, 

contributions designated for use in non-contribution 

expenditures by hybrid PACs to accounts restricted 

for that purpose "appears destined to be a coming 

campaign-finance law battleground." Catholic Leadership Coalition, 2014 WL 3930139, at *25. This 

case is that prediction realized. 

The lines drawn by the circuits are twofold. 

First, the circuits are divided on whether the 

existence of a segregated non-contribution account 

eliminates the government's interest in preventing 
14 

arent corruption (the "anticorruption 

ether limited to quid pro quo 

 broadly construed as including 

held by the court below. Compare 

rty of N.M. v. King ("Republican Party 

), 741 F.3d 1089, 1097-1101 (lOth Cir. 

Right to Life Comm., Inc. v. Sorrell 

ht to Life"), 758 F.3d 118, 140-45 (2d 

14); and Stop This Insanity, App. 12-

he circuits are divided on whether the 

erest justifies restrictions on hybrid 

tribution activities. Compare Catholic 

alition, 2014 WL 3930139, at *15-16 

mocratic Conference v. Broussard 

mocratic Conference"), 541 F. App'x 

h Cir. 2013) with Stop This Insanity, 

 D.C. and Second Circuits Directly 

flict with the Fifth and Tenth 

cuits on Whether Hybrid PACs 

 Be Prohibited. 

C. Circuit's decision aligns with the 

 in deepening a direct conflict with the 

s decision in Republican Party of New 

e Fifth Circuit's decision in Catholic 

alition that laws capping contributions 

ution accounts of hybrid PACs and 

ns are constitutionally impermissible. 

 Circuit in Republican Party of New 

ed the constitutionality of state laws 

he solicitation, contribution, and 

funds greater than $5,000 to PACs

rid PACs-that were designated for 

on expenditures. 741 F.3d at 1091. 

15 

Granting the plaintiffs' preliminary injunction, the 

court expressly rejected the district court's ruling in 

this case that a hybrid PAC's use of separate bank 

accounts for direct contributions and noncontribution expenditures was insufficient to 

overcome the appearance of quid pro quo corruption. 

Id. at 1101 ("Stop This Insanity does not offer a 

compelling rationale why combining two activities, 

neither of which by itself is corrupting, into a single 

entity suddenly increases the risk of real or apparent 

quid pro quo corruption."). 

The court ruled that after Citizens United, a 

hybrid PAC's "direct contribution does not alter the non-coordinated nature of its independent 

expenditures; there still must be some attendant 

coordination with the candidate or political party to 

make corruption real or apparent." Id.9 The court 

also reasoned that in any event, the government's anticorruption interest with respect to hybrid PACs 

was satisfied through both direct contribution limits 

and anti-coordination laws. Id. at 1097, 1101. 

In its opinion, the Tenth Circuit also disagreed 

with the Eleventh Circuit's approach-in an 

unpublished disposition-of treating corruption as a 

fact based inquiry: "Citizens United did not treat 

corruption as a fact question to be resolved on a caseby-case basis. Instead, the Court considered whether 

9 See also Lair v. Murry, 871 F. Supp. 2d 1058, 1068 (D. Mont. 

2012) (striking down state statute that prevented corporations 

from making contributions to hybrid PACs designated for 

independent expenditures); Thalheimer v. City of San Diego, 

2012 WL 177414, at *13 (S.D. Cal. Jan. 20, 2012) (striking 

down contribution limit as it applied to contributions to hybrid 

PACs designated for independent expenditures). 
16 

peech is the type that poses a risk of 

corruption or the appearance thereof." 

4 (citing Citizens United, 558 U.S. at 

her, the court rejected the Eleventh 

estion that hybrid PACs could pose a 

f circumvention of individual contri

because that scenario "concerns only 

er the PAC's agenda. It does not affect 

vailable in the PAC's hard-money 

h is subject to strict restrictions on the 

ay raise from a single donor and 

ingle candidate." Id. at 1102 n.9. 

 Circuit, in Alabama Democratic Conference 

ed whether a ban on transfers between PACs 

onal as applied to a hybrid PAC that wanted to 

m other PACs, which it would then deposit into 

k account used only for non-contribution 

1 F. App'x at 932. The court held that in the 

nge, whether separate accounts eliminated all 

rns was a question of fact and the state had 

ent evidence below to withstand summary 

manded the case. Id. at 934-36. In so holding, 

 that stage of the proceedings, Citizens United 

 the law unconstitutional because "[i]n 

 on independent expenditures, Citizens United 

ed the independent, non-coordinated nature of 

ures, which alleviates concerns about 

at 935. Thus, the court reasoned, "[w]hen an 

ages in independent expenditures as well as 

utions ... its independence may be called into 

cerns of corruption may reappear. At the very 

may believe that corruption continues to exist, 

 of separate bank accounts, because both 

ntrolled and can be coordinated by the same 

17 

Similarly, the Fifth Circuit in Catholic 

Leadership Coalition considered facial and as applied 

challenges to state laws banning a type of state PAC, 

which made both non-contribution expenditures and 

direct contributions, from exceeding $500 in 

contributions and expenditures until sixty days after 

it appointed a treasurer. Id. at *1-5. Relying 

primarily on Citizens United and McCutcheon, the 

court struck down the 60-day, 500-dollar limit 

because it did not directly combat corruption and 

rejected the state's arguments that it was properly 

tailored because interested speakers had other 

opportunities for speaking during the 60-day period. 

Id. at *14, *16-*18 & n.27. Similarly, the court held 

that whatever disclosure interest the state had, it 

was insufficient to justify the limitation. Id. at *15. 

The court also questioned if the D.C. Circuit's 

expansion of the anticorruption interest to include 

disclosure in this case "is permissible at all," but held 

that in any event, it was not properly tailored as the 

state could address any "loopholes" by strengthening 

its disclosure requirements. Id. 

The Second Circuit went the other way. In 

Vermont Right to Life, the court analyzed an asapplied challenge to a state law setting a $2,000 

limit on contributions to PACs from a single source 

in any two-year general election cycle. 758 F.3d at 

139. Mter finding that the PAC was a de facto 

hybrid PAC and not a true independent expenditure 

only PAC because it was enmeshed financially and 

organizationally with another PAC that made direct contributions,ll the court, citing the district court's 

11 But seeN. Carolina Right to Life, Inc. v. Leake, 525 F.3d 274 

(4th Cir. 2008). In Leake, the Fourth Circuit rejected the state's 
18 

 held that restrictions on all hybrid 

be justified because having separate 

hile potentially relevant, "does not 

dinated expenditures-whereby funds 

coordination with the candidate." 758 

45. 

Circuit's decision below similarly held 

ons on solicitations and contributions 

prohibit a PAC from creating a non

account. The court reasoned that the 

orm a connected PAC subject to these 

was purely voluntary and an attempt to 

ure requirements. App. 8-10a; see also 

Conflating the rights of STU and ELF, 

ted that nothing prevented STU from 

ELF's behalf or restricted amount or 

hich STU could spend money. App. 7-

 process, the D.C. Circuit's decision 

a second circuit split. The decision 

 the Fifth Circuit's holding in Catholic 

Coalition, and the Eleventh Circuit's 

abama Democratic Conference that the 

nterest cannot justify restrictions on 

nt that a PAC was not actually an independent 

mmittee because it was "closely intertwined" 

ACs. Rather, even if it "share[s] staff and 

s sister and parent entities, it is independent as 

" Id. at 294 n.8. The court also recognized that 

ssentially requesting it to pierce the corporate 

ine[d] to do so particularly absent any evidence 

ffs are abusing their legal forms or any legal 

 considers [political committees] and their 

oration as identical entities." Id. (quotation and 

 

19 

funds given to hybrid PACs for non-contribution 

expenditures. See App. 12-13a. 

The district court here had relied on Justice 

Stevens's dissent in Citizen's United to find that the 

anti-corruption interest justified the restrictions at 

issue here. App. 47a, 55-56a. The Commission itself 

abandoned that rationale on appeal, instead arguing 

that the disclosure interest justified restrictions on 

solicitation and contributions. The D.C. Circuit 

agreed, ruling in direct conflict with this court that 

"the evolving technological and political landscape 

has altered the scope of the anticorruption interest" 

such that it is not so "anemic" as to be limited to quid 

pro quo corruption. App. 12a. It then characterized 

McCutcheon as "intimat[ing] disclosure is an obvious 

antidote to the anticorruption rationale," and defined 

that rationale with unprecedented breadth in 

holding that the disclosure interest falls within it. 

See App. 12a. 

Using this newly fashioned interest, the court 

justified restrictions on ELF's non-contribution 

activities because striking them down would "stifle 

the government's ability to achieve [its] endeavor" in 

"protecting the First Amendment rights of the public 

to know the identity of those who seek to influence 

their vote." App. 13-14a. But that reasoning stood 

against the Eleventh Circuit's in its unpublished 

disposition. Alabama Democratic Conference, 541 F. 

App'x at 933 (this Court only has upheld disclosure 

requirements because they are "a less restrictive 

alternative to more comprehensive regulations of 

speech" and "has never held that a government 

interest in transparency is sufficient to justify limits 

on contributions or expenditures."). And the Fifth 

Circuit followed suit, in its precedential decision, 
20 

sagreeing with the D.C. Circuit's 

the disclosure interest here. Catholic 

oalition, 2014 WL 3930139, at *15. 

undamental disagreements exist among 

circuits regarding the constitutionality 

s on hybrid PACs' non-contribution 

is level of uncertainty and patchwork 

 protections for core political speech 

cuits confirm the urgent need for this 

ention. 

 Anticorruption And Disclosure 

rests Do Not Justify Restricting 

n-coordinated Spending And 

citing For Non-Contribution 

enditures. 

United and McCutcheon clarified that 

 one governmental interest that may 

tions on political speech in connection 

paign finance regime: preventing the 

f, or actual, quid pro quo corruption. 

ed, 558 U.S. at 359; McCutcheon, 134 

-51. Mere ingratiation and access do 

Citizens United, 558 U.S. at 359-60; 

134 S.Ct. at 1441, 1452. In 

g between impermissible quid pro quo 

d mere ingratiation and access, the 

ment dictates that any uncertainty be 

vor of protecting political speech rather 

ing it. McCutcheon, 134 S.Ct. at 1451. 

rt has "consistently rejected attempts to 

paign speech based on other legislative 

d. at 1450. 

s United, the Court was unequivocal 

dent expenditures are by definition not 

21 

coordinated with candidates and as a matter of law 

cannot lead to the appearance of quid pro quo 

corruption. Id. at 357, 360; see also Am. Tradition 

P'ship, v. Bullock, 132 S.Ct. 2490, 2491 (2012) 

(striking down a state law banning corporations from 

making expenditures in connection with a candidate 

or a political committee that supports or opposes a candidate or political party). 

Under the logic of Citizens United, it follows-as 

even the Commission has recognizedl2_that (1) 

soliciting, receiving, and spending money to make 

non-contribution expenditures, while (2) 

independently making direct candidate contributions 

from a separate account that is separately funded 

and subject to amount and source restrictions does 

not risk the appearance of, or actual, quid pro quo 

corruption beyond the scope of the direct 

contributions themselves. 

But any risk of quid pro quo corruption posed by 

the direct contributions already is resolved by the 

direct contribution limits, anti-coordination laws, 

and anti-bribery laws. See Republican Party of New 

Mexico, 741 F.3d at 1101 ("combining two activities, 

neither of which by itself is corrupting, into a single 

entity [does not] suddenly increase the risk of real or 

12 Under current FEC enforcement policy, non-connected 

political committees and non-profit entities may engage in 

unrestricted independent expenditures and [for non-connected 

political committees] restricted direct contributions so long as 

they use separate accounts. See, e.g., FEC STATEMENT ON 

CAREY V. FEC, supra note 2; Explanation and Justification for 

Final Rules on Funds Received in Response to Solicitations, 75 

Fed. Reg. 13223, 13224 (Mar. 19, 2010). 
22 

d pro quo corruption"). Indeed, the 

ution limits themselves are merely a 

measure ''because few if any 

to candidates will involve quid pro quo 

" McCutcheon, 134 S.Ct. at 1458 

ens United, 558 U.S. at 357). Thus, 

n-contribution activities on top of these 

ophylaxis-upon-prophylaxis. 

 to the extent that the government's 

eventing corruption also can encompass 

hat prevent circumvention of laws that 

uption-e.g., contribution limits-the 

bank accounts, 13 their attendant 

equirements, and the other reporting 

for PACs ensure that contributions 

or non-contribution activities will be 

gly .14 

shorn of an anticorruption justification, 

constitutionally sufficient interest in 

ybrid PAC's non-contribution activities. 

losure interest fares no better in 

trictions on political speech. Although 

rcuit is correct that the Court in 

ecognized that disclosure requirements 

actual corruption and avoid the 

of corruption by exposing large 

 Court in McCutcheon proposed segregated, 

accounts as an alternative to restricting direct 

ough aggregate limits. Id. at 1458. 

e restrictions are not narrowly tailored to any 

on corruption interest because multiple 

st that do not stifle a hybrid PACs non

vities. See id. (detailing alternatives that are 

han aggregate limits on direct contributions). 

23 

contributions and expenditures to the light of 

publicity," 134 S.Ct. at 1459-60 (quotation and marks 

omitted), it did not hold that these financial 

transactions must be publicly disclosed-only that 

disclosure may be adequate and is a constitutionally 

permissible means to achieve the anti-corruption 

interest. Nor did it come close to suggesting that 

minor disclosure exemptions somehow justify 

otherwise-unconstitutional restrictions on political 

speech. 

The Court has sanctioned disclosure requirements because they are "a less restrictive alternative 

to flat bans on certain types or quantities of speech" 

and "do not impose a ceiling on speech." Id.; Citizens 

United, 558 U.S. at 369. See also Catholic 

Leadership Coalition, 2014 WL 3930139, at *15 n.25 

& 26 (questioning the permissibility of the D.C. 

Circuit's efforts to link disclosure requirements to 

the anticorruption interest and recognizing that 

disclosure laws "are generally meant to be an 

alternative to, and not necessarily a justification for, 

the firm limits on political speech set by expenditure 

limits). Indeed, the Court appears to have never 

held that it is constitutionally permissible to restrict 

contributions or expenditures simply by failing to 

require disclosure. 

To the contrary, in Citizens Against Rent Control 

v. Berkley, 454 U.S. 290 (1981), this Court rejected the government's assertion that an ordinance 

limiting contributions to PACs formed to support or 

oppose ballot measures submitted to the public was 

necessary as a prophylactic measure to make known 

the identity of supporters and opponents of the measures. Id. at 298-99. The Court reasoned: "The 

integrity of the political system will be adequately 
24 

ntributors are identified in a public 

 the amounts contributed; if it is 

legislation can outlaw anonymous 

Id. at 299-300. Accordingly, because 

ignificant state or public interest in 

e and discussion of a ballot measure," 

ontributions which in turn limit[ed] 

plainly impair[ed] freedom of 

were struck down. Id. 

event, the restrictions here are 

to whatever merit a purported 

est has in abridging ELF's speech as 

ly thing ELF need not report are the 

STII may pay on its behalf with 

irect contribution activities.15 But 

closes its entire operating budget, as 

profit corporation, to the IRS on its 

 or related forms. Every other dollar 

ursed in any way by ELF is disclosed. 

must report its non-contribution 

ke all other P ACs. And like the 

me at issue in Citizens Against Rent 

ust disclose contributions it receives 

luding contributor name, address, 

 name of employer. See 11 C.F.R. § 

 § 114.5. See also Citizens United, 

8 (detailing some of the disclosures 

Cs must make). Likewise, the 

ization's identity always is disclosed. 

sert that payments by STII for costs to solicit 

c for its non-contribution account and 

sarily within the scope of the exemption to 

ontribution;" a determination properly left to 

25 

ELF-like all connected PACs-is required to use 

the connected organization's name within its own 

name. See 11 C.F.R. § 102.14(c). 

That ELF must disclose the names of its 

contributors exposes that the D.C. Circuit's reliance on a purported disclosure interest is critically flawed. 

STII, as a 501(c)(4) nonprofit corporation, can accept 

unlimited amounts of donations but is not required 

to publicly disclose its donors. The Court recently 

recognized this very point in McCutcheon: "The 

existing aggregate limits may in fact encourage the 

movement of money away from entities subject to 

disclosure . . . . Individuals can, for example, 

contribute unlimited amounts to 501(c) 

organizations, which are not required to publicly 

disclose their donors." 134 S.Ct. at 1460 (citing 26 

U.S.C. § 6104(d)(3)). 

Thus, the D.C. Circuit's justification of the 

restrictions based on a disclosure interest and its 

admonishments that "[i]f the Fund wants to solicit 

freely, it must do so in the light" rings hollow. 

"Rhetoric ought not obscure reality." Citizens 

United, 558 U.S. at 355. 

II. THE D.C. CIRCUIT'S DECISION CONFLICTS WITH THIS COURT'S HOLDING IN 

CITIZENS UNITED THAT THE FIRST 

AMENDMENT PROHIBITS POLITICAL 

SPEECH RESTRICTIONS BASED ON 

ORGANIZATIONAL FORM. 

Citizens United is unequivocal in establishing 

that the government cannot impose speech-based 

restrictions because the speaker is an association 

rather than a corporation, a union, or an individual. 

Id. at 342-43; First Nat'l Bank of Boston v. Bellotti, 
26 

7 (1978) ("The inherent worth of the 

s of its capacity for informing the 

depend on the identity of its source, 

oration, association, union, or 

ut simply, after Citizens United, the 

nnot penalize "certain disfavored 

citizens" because they opt for a 

izational form. 558 U.S. at 356.16 

ples extend to connected PACs like 

mply a collection of STII's employees 

her seeking to engage in political 

y from STII and independently from 

or political parties. See § 30101(4) 

al committee). 

ircuit, however, wrongly refused to 

United to this case. First, the court 

itizens United by conflating ELF's 

rights with those of STII. See App. 

hat Citizens United is inapposite 

ing prevents the corporation from 

alf of the PAC; in fact the regulatory 

ally provides for such activity, albeit 

ched"). This is flat wrong.1 7 

ourt has thus only recognized one narrow 

e prohibition against identity-based 

the government performs a uniquely 

tion in limited settings, such as special 

the military, corrections systems, and public 

41 (cataloguing cases). 

haracterized Citizens United as "indicat[ing] 

unds were capable of speaking not unduly 

r various obligations" and that it never 

statutory scheme for segregated funds 

ech." App. 6-7a. That this Court did not 

ctions on connected PACs, however, is not 

27 

In Citizens United, this Court expressly 

recognized that a connected PAC is a separate 

association, distinct from its connected organization. 

558 U.S. at 337 ("A PAC is a separate association 

from the corporation."). Thus, the connected PAC's 

speech rights could not be imputed to its connected 

organization. Id. (the connected PAC's "exemption 

from [§30118's] expenditure ban ... does not allow 

corporations to speak"). And contrary to the D.C. 

Circuit's characterization of ELF and STII as "two 

parts of the same whole," see App.11a, they are not. 

Despite the D.C. Circuit's skepticism that ELF 

has "a distinct set of constitutional protections 

attendant to it," id., this Court has regularly 

reminded the lower courts that organizations such as 

connected PACs have First Amendment rights to 

engage in political speech. See, e.g., Citizens United, 

558 U.S. at 343; see also Catholic Leadership 

Coalition, 2014 WL 3930139, at *16 n.27. Indeed, 

the Court has expressly rejected the notion that a 

connected PAC's "form of organization or method of 

solicitation diminishes [its] entitlement to First 

Amendment protection." FEC v. Nat'l Conservative 

Political Action Comm., 4 70 U.S. 480, 494 (1985). 

Further, the D.C. Circuit's reliance on the fact 

that STII ''begot the fund" and does not exist wholly 

because it found them constitutionally permissible; rather, the 

restrictions on Citizens United's speech was the particular 

burden on political speech that the Court faced in Citizens 

United. See Ariz. Free Enter. Club's Freedom Club PAC v. 

Bennett, 131 S. Ct. 2806, 2820 (2011) (rejecting Arizona's 

attempt to distinguish Davis because "the reach of that opinion 

is limited to asymmetrical contribution limits. It is because 

that was the particular burden on candidate speech we faced in 

Davis."). 
28 

om STII could have dangerous, wide

cations. Under its reasoning, the 

ould restrict the speech of wholly

aries of corporations because they do 

ately from the control of the company 

m. And no PAC or other association of 

 exist separately from the desire of its 

speak. That STU may pay for ELF's 

and solicitation costs does not 

 into a mere conduit for STU's own 

it is irrelevant whether STU chooses 

much it chooses to speak, or why it 

ak or not speak. STII is a separate 

and its ability to speak is no more 

 restricting ELF's speech as does the 

k of any other company, person, or 

 

Circuit's second reason for finding 

ed inapposite fares no better. 

t refused to sanction what it 

TII does not want to speak and it should not 

. Its 501(c)(4) status was pending for more 

 during the time this case arose, which 

he IRS scandal that occurred from May 2012 

d is ongoing. See, e.g., Richard Rubin, Big

Groups Get Clarity From IRS They Hate, 

p://www. bloomberg.com/news/2014-02-19/big

oups-get-clarity-from-irs-they-hate.html. And 

4), it is subject to amorphous and confusing 

much political speech it may make before it 

empt status. See, e.g., DANIEL WERFEL, IRS, 

 FORWARD AT THE IRS: INITIAL ASSESSMENT 

ACTION 22, 24-25 (June 24, 2013), 

om/public/resources/documents/IRS_InitialAs 

OfAction-2013.pdf. 

29 

characterized as the "illogical conclusion" that 

Citizens United permits STU and its employees' to 

"do things the hard way''-namely, that instead of 

forming a non-connected PAC, they voluntarily 

choose a connected PAC despite knowing that 

subsidization of their operating costs would require 

them to trade their speech rights. App.8-9a. 

Citizens United is not inapposite merely because 

STII and its employees had the idea to form a 

connected PAC. Connected PACs do not cede their 

First Amendment rights simply by organizing in a 

way that allows them to receive operating expenses 

from another organization without disclosing the 

amount of operating expenses they receive. Rather, 

the court's reasoning otherwise is based on two 

flawed premises: (1) that Congress's grant of an 

exemption enables it to require fundamental speech 

rights as the "trade-off'; and (2) the availability of 

other avenues of speech for an association's constituent parts excuses the imposition of an 

unconstitutional speech burden. 

Connected P ACs are, to be sure, given a 

statutory exemption that Congress is under no 

obligation to confer. But so too are other associations 

and private individuals given all sorts of special 

advantages that the government need not confer, 

ranging from tax breaks to contract awards to public 

employment to outright cash subsidies. See Austin v. 

Mich. Chamber of Commerce, 494 U.S. 652, 680 

(1990) (Scalia, J., dissenting). And if the disclosure 

exemption creates an unfair advantage or something 

that "no political action committee has," see App. lOa, 

it is Congress's role, not the Judiciary's, to eliminate 

the "advantage" through methods that do not 

unnecessarily abridge the fundamental rights to 
30 

ociation to which connected PACs and 

ors are entitled. See McCutcheon, 134 

"If Congress agrees that [the ability of 

tees to transfer money freely] is 

 might tighten its permissive transfer 

so would impose a lesser burden on 

ent rights, as compared to aggregate 

tly ban contributions beyond certain 

rock constitutional principle that the 

nnot exact as the price of a benefit the 

First Amendment rights. Citizens 

.S. at 351 (internal quotation marks 

 also Catholic Leadership Coalition, 

0139, *16 n. 27 (rejecting the state's 

 because it grants special privileges to 

of PACs, it may regulate them as it 

out speech restrictions having to 

nstitutional scrutiny). But that is 

ffect of the D.C. Circuit's decision. 

not yet changed disclosure require

ected PACs in light of Citizens United. 

gressional inaction cannot justify the 

constitutional suppression of ELF's 

eech. 

y, under the D.C. Circuit's logic, the 

uld simply undo Citizens United and 

ech of corporations, labor unions, non

Cs and non-profit entities simply by 

minor disclosure exemptions. If the 

can strip constitutional rights by 

ortedly offsetting statutory benefits, no 

 from Congress's generosity. 

31 

Second, under Citizens United and others, the 

availability of other avenues of speech for an 

association's constituent parts does not excuse the 

imposition of an unconstitutional burden on 

organizations wanting to engage in speech. See, e.g., 

Spence v. Washington, 418 U.S. 405, 411, n.4 (1974) 

(per curiam) (Although a prohibition's effect may be 

"'minuscule and trifling,"' person "'is not to have 

the exercise of his liberty of expression in 

appropriate places abridged on the plea that it may 

be exercised in some other place"') (quotation 

omitted). Indeed, at the time Citizens United was 

decided, the Citizens United organization operated a 

connected PAC for a decade and made candidate 

contributions. But this did not prevent the Court 

from implicitly rejecting Justice Stevens' position 

that if Citizens United wanted to speak right before 

the primary, all it needed to do was "abjure business 

contributions or use the funds in its PAC, which by 

its own account is "one of the most active 

conservative PACs in America." 558 U.S. at 419 

(Stevens, J., dissenting). See also McConnell v. FEC, 

540 U.S. 93, 256 (2003) (Scalia, J., dissenting) 

(banning newspapers' use of the partnership form 

"would be an obvious violation of the First 

Amendment, and it is incomprehensible why the 

conclusion should change when what is at issue is 

the pooling of funds for the most important (and 

most perennially threatened) category of speech: 

electoral speech"); Tex. for Free Enter. v. Tex. Ethics 

Comm'n, 732 F.3d 535, 539 (5th Cir. 2013) (rejecting 

state's argument that "corporations have plenty of 

other opportunities for speech-they may speak 

themselves or create their own independent PACs" 

because this Court has expressly rejected that line of 
32 

g Citizens United, 558 U.S. at 357)). 

ations on connected PACs must rise 

 own merits. 

E PRESENTS QUESTIONS OF 

NAL IMPORTANCE THAT 

E SETTLED BY THIS COURT. 

ed PACs are a major avenue for 

h. Thus, the question of what 

hem are constitutionally allowable is 

mportant. As of June 30, 2014, of the 

gistered with the FEC, 3,042-over 

ected PACs.19 So, far from a "vintage 

this case presents relevant issues for 

f of the federally-registered PACs in 

 and any ruling by this Court will 

sands of PACs that hold this form. 

e, the D.C. Circuit's characterization 

ACs as "the hard way'' of engaging in 

olitical speech because they "are no 

y for independent expenditures," App. 

 not dilute their entitlement to 

er the First Amendment. That STII's 

untarily chose to organize ELF as a 

is not "doing things the hard way." It 

gs the "legal and congressionally 

." Their choice of that available mode 

 still protected: the First Amendment 

 "citizens must be able to discuss 

PAC Count - 1974 to Present, 

v/press/resources/paccount.shtml (last visited 

In contrast, only 1,701 are Non-connected 

ndependent Expenditure-Only PACs (Super 

e Non-connected PACs with Non-contribution 

33 

issues, great or small, through the means of 

expression they deem best suited to their purpose." 

Hill v. Colorado, 530 U.S. 703, 781 (2000); Riley v. 

Nat'l Fed'n of the Blind of N.C., Inc., 487 U.S. 781, 

790-791 (1988); Meyer v. Grant, 486 U.S. 414, 424 

(1988). 

And necessary or not, connected P ACs exist. 

Even if the lowly connected PAC organizational form 

is utilized, the association has political speech rights 

after Citizens United that cannot be infringed upon 

for naught. And after Citizens United, "any effort by 

the Judiciary to decide which means of communications are to be preferred for the particular type of 

message and speaker would raise questions as to the 

courts' own lawful authority." See 558 U.S. at 326. 

2. Without the Court's intervention, there is no 

clear answer as to whether laws that burden the 

non-contribution activities of these hybrid PACs are 

constitutional. The deadlock in the circuits-both on 

the constitutionality of restrictions on hybrid P ACs 

non-contribution activities and on the sufficiency of 

the disclosure interest-is clear evidence of the 

confusion. 

Further, currently, at least 15 states allow some 

form of a hybrid PAC, and the Commission similarly 

has consented to non-connected PACs making both 

restricted direct contributions and unrestricted noncontribution expenditures from separate segregated 

accounts. 20 Absent clarity from this court, improper 

interpretation will continue to chill, or risk chilling, 

20 These include Texas, New Mexico, Alabama, California, 

Delaware, Maine, Minnesota, Mississippi, Missouri, Montana, 

New Jersey, North Dakota, Oregon, Utah, and Virginia. 
34 

amental speech. See Citizens United, 

o U.S. v. Congress of Indus. Orgs., 335 

-40 (1948) (Rutledge, J., concurring) 

ion or prohibition touches [the making 

ontributions and expenditures], this 

bound to examine the restrictions and 

s own independent judgment whether 

ged within the Amendment's meaning. 

annot be surrendered to legislative 

ever weighty"). 

the rights at issue here are of the 

rtance, necessitating the Court's 

t is unassailable that political speech 

 object of First Amendment protection. 

v. Alabama, 384 U.S. 214, 218 (1966). 

 the FEC's business is to censor, there 

danger that [it] may well be less 

n a court . . . to the constitutionally 

rests in free expression."' Citizens 

U.S. at 355 (quoting Freedman v. 

 U.S. 51, 57-58 (1965)). ELF deserves 

n now because the right to engage in 

h is not a boon to be awarded or 

the grace of the Commission or 

her, it is a fundamental right of every 

ay not be restricted under the First 

absent an appropriately tailored 

at furthers a sufficient government 

35 

CONCLUSION 

For the foregoing reasons, the petition should be 

granted and the judgment below reversed. 

PATRICIA E. ROBERTS 

WILLIAM & MARY LAW 

SCHOOL APPELLATE AND 

SUPREME COURT CLINIC 

P.O. Box 8795 

Williamsburg, VA 23187 

Telephone: 757-221-3821 

DAN BACKER 

DB CAPITOL STRATEGIES 

PLLC 

203 South Union Street 

Suite 300 

Alexandria, VA 22314 

Telephone: 202-210-5431 

*Counsel of Record 

Respectfully submitted, 

TILLMAN J. BRECKENRIDGE* 

TARA A. BRENNAN 

REED SMITH LLP 

1301 K Street, NW 

Washington, DC 20005 

Telephone: 202-414-9200 

Facsimile: 202-414-9299 

tbreckenridge@reedsmith.com 

Counsel for Petitioner 

1a 

APPENDIX A 

UNITED STATES COURT OF APPEALS FOR 

THE DISTRICT OF COLUMBIA CIRCUIT 

No. 13-5008 

STOP THIS INSANITY INC EMPLOYEE 

LEADERSHIP FUND, ET AL., 

Plaintiff-Appellant, 

V. 

FEDERAL ELECTION COMMISSION, 

Defendants-Appellee. 

Appeal from the United States District Court 

for the District of Columbia. 

No. 1:12-cv-01140-Beryl A. Howell, District Judge. 

Argued: November 19, 2013 

Decided and Filed: August 5, 2014 

Before: BROWN and GRIFFITH, Circuit Judges; 

SENTELLE, Senior Circuit Judge. 

COUNSEL 

ARGUED: Tara A. Brennan, REED SMITH LLP, 

Washington, D.C., for Appellant. Erin Chlopak, 

FEDERAL ELECTION COMMISSION, Washington 

D.C., for Appellee 

ON BRIEF: Dan Backer, DB CAPITOL 

STRATEGIES, PLLC, Alexandria, Virginia, Patricia 

E. Roberts, WILLIAM AND MARY LAW SCHOOL, 
2a 

Virginia, Tillman J. Breckenridge, 

 LLP, Washington, D.C., for Appellant. 

man, Lisa J. Stevenson, Kevin Deeley, 

 Steve Hajjar, FEDERAL ELECTION 

N, Washington, D.C. for Appellee. 

delivered the opinion of the court. 

., concurs in the judgment. 

uit Judge. 

c musician Mick Jagger famously 

can't always get what you want. But if 

mes, well, you just might find, you get 

ed." The Rolling Stones, You Can't 

What You Want, on Let It Bleed (Decca 

9). Here, Stop This Insanity-a 

rganization-wants to remove the 

y-imposed binds on solicitation by 

egated funds, a type of political action 

nnected to a parent corporation. What it 

er, it already has-an unrestrained 

 form of that parent corporation, which 

 unlimited political spending. Because 

ete and less-onerous alternative exists, 

op This Insanity's invitation for us to 

hat has become a statutory artifact. 

I 

ral Election Campaign Act sets forth 

 for, inter alia, the participation of 

n the electoral process. See 2 U.S.C. § 

Beaumont, 539 U.S. 146, 149 (2003). 

 for example, cannot contribute directly 

3a 

to candidates for federal office or parties. 2 U.S.C. § 

441b(a). And before the Supreme Court's decision in 

Citizens United v. FEC, 558 U.S. 310 (2010), they 

could not use their treasuries to pay for independent 

expenditures, i.e., funds used to expressly advocate 

for or against a candidate. See 2 U.S.C. § 441b(a); see 

also id. § 431(17); Citizens U1tited, 558 U.S. at 320-

21, 372. But the pre- Citizens United landscape did 

not leave corporations completely exiled from the 

political process. Instead, the Act permitted limited 

corporate participation through separate segregated 

funds, a type ofpolitical action committee. 2 U.S.C. § 

441b(b)(2), 431(4)(B). "Though the treasuries of a 

corporation and its fund [were to be] kept separate, a 

corporation [could] nonetheless control how the 

separate segregated fund [spent] its money." FEC v. 

NRA, 254 F.3d 173, 179-80 (D.C. Cir. 2001) 

(citations omitted). A fund was "separate ... only in 

the sense that there [was] a strict segregation of its 

monies from the corporation's other assets." FEC v. 

Nat'l Right to Work Comm., 459 U.S. 197, 200 n.4 

(1982) (internal quotation marks omitted). 

These funds, however, came with strings 

attached. They were subject to organizational, 

recordkeeping, and reporting requirements. See 2 

U.S.C. §§ 432-34. The Act also placed constraints on 

the funds' ability to solicit. For one, the Act restricted 

whom the funds could solicit: only the connected 

company's stockholders, executives, and 

administrative personnel, in addition to their 

respective families. See id. § 441b(b)(4)(A)(i); see also 

Citizens United, 558 U.S. at 321. Solicitation of the 

public was off limits. See McConnell v. FEC, 540 U.S. 

93, 118 n.3 (2003), overruled on other grounds by 

Citizens United, 558 U.S. at 310 ("As a general rule, 
4a 

ermits corporations . . . to solicit 

o their PACs from their shareholders or 

t not from outsiders."). The other major 

me in the form of when the funds could 

yearly to any corporate employee or 

ber thereof, with responses being 

See 2 U.S.C. § 441b(b)(4)(B). But with 

ame benefits: because the funds were so 

o their parent corporations, they were 

ed to disclose the corporation's 

 or expenditures for "the establishment, 

n, and solicitation of contributions." Id. 

C). Citizens United, of course, did away 

 on corporate independent expenditures. 

nds- now functionally obsolete-still 

his Insanity, Inc. ("STU" or "the 

 is a corporation that had a past life as 

ected," standalone political action 

engaged in political advocacy. See 

r. at 14. It later deregistered as such a 

nd instead formed a segregated fund

e Leadership Fund ("the Fund"). See 

The Corporation asked the Federal 

ommission ("the Commission") for 

whether the Fund could open a separate 

account devoted to making independent 

 that could solicit the general public. See 

4. The Commission's response was the 

quivalent of a shrug-one memorandum 

ile another one said no. See J.A. at 41-

passe, the Commission declined to issue 

at 73. 

5a 

Unhappy with this nonresponse, STU, the Fund, 

two individuals, and another corporation filed a 

complaint in district court, alleging the restrictions on the segregated fund were unconstitutional. J.A. at 

4-11. The plaintiffs moved for a preliminary 

injunction. J.A. at 79-81. The Commission moved to 

dismiss. J.A. at 185-89. Siding with the Commission, 

the district court dismissed the case. See Stop This 

Insanity, Inc. Employee Leadership Fund v. FEC, 902 

F. Supp. 2d 23 (D.D.C. 2012). The plaintiffs timely 

appealed. I 

II 

Simply put, Stop This Insanity would like to use 

its segregated fund to solicit the entire public while 

concealing its expenses for such solicitation. It claims 

Citizens United compels such a result. Even 

assuming the Corporation's constitutional analysis is 

correct, it is far from a foregone conclusion that the 

Act is severable in a way that would eliminate the 

restrictions but leave intact the partial waiver on 

disclosure. See Alaska Airlines, Inc. v. Brock, 480 

U.S. 678, 685 (1987) ("The more relevant inquiry in 

evaluating severability is whether the statute will 

function in a manner consistent with the intent of 

Congress." (emphasis added)). Thankfully, we need 

not make that determination, for STU's arguments 

fall short on the merits. We review de novo the 

district court's grant of a motion to dismiss for 

failure to state a claim. Rudder v. Williams, 666 F.3d 

790, 794 (D.C. Cir. 2012). 

1 We lack jurisdiction over the individuals' claims, as they were 

not made through the en bane certification process prescribed 

in 2 U.S.C. § 437h. See Wagner v. FEC, 717 F.3d 1007, 1016 

(D.C. Cir. 2013). 
6a 

A 

participation is integral to our 

vernment; for this reason, limitations 

ontributions and expenditures "operate 

 of the most fundamental First 

ctivities." Buckley v. Valeo, 424 U.S. 1, 

per curiam). Accordingly, limits on 

expenditures, which do not implicate 

ption rationale, are subjected to the 

m of scrutiny and are generally 

nal. See, e.g., Citizens United, 558 U.S. 

 Limits on direct contributions to 

avoid corruption or the appearance of 

owever, are tolerated, subjected to a 

f scrutiny. See Buckley, 424 U.S. at 25; 

nnell, 540 U.S. at 140-41. 

crafted the segregated fund scheme at 

this reality was not fully realized-in 

at a time when direct participation by 

was banned. Segregated funds were 

les through which corporations could 

n the political process. See NRA, 254 

79 ("Notwithstanding [the Act's] 

 . . the statute does permit 

o participate in the electoral process in 

fashion."). After Citizens United, 

unds became a vintage- yet still 

c. Though these funds have the 

f being able to directly contribute to 

something parent corporations still 

hey are no longer necessary for 

expenditures. And yet, STII decided to 

te segregated fund. 

7a 

The crux of the Corporation's argument is 

simple: Citizens United prohibits restrictions based 

on distinctions between organizational entities, and 

such restrictions are subject to our highest form of scrutiny. Because segregated funds are singled out 

for the solicitation restrictions, STII reasons the 

constraints should be subjected to the more exacting 

half of the Buckley paradigm. 

We do not share the Corporation's confidence 

that Citizens United is apposite here. This case does 

not present an "outright ban" on political speech, see 

Citizens United, 558 U.S. at 337; it is governmental 

"regulat[ion] [of] corporate political speech," not 

suppression, see id. at 319. Indeed, the Citizens 

United Court even acknowledged the existence of 

these segregated funds-as the so-called 

counterparts to the then-speechless corporate 

entities, the funds formed a critical part of the 

Court's analysis. See id. at 321. The Court indicated 

these segregated funds were capable of speaking, not 

unduly restrained by their various obligations. In no 

uncertain terms, the Court stated "a PAC created by 

a corporation can still speak." Id. at 337; see id. at 

338 ("PACs have to comply with these regulations 

just to speak."); id. at 339 ("PACs, furthermore, must 

exist before they can speak."). Never did the Court 

suggest the statutory scheme for segregated funds 

"muzzled" their speech. See Appellants' Br. at 15. 

There are other reasons for considering Citizens 

United inapposite. The corporation in that case was 

thrust into a scenario where its only avenue of 

speech was a type of entity-the political action 

committee-that could not speak on behalf of the 

corporation and was a "burdensome alternativeO." 
Sa 

A PAC is a separate association from the 

.. Even if a PAC could somehow allow 

 to speak-and it does not-the option 

ACs does not alleviate the First 

problems. . . . P ACs are burdensome 

they are expensive to administer and 

tensive regulations."). Contrary to the 

ns of Appellants' counsel at oral 

e converse is not true. Nothing prevents 

on from speaking on behalf of the PAC; 

regulatory scheme specifically provides 

ity, albeit with strings attached. See 11 

114.5(g). Moreover, independent 

 are less burdensome through the 

ernative. Despite the availability of a 

 option-at least, when it comes to 

expenditures-the Corporation has 

things the hard way. And now, trapped 

has fashioned for itself, STII decries its 

use the Fund in the way it sees fit

 limits Congress attached to the 

hese funds. 

ervation exposes the critical flaw in the 

rgument. This case does not present a 

een "unfettered political speech and 

discriminatory fundraising limitations." 

, 554 U.S. 724, 739 (2008); cf. Buckley, 

7 n.65. STII's decision to form the more 

segregated fund was purely voluntary; 

 scheme did not compel the Corporation 

segregated fund, lest it be without a 

political speech in the form of 

expenditures. The Corporation even 

d the tradeoff; in its advisory opinion 

the Commission, STII noted the 

9a 

"distinction between Connected and Non- Connected 

P ACs," and "the trade-off between the subsidized 

administrative and operating costs . . . and the 

corresponding restriction on fundraising." J.A. at 33. 

By clothing itself in the letter of Citizens United, the 

Corporation claims there is a constitutional right to 

do things the hard way. We cannot sanction such an 

illogical conclusion. 

As the Appellants observe, the Court did make it 

clear the First Amendment prohibits the silencing of 

an entire class of speakers, i.e., corporations, see 

Citizens United, 558 U.S. at 341-42, because they 

were "disfavored associations of citizens," id. at 356. 

In conjunction with this observation, the Appellants 

also cite our pre-Citizens United decision in EMILY's 

List v. FEC, 581 F.3d 1 (D.C. Cir. 2009), where we 

held "hybrid" political action committees are entitled 

to unlimited expenditure accounts. According to the 

Appellants' legal arithmetic, Citizens United 

"eliminated distinctions between" various 

organizational forms; ergo, it should have access to 

the same type of unlimited expenditure account 

sought in EMILY's List, notwithstanding the fact 

that the Fund is not a "hybrid" political action 

committee. See Appellants' Br. at 21. 

But it would be disingenuous to say the 

Corporation is simply seeking equalization across 

different types of organizations. The type of account 

EMILY's List sought in that case also came with 

strings: disclosure requirements, the sort the 

Appellants are endeavoring to avoid. Cf. EMILY's 

List, 581 F.3d at 19 n.16 ("This case does not involve 

reporting and disclosure obligations."). What the 
lOa 

are looking for, no political action 

as. 

on restrictions are difficult to categorize, 

ot fit neatly into the Buckley framework. 

United aside, we have other reasons for 

he restrictions here are not properly 

onstraints on independent expenditures. 

y "doD not restrict the amount or manner 

. [a political entity] can spend money." 

exander, 608 F.3d 97 4, 988 (7th Cir. 

hasis added). Nor can we say the 

uly silences the segregated fund as the 

tead, it serves to "limit contributions ... 

 persons or groups," i.e., non-employees, 

 for administrative ease. Wolfson v. 

750 F.3d 1145, 1153 (9th Cir. 2014) 

mitted). Though STII suggests the First 

 allows the unfettered ability to solicit, 

he right to associate nor the right to 

n political events is absolute. Nor are the 

t, financing, and conduct of political 

wholly free from governmental 

U.S. Civil Serv. Comm'n v. Nat'l Ass'n of 

ers, 413 U.S. 548, 567 (1973) (citations 

 id. at 567 n.13 (citing, inter alia, a ban 

tation of political contributions). Though 

peak to solicitation restrictions generally, 

ncratic and outmoded congressional 

t is not deserving of the closest sort of 

B 

Citizens United does do, however, is 

he oddity of the segregated funds' 

 the wake of that case. STII insists we 

lla 

treat the Fund as if it existed in isolation, with a 

distinct set of constitutional protections attendant to 

it. But it is unclear whether our analysis should be 

so formalistic. Cf. Burwell v. Hobby Lobby Stores, 

Inc., ---S. Ct. ----, 2014 WL 2921709, at *13 (U.S. 

June 30, 2014). After all, the Corporation begot the 

Fund, the Corporation runs the Fund, and there is a 

great deal of-if not complete- overlap between the 

political speech of the Corporation and that of the 

Fund. See Nat'l Right to Work Comm., 459 U.S. at 

200 n.4 ("The separate segregated fund may be 

completely controlled by the sponsoring corporation 

or union, whose officers may decide which political candidates' contributions to the fund will be spent to 

assist."). If the Corporation and the Fund are two 

parts of the same whole, neither likely has a First 

Amendment claim; if the Fund is unable to speak on 

an issue or candidate of concern, the Corporation 

can, making any burden "merely theoretical," rather 

than substantial. See Buckley, 424 U.S. at 19. And 

that would extinguish any First Amendment claim. 

See Libertarian Party of Ohio v. Husted, 751 F.3d 

403, 418 (6th Cir. 2014) (describing the nature of the 

"burden imposed on core First Amendment activity" 

as "largely theoretical and speculative"). 

But let us assume STII is right in stating the 

Fund should be assessed in isolation. We must 

discern whether the Government has demonstrated 

"a sufficiently important interest" and "employ[ed] 

means closely drawn to avoid unnecessary 

abridgement of associational freedoms." Buckley, 424 

U.S. at 25. STII is resolute in asserting there can be 

no governmental interest other than preventing quid 

pro quo corruption, which it claims is not present 

here. See Reply Br. at 8; see also EMILY's List, 581 
12a 

("[T]he Court has recognized a strong 

tal interest in combating corruption and 

ance thereof. This, indeed, is the only 

e Court thus far has recognized as 

campaign finance regulation." (citations 

mmission does not necessarily dispute the 

of that observation; instead, its position 

anticorruption interest more robust than 

c one portrayed by the Appellants. See 

n v. FEC, 134 S. Ct. 1434, 1459 (2014) 

pinion) ("Disclosure requirements are in 

ed based on a governmental interest in 

 the electorate with information" about 

s of election-related spending."' (quoting 

nited, 558 U.S. at 367)). The evolving 

al and political landscape has altered the 

e anticorruption rationale. See id. at 1460 

ven the Internet, disclosure offers much 

st protections against corruption. . . . 

assive quantities of information can be 

t the click of a mouse, disclosure is 

a degree not possible at the time Buckley, 

McConnell, was decided."). Although 

n intimates disclosure is an obvious 

corruption and so appropriately included 

anticorruption rationale, the correlation is 

dent and disclosure cannot be reflexively 

 as the Commission's raison d'etre. Not 

sion into the First Amendment can be 

y hoisting the standard of disclosure. 

4 U.S. at 64. 

 Appellants point out, we observed in 

.org v. FEC, 599 F. 3d 686 (D.C. Cir. 2010) 

13a 

(en bane), that "[a]n informational interest in 

'identifying the sources of support for and opposition 

to' a political position or candidate is not enough to 

justify [a] First Amendment burden." Id. at 692 

(citing Citizens Against Rent Control v. City of 

Berkeley, 454 U.S. 290, 298 (1981)). But the en bane 

court, in rejecting First Amendment challenges to 

organizational and reporting requirements, 

remarked "the public has an interest in knowing who 

is speaking about a candidate and who is funding 

that speech, no matter whether the contributions 

were made towards administrative expenses or 

independent expenditures." Id. at 698. The 

Commission clings to that interest now, claiming it is 

"protect[ing] the ... First Amendment rights of the 

public to know the identity of those who seek to 

influence their vote." Appellee's Br. at 39 (citing 

Citizens United, 558 U.S. at 369-71). There may be 

circumstances in which disclosure requirements 

could facilitate intimidation and give free rein to 

animus in a way that impoverishes and inhibits 

public debate instead of protecting First Amendment 

concerns. See, e.g., NAACP v. Alabama, 357 U.S. 449 

(1958); see also McConnell, 124 S. Ct. at 735-36 

(Thomas, J., concurring in the judgment). But this is 

no such case; STU makes no attempt to refute the 

legitimacy of the interest invoked here or examine 

how closely the restrictions on the segregated fund hew to the interest. Instead, its response is "only 

quid pro quo"-hardly a response at all. Therefore, 

we are satisfied with the Commission's explanation 

for maintaining the status quo. If the Fund wishes to 

solicit freely, it must do so in the light. 

STU is already capable of sweeping solicitation. 

And yet, it wants a vehicle capable of soliciting 
14a 

nsparency. The Court has endorsed 

s "a particularly effective means of 

 voting public with information," 

134 S. Ct. at 1460, and the Appellants' 

uld stifle the Government's ability to 

 endeavor. Our Constitution does not 

a result. 

III 

never know why the Appellants wish to 

e hard way. The Constitution, however, 

rantee a right to be obstinate. Try as it 

 will get no satisfaction. The district 

ssal is 

Affirmed. 

15a 

APPENDIXB 

UNITED STATES DISTRICT COURT 

FOR THE DISTRIC OF COLUMBIA 

CIVIL ACTION No. 12-1140(BAH) 

STOP THIS INSANITY, INC, 

EMPLOYEE LEADERSHIP 

FUND 

and, 

STOP THIS INSTANITY, INC 

and, GLENGARRY LLC 

and 

TODD CEFARATTI 

and 

LADD EHLINGER 

V. 

FEDERAL ELECTION 

COMMISSION 

PLAINTIFFS 

DEFENDANT 

MEMORANDUM OPINION 

Plaintiffs Stop This Insanity, Inc. Employee 

Leadership Fund ("the Leadership Fund"), Stop This 

Insanity, Inc. ("STI"),l Glengary LLC, Todd 

1 The plaintiffs refer to STI as both "Stop the Insanity, Inc." 

and "Stop This Insanity, Inc.' in their Complaint. Compare 

Compl. 17, with id. 18. It appears that the correct name is 

Stop This Insanity, Inc. See Ariz. Corp. Comm'n, Corps. Div., 

http://starpas.azcc.gov/scripts/cgiip.exe/WService=wsbrokerl/co 
16a 

nd Ladd Ehlinger bring this as-applied 

dment challenge against three provisions 

eral Election Campaign Act ("FECA"), 

U.S.C. §§ 441a(a)(l)(C) and 441a(a)(3) 

t the dollar amount of contributions to 

mmittees); and 441b(b)(4)(A)(i) (which 

e pool of citizens from which connected 

mmittees established by a corporation 

contributions).2 The Leadership Fund is a 

political action committee ("P AC")3 or 

egregated fund" of the corporation STI. 

, ECF No. 1. The Leadership Fund seeks 

me-id=15854462 (last visited Nov. 5, 2012). 

iffs also reference that they challenge the 

 the source restrictions in 2 U.S.C. § 441b(a), 

s, inter alia, political committees from accepting 

from corporations. See Compl. 1, ECF No. 1; 

Supp. Mot. Prelim. Inj. ("Pls.' Mem.") at 1, ECF 

plaintiffs do not clearly articulate the nature of 

e to § 441b(a). In fact, the plaintiffs do not cite 

 anywhere in their three causes of action, and 

ay that they seek declaratory or injunctive relief 

vision in their prayer for relief.See Compl. at 15-

the plaintiffs only mention this provision in 

ourt does not construe the plaintiffs' Complaint to 

or relief against that provision, and the Court will 

dress§ 441b(a) in this opinion. 

olitical action committee or "PAC" is generally 

onym for "separate segregated fund." It "normally 

nizations that corporations or trade unions might 

the purpose of making contributions or 

hat the [FECA] would otherwise prohibit." FEC 

U.S. 11, 15, 118 S. Ct. 1777, 141 L.Ed.2d 10 

so BLACK'S LAW DICTIONARY 1276 (9th ed. 

g PAC as "[a]n organization formed by a special

 to raise and contribute money to the campaigns 

ndidates who the group believes will promote its 

17a 

declaratory and injunctive relief that would allow it 

to solicit and accept unlimited contributions to 

finance unlimited independent political expenditures 

through an independent expenditure-only account 

not subject to the restrictions set forth in §§ 

441a(a)(1)(C), 441a(a)(3), and 441b(b)(4)(A)(i). Id. 

1. In their three count Complaint, the plaintiffs seek 

a declaratory judgment that the prohibitions 

contained in these portions of the FECA are 

unconstitutional as applied to their proposed 

solicitation and contribution activities. Id. at 20-22. 

The plaintiffs also seek preliminary and permanent 

injunctive relief that would prohibit the defendant 

Federal Election Commission ("FEC") from enforcing 

§§ 441a(a)(l)(C), 44la(a)(3), and 441b(b)(4)(A)(i) 

against the Leadership Fund and any individual or 

corporate contributors to an independent 

expenditure-only account established by the 

Leadership Fund. See id. 

I. BACKGROUND 

STI is a not-for-profit social welfare organization, 

incorporated in Arizona, which is currently seeking 

tax-exempt status under § 50l(c)(4) of the Internal 

Revenue Code. See Compl. 18.4 The Leadership 

4 An organization that is "not organized for profit but operated 

exclusively for the promotion of social welfare ... and the net 

earnings of which are devoted exclusively to charitable, 

educational, or recreational purposes," is exempt from taxation 

under § 501(c)(4). According to its Articles of Incorporation, STI 

is a "political non-partisan nonprofit organization" that "will 

not represent any candidate or party" and "gather[s] donations 

and donate[s] to any candidate or party that represents original 

U.S. Constitutional principles." See Articles of Incorporation, 

http://images.azcc.gov/scripts/cgi!dwispart2.pl (filed Feb. 25, 

2010) (emphasis added). 
18a 

parate segregated fund ("SSF") that was 

by and connected to STI and registered 

C as a political committee on January 4, 

l. Ex. B at 3, ECF No. 1-1. Under the 

poration may establish an SSF to engage 

activities, see 2 U.S.C. § 441b(b)(2)(C), 

a PAC ... may be wholly controlled by 

ng corporation," FEC v. Beaumont, 539 

49, 123 8. Ct. 2200, 156 L.Ed.2d 179 

SFs, however, must register as "political 

 under the FECA. See 2 U.S.C. §§ 

33.5 Likewise, all political committees, 

SFs, are required to abide by certain 

nal, record-keeping, and reporting 

s, see 2 U.S.C. §§ 432, 433, 434, as well 

tion limits, see id. § 441a. Under the 

n limits, no person is allowed to make 

ns" to any "other political committee" 

udes SSFs) "in any calendar year which, 

egate, exceed $5,000." Id. § 441a(a)(1)(C). 

y, SSFs are uniquely required to observe 

ts upon the universe of people from whom 

 contributions. Specifically, subject to 

ited exceptions, it is unlawful "for a 

 or a separate segregated fund 

 by a corporation, to solicit contributions 

fund from any person other than its 

s and their families and its executive or 

ive personnel and their families." Id. § 

 of associations may also establish SSFs, including 

ations, membership organizations, or cooperatives. 

§ 441b(b)(2)(C). This case, however, only involves 

ished by a corporation. 

19a 

441b(b)(4)(A)(i).6 The Leadership Fund asserts that 

these restrictions on the solicitations and 

contributions of connected P ACs are unconstitutional 

as applied to it, in light of recent developments in the 

law of campaign finance and the First Amendment. 

Currently, the Leadership Fund maintains a 

.. -single bank account into which it receives "hard 

money"7 contributions that are subject to the 

contribution limits, solicitation restrictions, and 

reporting and disclosure requirements of the FECA. 

Compl. Ex. A at 2, ECF No. 1-1.8 The Leadership 

Fund wants to use the funds from this bank account 

to make direct contributions to candidates for federal 

political office. Compl. 23. The Leadership Fund, 

however, would also like to expand its political 

activities to include "independent expenditures," id., 

which are expenditures "expressly advocating the 

6 The FECA defines "executive or administrative personnel" to 

mean "individuals employed by a corporation who are paid on a 

salary, rather than hourly, basis and who have policymaking, 

managerial, professional, or supervisory responsibilities." 2 

U.S.C. § 441b(b)(7). 

7 The term "hard money" refers to "contributions subject to 

[FECA's] source, amount, and disclosure requirements." See 

Shays v. FEC, 528 F.3d 914, 917 (D.C.Cir.2008) (alteration in 

original) (internal quotation marks omitted). Conversely, "soft 

money" refers to "[p]olitical donations made in such a way as to 

avoid federal regulations or limits." Id. (alteration in original) 

(internal quotation marks omitted). 

8 The FECA defines "contributions" as "any gift, subscription, 

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

any person for the purpose of influencing any election for 

Federal office" or "the payment by any person of compensation 

for the personal services of another person which are rendered 

to a political committee without charge for any purpose." 2 

U.S.C. § 431(8)(A). 
20a 

defeat of a clearly identified candidate" 

e "not made in concert or cooperation with 

quest or suggestion of such candidate, the 

 authorized political committee, or their 

a political party committee or its agents," 

431(17). Since independent expenditures 

enjoy fewer restrictions than direct 

ns to candidates, the Leadership Fund 

 to establish a second, separate bank 

r which it would like to solicit unlimited 

ns from the general public in order to 

 "independent expenditures." Compl. Ex. A 

so Carey v. FEC, 791 F.Supp.2d 121, 130-

 2011) (approving "separate accounts for 

y and soft-money contributions and 

es"). This separate account would not be 

ontribute directly to candidates, political 

or other political committees, and is 

sometimes referred to as a "non

on" account or, more accurately, an 

ent expenditure-only account." 

that end, the Leadership Fund submitted 

ry opinion request to the FEC on January 

asking the FEC "whether it may open a[n] 

dent expenditure-only] account ... to accept 

ons from individuals, corporations, and 

hat is not subject to the limitations and 

ns of 2 U.S.C. § 441a(a)(1)(C) or § 441b ... 

duct Independent Expenditures and 

nally pay [] an appropriately tailored share 

istrative expenses." Compl. Ex. A at 1; see 

S.C. § 437f(a) (requiring the FEC to render a 

dvisory opinion in response to a "complete 

request concerning the application of [the 

r a rule or regulation prescribed by the 

21a 

[FEC], with respect to a specific transaction or 

activity by the person"). 

On February 17, 2012, the FEC issued two draft 

advisory opinions in response to the Leadership 

Fund's request. The first draft advisory opinion 

("Draft A") concluded that the Leadership Fund 

"may establish a[n] [independent expenditure-only] 

account and solicit and accept unlimited 

contributions from individuals, other political 

committees, corporations, and labor organizations, 

STI itself, and STI's restricted class" for the purpose 

of financing independent expenditures. Com pl. Ex. B 

at 2. The second draft advisory opinion ("Draft B"), 

however, reached the opposite conclusion: "the 

[FECA] and [FEC] regulations prohibit [the 

Leadership Fund] and STI frorp_ establishing a[n] 

[independent expenditure-only] account for [the 

Leadership Fund] that would receive unlimited 

contributions solicited from all STI employees and 

the general public for the purpose of financing 

independent expenditures." Id. Ex. C at 4, ECF No. 

1-1. Both of these advisory opinions recognized that 

none of the recent judicial decisions issued in the 

realm of campaign finance and the First Amendment 

directly address whether FECA's contribution limits 

and solicitation restrictions are constitutional as 

applied to an SSF, i.e., a political committee 

connected to a corporation or labor organization. Id. 

Ex. Bat 7; id. Ex. Cat 6-7. 

On March 2, 2012, the FEC certified that it had 

failed on a vote of 3-3 to approve either draft 

advisory opinion. See Compl. Ex. D at 1, ECF No. 1-
22a 

ut the FEC's blessing, the Leadership Fund 

d continues to be) unable to solicit 

ons for independent expenditures without 

ect to the contribution limits in § 441a(a) 

olicitation restrictions in § 441b(b)(4)(A) 

he Leadership Fund alleges that it "will 

dible threat of prosecution if it solicits or 

contributions to a[n] [independent 

e-only] account in excess of the limits 

in 2 U.S.C. §§ 441a(a)(l)(C) and 

" or "in derogation of the restriction at 2 

41b(b)(4)(A)(i)." Compl. 51, 52. Feeling 

to mute itself and curtail its activities" 

he 2012 election cycle, id. 37, the 

p Fund-along with its connected 

entity (STI) and three potential donors 

 to make contributions to the Leadership 

are currently prohibited by the FECA from 

Glengary LLC, Todd Cefaratti, and Ladd 

-filed the Complaint in the instant action 

0, 2012. Pending before the Court are the 

Motion for Preliminary Injunction and the 

otion to Dismiss.lO For the reasons 

below, the Court will deny the plaintiffs 

r Preliminary Injunction and will grant the 

tion to Dismiss. 

is required to approve any advisory opinion by the 

votes of four members. See 11 C.F.R. § 112.4(a) 

s Motion to Dismiss became fully briefed on 

2012. 

23a 

II. LEGAL STANDARDS 

A. Preliminary Injunction 

The purpose of a preliminary injunction "is 

merely to preserve the relative positions of the 

parties until a trial on the merits can be held." Univ. 

of Tex. v. Camenisch, 451 U.S. 390, 395, 101 S. Ct. 

1830, 68 L.Ed.2d 175 (1981). It is "an extraordinary 

and drastic remedy" and "should not be granted 

unless the movant, by a clear showing, carries the 

burden of persuasion." Mazurek v. Armstrong, 520 

U.S. 968, 972, 117 S. Ct. 1865, 138 L.Ed.2d 162 

(1997) (emphasis and internal quotation mark 

omitted). Plaintiffs seeking a preliminary injunction 

must establish that (1) they are likely to succeed on 

the merits of their claims; (2) they are likely to suffer 

irreparable harm in the absence of preliminary 

relief; (3) the balance of equities tip in their favor; 

and (4) and injunction is in the public interest. 

Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 

20, 129 S. Ct. 365, 172 L.Ed.2d 249 (2008); accord 

Gordon v. Holder, 632 F.3d 722, 724 (D.C.Cir.2011). 

Historically, these four factors have been 

evaluated on a "sliding scale" in this Circuit, such 

that "[i]f the movant makes an unusually strong 

showing on one of the factors, then it does not 

necessarily have to make as strong a showing on 

another factor." Davis v. Pension Benefit Guar. Corp., 

571 F.3d 1288, 1291-92 (D.C.Cir. 2009). Recently, 

however, the continued viability of that approach has 

been called into some doubt, as the D.C. Circuit has 

suggested, without holding, that a likelihood of 

success on the merits is an independent, freestanding requirement for a preliminary injunction. 

See Sherley v. Sebelius, 644 F.3d 388, 392-93 
24a 

W]e read Winter at least to suggest 

hat a likelihood of success is an 

ee-standing requirement for a 

nction."' (citation omitted) (quoting 

3d at 1296 (Kavanaugh, J., 

bsent binding authority or clear 

he Court of Appeals, however, the 

he most prudent course is to bypass 

ssue and proceed to explain why a 

nction is not appropriate under the 

ramework. If the plaintiffs cannot 

emanding "sliding scale" standard, 

 satisfy the more stringent standard 

e Supreme Court and the Court of 

aid, in meeting the requisite burden 

ef, "[i]t is particularly important for 

monstrate a likelihood of success on 

narski v. Donovan, 763 F.Supp.2d 

2011). Indeed, "absent a 'substantial 

bable success [on the merits], there 

fication for the court's intrusion into 

esses of administration and judicial 

ankers Ass'n v. Nat'l Credit Union 

Supp.2d 114, 140 (D.D.C.1999) 

ginal) (quoting Wash. Metro. Area 

v. Holiday Tours, Inc., 559 F.2d 841, 

77)). Assessing the likelihood of 

merits "does not involve a final 

 the merits, but rather the exercise 

 discretion on the need for interim 

 for Women v. Soc. Sec. Admin., 736 

(D.C.Cir.1984) (internal quotation 

As an extraordinary remedy, courts 

ch relief sparingly." Konarski, 763 

25a 

F.Supp.2d at 133 (citing Mazurek, 520 U.S. at 972, 

117 S. Ct. 1865); see also Dorfmann v. Boozer, 414 

F.2d 1168, 1173 (D.C.Cir.1969) ("The power to issue 

a preliminary injunction, especially a mandatory 

one, should be sparingly exercised." (internal 

quotation marks omitted)). 

B. Motion to Dismiss 

To survive a motion to dismiss under Rule 

12(b)(6), a plaintiff need only plead "enough facts to 

state a claim to relief that is plausible on its face" 

and to "nudge[ ] [his or her] claims across the line 

from conceivable to plausible." Bell Atl. Corp. v. 

Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 

L.Ed.2d 929 (2007); see also FED.R.CIV.P. 12(b)(6). 

"[A] complaint [does not] suffice if it tenders 'naked 

assertion[s]' devoid of 'further factual enhancement.' 

" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 

1937, 173 L.Ed.2d 868 (2009) (alteration in original) 

(quoting Twombly, 550 U.S. at 557, 127 S. Ct. 1955). 

Instead, the complaint must plead facts that are 

more than " 'merely consistent with' a defendant's 

liability"; "the plaintiff [must] plead[ ] factual 

content that allows the court to draw the reasonable 

inference that the defendant is liable for the 

misconduct alleged." Id. (quoting Twombly, 550 U.S. 

at 556, 127 S. Ct. 1955); accord Rudder v. Williams, 

666 F.3d 790, 794 (D.C.Cir.2012). The Court "must 

assume all the allegations in the complaint are true 

(even if doubtful in fact) ... [and] must give the 

plaintiff the benefit of all reasonable inferences 

derived from the facts alleged." Aktieselskabet AF 21. 

November 2001 v. Fame Jeans Inc., 525 F.3d 8, 17 

(D.C.Cir.2008) (citations and internal quotation 

marks omitted). 
26a 

ON 

most recent attempt by a non-profit 

date, on First Amendment grounds, 

ons related to independent political 

Such challenges within this Circuit 

Supreme Court have enjoyed almost 

ss in recent years on the premise that 

xpenditures, including those made by 

o not give rise to corruption or the 

corruption." Citizens United v. FEC, 

130 S. Ct. 876, 909, 175 L.Ed.2d 753 

SpeechNow.org v. FEC, 599 F.3d 686, 

010) ("[T]he government can have no 

 interest in limiting contributions to 

expenditureonly organizations."); 

v. FEC, 581 F.3d 1, 12 (D.C.Cir.2009) 

nations to and spending by non-profits 

revent corruption of candidates and 

epresents a kind of 'prophylaxis-upon

gulation to which the Supreme Court 

ally stated, 'Enough is enough.' " 

v. Wis. Right to Life, Inc. ("WRTL "), 

478-79, 127 S. Ct. 2652, 168 L.Ed.2d 

It is of course not the Court's 

o question the authority of these 

 as the following discussion makes 

plications of Citizens United and its 

t compel the relief the plaintiffs seek. 

l first assess the plaintiffs' probability 

n the merits before evaluating the 

wing on the other three preliminary 

ors. 

27a 

A. Probability of Success on the Merits 

In assessing the viability of the plaintiffs' asapplied constitutional challenge, it is critical to 

observe that this is a case about regulating the 

solicitation and fundraising activities of "connected" 

SSFs-P ACs that are established, administered, and 

subsidized by corporations. SSFs have unique 

characteristics that come to bear on the Court's 

analysis below. 

First, although all political committees must 

disclose the amount of all "contributions" they 

receive and the source of any such contributions over 

$200, see 2 U.S.C. §§ 434(b)(2)(A), 434(b)(3)(A), the 

FECA specifically exempts from the definition of 

"contributions" any funds used for "the 

establishment, administration, and solicitation of 

contributions to a [SSF] to be utilized for political 

purposes by a corporation," id. § 441b(b)(2)(C). 

Therefore, any funds provided by a corporation to 

finance the administration and solicitation of 

contributions to its SSF need not be disclosed to the 

government and need not count against the 

contribution limits established for political 

committees. See 2 U.S.C. § 441a(a)(l)(C) (limiting contributions to "other political committees," which 

includes SSFs); id. § 434 (requiring disclosure of all 

contributions and the source of any contributions 

over $200). 

Second, although an SSF's solicitation activities 

are permitted to benefit from undisclosed corporate 

subsidization, the FECA limits the universe of people 

the SSF may solicit: An SSF may generally solicit 

contributions only from its connected corporation's 

"stockholders and their families and its executive or 
28a 

personnel and their families." Id. § 

 The SSF (or its connected 

ay also solicit rank-and-file employees 

d corporation to contribute to the SSF 

solicitations are: (1) made in writing; 

o the employees at their residence; (3) 

e per calendar year; and ( 4) designed 

SSF and its connected corporation 

ine who makes a contribution of $50 

ult of such solicitation and who does 

a contribution."ll Id. § 441b(b)(4)(B). 

a major statutory trade-off for SSFs: 

have all of its administrative and 

osts paid for by its connected 

d need not report the amount or 

 funds, but in order to enjoy those 

disclosure, and non-reporting benefits 

imit its solicitation base. If, however, 

mittee wishes to solicit contributions 

al public, it must disconnect from its 

oration, pay its own administrative 

 expenses, and disclose and report the 

urce of all funds raised-including any 

oward administration and solicitation 

ssence, as the FEC points out, the 

eeking relief that would create such a 

 in political committee disclosure 

mechanism, although admirably intended to 

file corporate employees from feeling coerced 

tical contributions, appears to be easy to 

xample, any corporation intent on discovering 

ailed to contribute to its connected PAC could 

ny employee contributions of $50 or less and, 

ution minimum, could thereby deduce which 

d which employees did not. 

29a 

requirements that those requirements would be 

meaningless. See Def.'s Opp'n to Pls.' Mot. Prelim. 

Inj. ("Def.'s Opp'n") at 15, ECF No. 6 ("This lawsuit, 

however, seeks to have the statutory disclosure 

exception swallow the rule ... .''). 

Third, since Citizens United, SSFs have become 

vestiges of a bygone world of campaign finance. 

Section 441b's original purpose was "to prohibit 

contributions or expenditures by corporations or 

labor organizations in connection with federal 

elections," and the SSF was created to "permit[ ] 

some participation of unions and corporations in the 

federal electoral process.'' FEC v. Nat'l Right to Work 

Comm. ("NRWC "), 459 U.S. 197, 201, 103 S. Ct. 552, 

74 L.Ed.2d 364 (1982). This legislative compromise 

prevented corporations from directly engaging in 

political spending, while permitting corporations' 

beneficial owners and employees to pool their 

personal resources to engage in organized political 

speech. SSFs continue to be a mechanism through 

which the beneficial owners and employees of 

corporations can band together to make direct 

contributions to candidates and political parties, 

which corporations are still prohibited from doing 

directly under the FECA and First Amendment 

jurisprudence. See, e.g., Beaumont, 539 U.S. at 161-

63, 123 S. Ct. 2200 (upholding§ 441b(a)'s prohibition 

on direct political contributions by corporations); see 

also Green Party of Conn. v. Garfield, 616 F.3d 189, 

199 (2d Cir.2010) ("Beaumont and other cases 

applying the closely drawn standard to contribution 

limits remain good law. Indeed, in the recent 

Citizens United case, the [Supreme] Court . . . 

explicitly declined to reconsider its precedents 

involving campaign contributions by corporations to 
30a 

ected office."). Yet, corporations no 

SSFs to engage in unlimited 

penditures with general treasury 

upreme Court eliminated this 

Citizens United by allowing 

mselves (rather than just their 

mbers, officers, employees, etc.) to 

nlimited independent political 

e Citizens United, 130 S. Ct. at 913. 

mentioning that the relief sought by 

 the instant action is completely 

allow the plaintiffs to engage in 

endent expenditures, individually or 

, this case narrowly touches upon 

counting mechanism through which 

y make those expenditures. 

Supreme Court has recognized that 

ntly suspect in certain respects by 

t that a single entity (corporation, 

) pays all of their administration 

ifornia Medical Association v. FEC 

53 U.S. 182, 101 S. Ct. 2712, 69 

1), the Supreme Court observed: 

mited contributions for 

tive support are permissible, 

s and groups like CMA could 

 dominate the operations and 

on policies of independent 

ommittees such as CALP AC. 

if an individual or association 

mitted to fund the entire 

of a political committee, all 

31a 

solicited by that committee could be 

converted into contributions, the use of 

which might well be dictated by the 

committee's main supporter. In this 

manner, political committees would be 

able to influence the electoral process to 

an extent disproportionate to their 

public support and far greater than the 

individual or group that finances the 

committee's operations would be able to 

do acting alone. In so doing, they could 

corrupt the political process in a 

manner that Congress, through its 

contribution restrictions, has sought to 

prohibit. 

Cal-Med, 453 U.S. at 198 n. 9, 101 S. Ct. 2712. 

Connected SSFs can essentially accept "unlimited 

contributions for administrative support" because of 

the exemption in 2 U.S.C. § 441b(b)(2)(C) and therefore officials with control of the money spigot at 

the connected corporation can "completely dominate 

the operations and contribution policies" of the SSF. 

See id. Moreover, SSFs may also accept unlimited 

amounts of undisclosed money from the connected 

corporation to pay for solicitations. See 2 U.S.C. § 

441b(b)(2)(C). Because of this, SSFs are "able to 

influence the electoral process to an extent 

disproportionate to their public support," and can do 

so to an extent "far greater than the [connected 

corporation] would be able to do acting alone." CalMed, 453 U.S. at 198 n.19, 101 S. Ct. 2712; see also 

EMILY's List, 581 F.3d at 12 n.10 ("The requirement 

that certain administrative expenses be funded in 

part with hard money prevents a contributor from 

essentially taking control of a non-profit and thereby 
32a 

n individual contributions to 

al-Med, 453 U.S. at 198-99 

n mind, the Court will first 

blished First Amendment 

dependent expenditures and 

ity of campaign finance 

h those principles in tow, the 

evaluate the probability that 

ceed on the merits of their 

ntribution and solicitation 

1a(a)(1)(C), 441a(a)(3), and 

constitutional as applied to 

in both direct candidate 

ess advocacy. 

endment Principles 

ment, which provides that 

 no law TTT abridging the 

.S. CONST. amend. I, is an 

inst improper intrusions upon 

so vital to the maintenance of 

s," Schneider v. New Jersey, 

. Ct. 146, 84 L.Ed. 155 (1939). 

"is broadly staked on the view 

our people" should enjoy broad 

n "a robust and uninhibited 

t only to minimum controls 

ity of our democratic system." 

v. FCC, 516 F.2d 1101, 1132 

nt to the context of the instant 

endment 'has its fullest and 

on' to speech uttered during a 

office." Citizens United, 130 S. 

 v. S.F. Cnty. Democratic Cent. 

33a 

Comm., 489 U.S. 214, 223, 109 S. Ct. 1013, 103 

L.Ed.2d 271 (1989)). Although allowing such a robust 

national conversation is certain to create passionate 

and, at times vitriolic, factions, "[f]actions should be 

checked by permitting them all to speak, and by 

entrusting the people to judge what is true and what 

is false." Id. at 907 (citation omitted) (citing The 

Federalist No. 10 (James Madison)). 

The vitality of the First Amendment, however, is 

also predicated on the fact that the important rights 

subject to its protection are not absolute, and in 

certain contexts, must give way to other compelling 

governmental interests.12 See, e.g., Times Film Corp. 

v. City of Chicago, 365 U.S. 43, 47, 81 S. Ct. 391, 5 

12 The Supreme Court has repeatedly recognized this principle 

in myriad contexts in recent years. See, e.g., Holder v. 

Humanitarian Law Project, - U.S. --, 130 S. Ct. 2705, 

2727, 177 L.Ed.2d 355 (2010) (rejecting idea that "it is possible 

in practice to distinguish material support for a foreign 

terrorist group's violent activities and its nonviolent activities" 

in upholding statute that criminalized appellant's efforts to 

provide humanitarian and political support to organizations 

considered by the government to be "foreign terrorist organizations"); Morse v. Frederick, 551 U.S. 393, 403, 127 S. 

Ct. 2618, 168 L.Ed.2d 290 (2007) ("The question thus becomes 

whether a principal may, consistent with the First Amendment, restrict student speech at a school event, when that speech is 

reasonably viewed as promoting illegal drug use. We hold that 

she may."); Beard v. Banks, 548 U.S. 521, 533-35, 126 S. Ct. 

2572, 165 L.Ed.2d 697 (2006) (upholding Pennsylvania prison 

regulation that prevented some prison inmates from having any 

access to newspapers, magazines, or photographs); Garcetti v. 

Ceballos, 547 U.S. 410, 421, 126 S. Ct. 1951, 164 L.Ed.2d 689 

(2006) ("[W]hen public employees make statements pursuant to 

their official duties, the employees are not speaking as citizens 

for First Amendment purposes, and the Constitution does not 

insulate their communications from employer discipline."). 
34a 

61) ("It has never been held that 

 is absolute."); Marshall v. United 

473, 474 (D.C.Cir.1949) ("The rights 

the First Amendment are not 

 subordinate to the greater rights of 

c interest, and to the right of the 

maintain and protect itself."); 

uer, Harm(s) and the First 

1 SUP.CT. REV. 81, 81 ("The First 

always had a delicate relationship 

herefore, ironically, some speech 

ed in order to permit a healthy, 

ocracy to march onward. See, e.g., 

NDER, IS THERE A RIGHT OF 

EXPRESSION? 178 (2005) ("In 

free speech is important because it 

duce valuable consequences such as 

ter democratic politics, and more 

velopment. But this means that any 

ech principle carries with it a 

onstrain speech that destroys these 

oft-discussed kind of potentially 

s money spent in the context of the 

 When money is conceptualized as 

upreme Court has,13 and when that 

 United, 130 S. Ct. at 898 ("Section 441b's 

orate independent expenditures is thus a 

a 'restriction on the amount of money a 

spend on political communications during a 

tute 'necessarily reduces the quantity of 

cting the number of issues discussed, the 

ation, and the size of the audience reached.' 

 Valeo, 424 U.S. 1, 19, 96 S. Ct. 612, 46 

. Justice Stevens has observed that this 

y be problematic: 

35a 

pecuniary speech is given free reign to influence the 

election of those entrusted to lead and shape the character of our democracy, a legitimate and complex 

question arises about what constitutional limits can 

be placed on the flow of money spent with a political 

purpose-limits intended to prevent behavior that 

corrodes the very legitimacy and integrity of our 

democratic institutions. In Citizens United, the 

Supreme Court reviewed-and rejected-the 

governmental interests used over the years to limit 

political speech, including "an antidistortion 

interest," and a "shareholder-protection interest," 

and concluded that while "[t]he appearance of 

influence or access TTT will not cause the electorate 

to lose faith in our democracy," activity that "lead[s] 

to, or create[s] the appearance of, quid pro quo 

corruption" is a sufficiently compelling governmental 

interest to justify limits on political speech. Citizens 

United, 130 S. Ct. at 909-13. 

Both parties agree that corporate entities have 

the same First Amendment right as individuals to 

Money is property; it is not speech. 

Speech has the power to inspire volunteers to 

perform a multitude of tasks on a campaign 

trail, on a battleground, or even on a football 

field. Money, meanwhile, has the power to pay 

hired laborers to perform the same tasks. It does 

not follow, however, that the First Amendment 

provides the same measure of protection to the 

use of money to accomplish such goals as it 

provides to the use of ideas to achieve the same 

results. 

Nixon v. Shrink Mo. Gov't PAC, 528 U.S. 377, 398, 120 S. Ct. 

897, 145 L.Ed.2d 886 (2000) (Stevens, J., concurring). 
36a 

nlimited independent political 

e Def.'s Opp'n at 1 (stating that "a 

rst Amendment right to finance 

paign advocacy" is "undisputed and 

"). The Supreme Court established 

early three years ago in Citizens 

S. Ct. at 909 ("[W]e now conclude 

 expenditures, including those made 

do not give rise to corruption or the 

orruption."). The D.C. Circuit has 

d that other campaign finance 

unconstitutional as applied to non

ical committees (i.e., political 

established by a candidate, political 

ion, or corporation). In EMILY's 

ded shortly before Citizens United

t held that nonconnected political 

ich make direct contributions to 

d political parties, have a 

right also to accept unlimited 

o finance "expenditures-such as 

e] advertisements, get-out-the-vote 

r registration drives," so long as they 

void circumvention of individual 

mits by [their] donors, that [their] 

 parties or candidates come from a 

ount." See EMILY's List, 581 F.3d at 

s later, shortly after Citizens United 

st, the D.C. Circuit held unconstitutional 

lations that required non-profit entities 

cal committees to spend "hard money" to pay 

aging in certain political expenditures (e.g., 

out and registration drives, generic party 

ted the manner in which such groups could 

o support or oppose the election of a clearly 

37a 

was decided, the D.C. Circuit held in SpeechNow 

that the contribution limits in 2 U.S.C. § 441a(a) 

were unconstitutional as applied to contributions 

made by individuals to a non-connected political 

committee that made only independent expenditures 

because "the government can have no anti-corruption 

interest in limiting contributions to independent 

expenditure only organizations.'' SpeechNow, 599 

F.3d at 695-96 ("The contribution limits of 2 U.S. C. § 

441a(a)(1)(C) and 441a(a)(3) violate the First 

Amendment by preventing [individuals] from 

donating to SpeechNow in excess of the limits by 

prohibiting SpeechNow from accepting donations in 

excess of the limits.''). Finally, in Carey, another 

Judge on this Court held that a non-connected 

political committee may operate simultaneously as 

both a multicandidate political committee (making 

direct candidate contributions) and an independent 

expenditure-only political committee by establishing 

separate bank accounts for each activity. See Carey, 

791 F. Supp. 2d at 130-32. 

A number of precepts-some broad, others 

narrow-can be derived from this body of recent case 

law. First, EMILY's List and Carey have endorsed 

the hybridization of political committees-at least 

when such political committees are not connected to 

a candidate, political party, corporation, or labor 

union. In other words, "[t]he constitutional principles 

that govern TTT a hybrid non-profit entity follow 

ineluctably from the well-established principles 

governing the other two categories of non-profits," 

which either (1) make only direct contributions to 

identified federal candidate. See EMILY's List, 581 F.3d at 16-

18. 
38a 

2) make only "expenditures for 

."15 EMILY's List, 581 F.3d at 12. 

pect to acknowledge about EMILY's 

that although it began with a very 

of First Amendment principles, the 

 was ultimately quite narrow. The 

 certain FEC regulations because 

non-connected, non-profit political 

use its hard-money (i.e., direct 

arty contribution) account to pay for 

ey activities, namely "expenditures 

ements [about ballot initiatives], get

rts, and voter registration drives." 

ourt's holding was that "non-profits 

d to use their hard money accounts" 

xpenditures. Id. Thus, EMILY's List 

d that some level of hybridization is 

egistered political committees, but 

open the question of how much 

too much. Carey, in turn, extended 

he court in Carey held that a non

cal committee could combine direct 

vities with not only generic political 

t also "independent expenditures," 

ion are expenditures that "expressly 

EMILY's List was careful not to use the 

rt "independent expenditure," which is an 

ssly advocating the election or defeat of a 

andidate," 2 U.S.C. § 431(17), because the 

Y's List did not engage in any express 

cations that would have been considered 

nditures." The Court instead referred more 

nditures for political activities" or simply 

EMILY's List, 581 F.3d at 6-9, 11-12. 

39a 

advocat[e] the election or defeat of a clearly 

identified candidate." Carey, 791 F.Supp.2d at 132; 

see also 2 U.S.C. § 431(17) (defining "independent 

expenditure"). The "soft money" expenditures in 

EMILY's List are distinct from the express advocacy 

contained in independent expenditures, see, e.g., 

Citizens United, 130 S. Ct. at 910-11 ("This case, 

however, is about independent expenditures, not soft 

money."),16 yet Carey did not distinguish between 

the express advocacy communications it was 

presented with and the generic soft-money 

expenditures addressed in EMILY's List. On the 

contrary, the court in Carey concluded that "[the 

plaintiff] and EMILY's List are identical in that 

regard." Id. at 130. Carey also dismissed any 

corruption concerns that might be present with a 

hybrid political committee that makes both direct 

candidate contributions and express advocacy 

communications, citing the holdings of Citizens 

United and SpeechNow: independent expenditures do 

not give rise to corruption or the appearance of 

corruption. See id. at 135 (citing Citizens United, 130 

S. Ct. at 909 and SpeechNow, 599 F.3d at 693). The 

court observed that: "EMILY's List specifically 

16 See also McConnell u. FEC, 540 U.S. 93, 123-24, 124 S. Ct. 

619, 157 L.Ed.2d 491 (2003) (noting that "[political] parties 

could also use soft money to defray the costs of 'legislative 

advocacy media advertisements,' even if the ads mentioned the 

name of a federal candidate, so long as they did not expressly 

advocate the candidate's election or defeat"); EMILY's List, 581 

F.3d at 12 n.ll ("[U]nder Austin [u. Michigan Chamber of 

Commerce, 494 U.S. 652, 110 S. Ct. 1391, 108 L.Ed.2d 652 

(1990) ], the soft-money account into which [corporate and labor 

union] donations are deposited cannot be used to fund expressadvocacy election activities that for profit corporations and 

unions are themselves banned from conducting."). 
40a 

rid nonprofit entity that both made 

enditures and contributed directly to 

es, campaigns, and parties-and 

m." Id.17 In sum, EMILY's List 

me hybridization for non-connected 

ees, but the D.C. Circuit has yet to 

ansion of allowable hybrid activity 

rey. 

recept to glean from these cases is 

so-called "Super P ACs"-political 

t can raise unlimited money to 

ited electioneering communications, 

eir activities are not made "in 

ultation, or concert, with, or at the 

estion of' a candidate, his or her 

cal committee, or a national, State, 

ee of a political party. 2 U.S.C. § 

ese "Super PACs" are permitted to 

f two cases. The first is the Supreme 

in Citizens United, which held that 

d not be prevented from engaging in 

ted political speech funded from the 

neral treasury so long as that speech 

of independent expenditures. See 

130 S. Ct. at 909. The second is the 

ecision in SpeechNow, which held 

can contribute unlimited amounts to 

particular suggests that the Carey court felt 

Circuit's precedent in EMILY's List to decide 

d. Additionally, "[t]he Carey court was 

he D.C. Circuit's recent decision in 

ng unconstitutional contribution limits to 

iture groups." McCutcheon v. FEC, No. 12-

d 133, 138 n.2, 2012 WL 4466482, at *3 n.2 

12) (three judge panel). 

41a 

a non-connected political committee, as long as the 

political committee is engaged solely in independent 

expenditures. See SpeechNow, 599 F.3d at 694 ("In 

light of the [Supreme] Court's holding as a matter of law that independent expenditures do not corrupt or 

create the appearance of quid pro quo corruption, 

contributions to groups that make only independent 

expenditures also cannot corrupt or create the 

appearance of corruption."). Essentially, as long as a 

non-connected political committee engages only in 

independent expenditures, it is now permitted to 

receive unlimited amounts of money from both 

individuals and corporations. See, e.g., FEC Advisory 

Op. 2010-11, 2010 WL 3184269, at *2 (July 22, 2010) 

("Following Citizens United and SpeechNow, 

corporations, labor organizations, and political committees may make unlimited independent 

expenditures from their own funds, and individuals 

may pool unlimited funds in an independent 

expenditure-only political committee. It necessarily 

follows that corporations, labor organizations and 

political committees also may make unlimited 

contributions to organizations . . . that make only 

independent expenditures." (footnote omitted)). 

Importantly, in allowing unlimited money to flow 

into the electoral process for express advocacy, both 

SpeechNow and Citizens United heavily emphasized 

the non-coordinated nature of independent 

expenditures, which serves as an essential 

counterweight to concerns about corruption or the 

appearance of corruption. See Citizens United, 130 S. 

Ct. at 908 ("'The absence of prearrangement and 

coordination of an expenditure with the candidate or 

his agent ... alleviates the danger that expenditures 

will be given as a quid pro quo for improper 
42a 

m the candidate."' (quoting Buckley, 

96 S. Ct. 612)); id. at 910 ("By 

dependent expenditure is political 

 to the electorate that is not 

 a candidate."); SpeechNow, 599 

he independence of independent 

s a central consideration in the 

in Citizens United]."); id. ("[A] lack 

diminishes the possibility of 

nce, there can be little doubt that 

 of independent expenditures is the 

lds together the principle that no 

laced on contributions for such 

 express advocacy for particular 

es were to lose its independence 

or appearance), it stands to reason 

carefully crafted in Citizens United 

would begin to tumble back to 

d final precept, which loomed large 

opment of the first two precepts, is 

rnment's interest in preventing 

e appearance of corruption endures 

ustification to restrict certain kinds 

h. In particular, courts continue to 

preventing corruption or the 

rruption is sufficiently important to 

 that engage in direct contributions 

and political parties, including 

political committees," which are 

ees that "ha[ve] made contributions 

didates for Federal office." 2 U.S.C. § 

Citizens United, 130 S. Ct. at 908 

ourt, nevertheless, sustained limits 

utions in order to ensure against the 

43a 

reality or appearance of corruption."); SpeechNow, 

599 F.3d at 695 ("Limits on direct contributions to 

candidates, 'unlike limits on independent 

expenditures, have been an accepted means to 

prevent quid pro quo corruption."' (quoting Citizens 

United, 130 S. Ct. at 909)); EMILY's List, 581 F.3d at 

11 ("In order to prevent circumvention of limits on an 

individual donor's contributions to candidates and 

parties, the [Supreme] Court has held that non-profit 

entities can be required to make their own 

contributions to candidates and parties ... out of a 

hard-money account that is subject to source and 

amount restrictions."). 

Specifically, Congress explicitly carved out 

"multicandidate political committees" to be entities 

that engage in direct contributions to candidates and 

political parties because such direct contributions 

foment "the reality or appearance of corruption 

inherent in a system permitting unlimited financial 

contributions." Buckley, 424 U.S. at 28, 96 S. Ct. 612; 

see also 2 U.S.C. § 441a(a)(2) (limiting contributions 

made by "multicandidate political committees").IS 

18 The Supreme Court was clear in its seminal campaign 

finance decision of the twentieth century (Buckley ) that "[b]y 

contrast with a limitation upon expenditures for political 

expression, a limitation upon the amount that any one person 

or group may contribute to a candidate or political committee 

entails only a marginal restriction upon the contributor's ability 

to engage in free communication." Buckley, 424 U.S. at 20, 96 S. 

Ct. 612. This is because "[a] contribution serves as a general 

expression of support for the candidate and his views, but does 

not communicate the underlying basis for the support," and 

hence although "contributions may result in political expression 

if spent by a candidate or an association to present views to the 

voters, the transformation of contributions into political debate 

involves speech by someone other than the contributor." Id. at 
44a 

phasis added) 

ht of this distinction, any political 

enjoys, ex ante, a lesser quantum of 

ment protection than any type of 

nditure. See id. at 23, 96 S. Ct. 612 

ure ceilings impose significantly 

restrictions on protected freedoms 

xpression and association than do ... 

n financial contributions."); see also 

40 U.S. at 152 n.48, 124 S. Ct. 619 

A's definition of 'contribution,' the 

25,000 limits restricted not only the 

mount of funds available to parties 

l committees to make candidate 

, but also the source and amount of 

ble to engage in express advocacy 

erous other non-coordinated 

."), overruled in part on other 

Citizens United, 558 U.S. 310, 130 S. 

-Med, 453 U.S. at 196, 101 S. Ct. 

ity opinion) ("[T]he 'speech by proxy' 

profit] seeks to achieve through its 

s to [a PAC] is not the sort of 

vocacy that this Court in Buckley 

tled to full First Amendment 

; McCutcheon, 893 F.Supp.2d at 

WL 4466482, at *3 ("Every 

 limit may 'logically reduce[ ] the 

unt that the recipient of the 

s otherwise could spend,' but for 

truism does not mean limits on 

s are simultaneously considered 

xpenditures that therefore receive 

iny."' (quoting Republican Nat'l 

FEC, 698 F.Supp.2d 150, 156 

))); Richard Wolf Hess, No Fair Play 

aires? McCain-Feingold's Wealthy 

Restrictions and the First 

, 70 U. Chi. L. Rev. 1067, 1077 

e Buckley Court ratified contribution 

45a 

For this very reason, the Supreme Court has long 

validated the government's ability to restrict the 

amount of contribution that may be given to 

multicandidate political committees. See Cal-Med, 

453 U.S. at 203, 101 S. Ct. 2712 (Blackmun, J., 

concurring) ("Multicandidate political committees 

are therefore essentially conduits for contributions to 

limits by recognizing that although contribution 

limits do affect free speech rights, contributions 

are less deserving of protection than other forms 

of political speech. The Buckley Court 

considered contributions as derivative, or 

conduit-type speech .... "). For this reason, the 

Buckley Court was ultimately untroubled by 

limits on political contributions because the 

overall effect of contribution limits "is merely to 

require candidates and political committees to raise funds from a greater number of persons." 

See Buckley, 424 U.S. at 21-22, 96 S. Ct. 612. 

The Supreme Court, however, started to narrow 

Buckley's critical distinction, without 

explanation, only five years after the case was 

decided. See Citizens Against Rent Control v. 

City of Berkeley, 454 U.S. 290, 296-97, 102 S. 

Ct. 434, 70 L.Ed.2d 492 (1981) ("Buckley 

identified a single narrow exception to the rule 

that limits on political activity were contrary to the First Amendment. The exception relates to the perception of undue influence of large 

contributors to a candidate."). SpeechNow 

followed the Supreme Court down this path, 

saying that "the limits upheld in Buckley were 

limits on contributions made directly to 

candidates." SpeechNow, 599 F.3d at 695. 

Although this narrowing of Buckley is at odds 

with language from other Supreme Court 

precedents cited above (Cal-Med and 

McConnell), the D.C. Circuit's narrow 

interpretation of Buckley binds this Court. 
46a 

s such they pose a perceived threat 

potential corruption."); see also 

y of San Diego, 645 F.3d 1109, 1120 

(noting that "the direct donor 

 multicandidate political committee 

 of actual or apparent quid pro quo 

g Cal-Med, 453 U.S. at 197, 101 S. 

Supreme Court has also clearly 

"[o]f almost equal concern as the 

quid pro quo arrangements is the 

ppearance of corruption stemming 

eness of the opportunities for abuse 

gime of large individual financial 

uckley, 424 U.S. at 27, 96 S. Ct. 612. 

stage for the constitutional question 

the Court: Does the government 

tly compelling interest in limiting 

(and solicitations by) connected 

tees that engage in both express 

unications and direct candidate 

ll that such a hybrid organization 

cording to Carey, is establish two 

counts-one for direct contributions 

ependent expenditures-and voila: 

of corruption and undue influence 

pear. Yet, the allowances of such 

ansmogrify Congress's intent in 

ing "multicandidate political 

om other kinds of political 

hen a PAC gives directly to 

 its right hand and engages in 

 with its left hand, the risk that the 

ending will appear corrupting and 

fest. When the public sees a hybrid 

eck to a candidate or party leader 

47a 

while that PAC simultaneously spends unlimited 

amounts on highly visible electioneering 

communications that directly advocate for that candidate's election, the fac;ade of "independence"-

even if formally observed by using separate funds or 

accounts-appears non-existent to the public. Thus, 

the "belief that quid pro quo arrangements can be 

neatly demarcated from other improper influences 

-does not accord with the theory or reality of politics." 

Citizens United, 130 S. Ct. at 961 (Stevens, J., 

dissenting); see also id. at 962 ("[A] large majority of 

Americans (80%) are of the view that corporations 

and other organizations that engage in 

electioneering communications, which benefit 

specific elected officials, receive special consideration 

from those officials when matters arise that affect 

these corporations and organizations." (quoting 

McConnell v. FEC, 251 F.Supp.2d 176, 623-24 

(D.D.C.2003), overruled in part by 540 U.S. 93, 124 S. 

Ct. 619, 157 L.Ed.2d 491 (2003))).19 

The instant case lies at the intersection of these 

three precepts, addressing whether a single 

connected PAC is permitted to engage in limited 

19 The Court of Appeals' holding in SpeechNow, which struck 

down as unconstitutional limits on individuals' contributions to 

independent expenditure-only groups, did not account for the 

newly minted approval of "hybrid" PACs in EMILY's List. 

Indeed, SpeechNow never even cited to EMILY's List. Although 

SpeechNow purported to limit its holding to "contributions to 

independent expenditure-only organizations," 599 F.3d at 696, 

the plaintiffs invite the Court to conclude that the dual-account 

model supplied by EMILY's List for hybrid PACs be read in 

tandem with SpeechNow to expand SpeechNow 's holding to any 

organization that engages in some amount of independent 

expenditure activity. The Court declines the plaintiffs' 

invitation. 
48a 

funded from one bank account 

engage in unlimited express 

tions funded from another bank 

precedents in mind, the Court 

 probability of success of the 

nal claims. 

bution Limits 

plaintiffs challenge the 

the contribution limits in 2 

C) and 441a(a)(3) as applied to 

both direct contributions and 

mmunications. Those provisions 

tributions to any "other political 

ng SSFs) that exceed $5,000 in 

r and also prohibit making 

aggregate more than $57,500 

ffs Glengary LLC and Todd 

t they are both interested in 

s to the Leadership Fund that 

and are prohibited from doing so 

 See Compl. '11'11 25-26, 71. Those 

for individuals, such as plaintiff 

dy been held unconstitutional as 

nected political committees. See 

d at 696. 

contend that the broad-based 

bution limits in SpeechNow and 

cap applies to all contributions that are 

es and the authorized committees of 

he $57,500 cap no more than $37,500 

 contributions to political committees 

ommittees of national political parties." 

49a 

EMILY's List dictate a result in the plaintiffs' favor. 

Those cases are distinguishable, however, and 

therefore do not control the outcome of the instant 

case. First, although EMILY's List was a facial 

challenge, the regulations challenged in that case 

only dealt with solicitation and allocation 

restrictions, not contribution limits. EMILY's List, 

581 F.3d at 15-18 (outlining provisions of challenged 

regulations). Hence, to the extent the Court's 

analysis touched upon contribution limits, it was 

pure dicta. Second and perhaps more importantly, 

although the non-profit plaintiff in EMILY's List 

engaged in "expenditures," none of the expenditures 

at issue involved express advocacy for or against a 

clearly identified federal candidate. Rather, the 

expenditures involved in EMILY's List were either 

issue-based advocacy or voter turnout and 

registration activities. See id. at 12 (noting that 

EMILY's List "makes expenditures for 

advertisements, get-out-the-vote efforts, and voter 

registration drives"); EMILY's List v. FEC, 569 F. 

Supp. 2d 18, 33 (D.D.C.2008) (noting that 

advertisements at issue were "five advertisements 

supporting two ballot initiatives in Missouri that ... 

do not contain any references to clearly identified 

federal candidates"), reversed by 581 F.3d 1 

(D.C.Cir.2009).21 

21 The Circuit panel in EMILY's List was also very careful to 

emphasize repeatedly that its "constitutional analysis of nonprofits applie[d] only to non-connected non-profits." EMILY's 

List, 581 F.3d at 22 n.21 (emphasis in original); see also id. at 8 

("[T]his case concerns the FEC's regulation of non-profit entities 

that are not connected to a candidate, party, or for-profit 

corporation."); id. at 16 n.15 ("Our constitutional analysis of 

donations and spending limits applies both to non-connected 
50 a 

s List did not address contribution 

articular it did not address the 

rruption interests implicated by 

s on hybrid P ACs that engage in 

ibutions and express advocacy-a 

 from the facts of the instant case. 

 critical primarily because express 

n inherently stronger nexus to 

ates, which materially alters the 

analysis of hybrid political 

FEC v. Mass. Citizens for Life, Inc. 

U.S. 238, 249, 107 S. Ct. 616, 93 

6) ("Buckley adopted the 'express 

ment to distinguish discussion of 

andidates from more pointed 

ote for particular persons."); Wis. 

 v. FEC, 466 F. Supp. 2d 195, 209 

The common denominator between 

 and its functional equivalent, as 

urt defined it in McConnell, is the 

words and images used in the ad 

r lack thereof, of the candidate for 

t is the absence of that link which 

lihood of political corruption and 

 as political committees with the FEC and 

-profits that are not so registered."). The 

icitly state why non-connectedness was 

sis, though the repeated emphasis on non

es that it was in fact important. 

urt will not venture to speculate as to the 

 of the non-connected nature of the non

ILY's List, other than to observe that the 

 instant case (the Leadership Fund) is, by 

political committee. 

51a 

public cynicism in government where the ad, on its 

face, is devoid of any language the purpose of which 

is advocacy either for or against a particular 

candidate for federal office."). Additionally, EMILY's 

List did not consider the propriety of "hybrid" P ACs in a post-Citizens United world of unlimited 

corporate funding-a factor that does, and should, 

likewise modify the anti-corruption calculus.22 

Similarly, SpeechNow is distinguishable from the 

instant case because it involved limits on 

contributions by individuals to unincorporated nonprofit associations that only engage in independent 

expenditures. See SpeechNow, 599 F.3d at 689 ("[W]e 

hold that the contribution limits of 2 U.S.C. § 

441a(a)(1)(C) and 441a(a)(3) are unconstitutional as 

applied to individuals' contributions to 

SpeechNow."); see also id. at 696 ("[W]e only decide· 

these questions as applied to contributions to 

SpeechNow, an independent expenditure-only 

group."). Clearly, SpeechNow does not control the 

instant case because this case deals with a "hybrid" 

PAC that seeks to engage in both independent 

expenditures and direct candidate contributions.23 

22 This is notwithstanding the partially concurring opinion in 

EMILY's List, which observed that the results of the majority's 

decision "are in tension-perhaps irreconcilable tension-with 

McConnell." EMILY's List, 581 F.3d at 39 (Brown, J., 

concurring); see also id. at 37 ("This novel argument [that 

hybrid political committees may exist] is not without 

considerable charm, but one must read Cal-Med with a squint 

to see that holding."). 

23 It also appears that the plaintiffs in SpeechNow and 

EMILY's List were not established, administered, or subsidized 

by a corporation and thus were "non-connected," unlike the 

Leadership Fund in the instant action. 
52 a 

oting that the Leadership Fund 

ributions to federal candidates" 

ested in making independent 

ed, SpeechNow observed that 

of independent expenditures was 

tion in the [Supreme] Court's 

s UnitedJ," 599 F.3d at 693, 

rt's preceding analysis makes 

pendence" of hybrid PAC 

ct. 

Court has recognized only one 

mportant to outweigh the First 

s implicated by contributions for 

reventing corruption or the 

ption." Id. at 692; see also Colo. 

mpaign Comm. v. FEC, 518 U.S. 

 2309, 135 L.Ed.2d 795 (1996) 

ribution limits directly and 

the Government's interest in 

s of large financial contributions 

. As the Court in Buckley and 

Cal-Med articulated, the 

st in "deal[ing] with the reality 

orruption inherent in a system 

d financial contributions," is 

when contributions are made to 

n make direct contributions to 

al parties. Buckley, 424 U.S. at 

 also Cal-Med, 453 U.S. at 194, 

urality opinion) ("[Contribution] 

] the important governmental 

ng the corruption or appearance 

e political process that might 

ibutions were not restrained."). 

interest continues to justify the 

53 a 

$5,000 annual cap on hybrid P ACs like the 

Leadership Fund that desire to make both 

independent electioneering expenditures, including 

express advocacy communications, and direct 

contributions to federal parties and candidates. The 

Supreme Court observed as much in Cal-Med when 

the plurality held: 

If the First Amendment rights of a 

contributor are not infringed by 

limitations on the amount he may 

contribute to a campaign organization 

which advocates the views and 

candidacy of a particular candidate, the 

rights of a contributor are similarly not 

impaired by limits on the amount he 

may give to a multicandidate political 

committee ... which advocates the views 

and candidacies of a number of 

candidates. 

Cal-Med., 453 U.S. at 183-84, 101 S. Ct. 2712 

(plurality opinion) (citation omitted). 

As discussed above, the government's interest in 

preventing the appearance of political corruption and 

undue influence is at its zenith when individuals and 

organizations give money directly to political 

candidates and political parties. As the Supreme 

Court prophetically stated over thirty-five years ago: 

Under a system of private financing of 

elections, a candidate lacking immense 

personal or family wealth must depend 

on financial contributions from others to 

provide the resources necessary to 

conduct a successful campaign. The 

increasing importance of the 
54 a 

 media and 

ass-mailing and polling 

effective campaigning 

g of large sums of money 

ssential ingredient of an 

acy. To the extent that 

ons are given to secure a 

ro quo from current and 

holders, the integrity of 

epresentative democracy 

26-27, 96 S. Ct. 612. This has 

n for contribution limits to 

al committees for decades. See, 

S. at 197-98, 101 S. Ct. 2712 

(holding that limits on 

candidate political committees 

ental interest in preventing the 

corruption of the political 

ntity is allowed to make both 

ntributions and unlimited 

ditures, keeping the bank 

o purposes separate is simply 

ome the appearance that the 

with the candidates and parties 

th and supports. Although such 

ain separate bank accounts, it 

eparate management or hold 

ic as engaging in two distinct 

the perspective of any citizen 

ze the entity's bank statements, 

nding (direct contributions and 

mmunications) is coming from 

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

55 a 

525 F.3d 274, 336 (4th Cir.2008) (Michael, J., 

dissenting) ("It is hard to understand how [an 

independent expenditure-only PAC] could, whether intentionally or not, avoid incorporating the 

coordinated campaign strategies used by [its 

affiliated direct contribution-only PAC] into its own 

ostensibly independent campaign work. Similarly, it 

is hard to understand how a donor, approached by 

the same fundraiser on behalf of both [PACs], could 

not believe that his or her contributions to each 

would be linked."); see also Vt. Right to Life Comm., 

Inc. v. Sorrell, 875 F.Supp.2d 376, 408 (D.Vt.2012) 

(noting that "the structural melding" between an 

independent expenditure-only PAC and a direct 

contribution PAC "leaves no significant functional 

divide between them for purposes of campaign 

finance law," and their "nearly complete 

organizational identity poses serious questions"). To 

conclude that a "hybrid" P AC's direct contributions 

to (and attendant coordination with) candidates and 

parties do not infect, or appear to infect, all of its 

operations in the political arena is naive and simply 

out of touch with the American public's clear 

disillusionment with the massive amounts of private 

money that have dominated the political system, 

particularly since Citizens United.24 See Citizens 

24 See Brennan Ctr. for Justice, National Survey: Super P A Cs, 

Corruption, and Democracy 2-3 (2012) (reporting that 73% of 

respondents in national poll agreed that "there would be less corruption if 

there were limits on how much could be given to Super PACs," 77% 

"agreed that members of Congress are more likely to act in the interest of 

a group that spent millions to elect them than to act in the public interest," 

and 65% said that "they trust government less because big donors to 

Super PACs have more influence than regular voters"); see also Morgan 

Little, Poll: Americans Largely in Favor of Campaign Spending 

Limitations, L.A. Times (Sept. 16, 20 12) (reporting that recent national 
56 a 

 964 (Stevens, J., dissenting) ("A 

function effectively when its 

 believe laws are being bought 

gh "[a] non-profit that makes 

ort federal candidates does not 

irst Amendment rights when it 

 direct contributions to parties 

LY's List, 581 F.3d at 12, such a 

oes not lose its status as a 

itical committee merely by 

expenditures. 

 not to say that an organization 

ip Fund forfeits its First 

imply by virtue of wanting to 

contributions and independent 

nditures. Those rights remain 

the burden on the plaintiffs to 

current contribution limits is 

together to engage in unlimited 

their goal, the plaintiffs could 

pendent expenditure-only PAC 

 and receive contributions in 

Compare SpeechNow, 599 F.3d 

rgue that the additional burden 

osed on SpeechNow if it were 

 with the organizational and 

ents applicable to political 

uch for the First Amendment to 

ciated Press and the National Constitution 

Americans "believe there should be at least 

 of money corporations, unions and other 

to contribute to groups seeking to influence 

nd congressional races"). 

57 a 

bear. We disagree."), with Pls.' Reply Mem. in Supp. 

Mot. Prelim. Inj. ("Pls.' Reply") at 11, ECF No. 7 

("The FEC cannot require [the Leadership Fund] to 

clone itself to make independent expenditures."). 

Therefore, the contribution limits at 2 U.S.C. §§ 

441a(a)(1)(C) and 441a(a)(3) are constitutional as 

applied to the Leadership Fund, insofar as the 

Leadership Fund operates as a single entity that 

makes both direct contributions and express 

advocacy communications.25 

3. Solicitation Restrictions 

Next, the plaintiffs challenge the 

constitutionality of the FECA's restrictions on the 

group of people from whom an SSF may solicit 

contributions. Section 441b(b)(4)(A)(i) of the FECA 

makes it unlawful "for a corporation, or a separate 

segregated fund established by a corporation, to 

solicit contributions to such a fund from any person 

other than its stockholders and their families and its executive or administrative personnel." SSFs may also solicit the rank-and-file employees of their 

connected corporations as long as the solicitations 

are: (1) made in writing; (2) addressed to the 

employees at their residence; (3) made only twice per 

calendar year; and (4) designed such that the SSF 

and its connected corporation "cannot determine who 

25 As discussed above, this holding does not prevent the 

Leadership Fund or any of the other plaintiffs from engaging in 

unlimited independent expenditures. It merely imposes a 

narrow limit on the mechanism through which they may do so. 

For example, STI could establish a second connected PAC that 

engaged in only independent expenditures. Also, any or all of 

the plaintiffs could establish a non-connected political 

committee that engages in only independent expenditures. 
58 a 

n of $50 or less as a result of 

d who does not make such a 

41b(b)(4)(B). The plaintiffs state, 

do not challenge the validity of 

ons, which regulate the manner 

le employees may be solicited. 

Supp. Mot. Prelim. Inj. ("Pls.' 

 No. 4-1 ("Plaintiffs do not 

hibition on soliciting employees 

 restricted class more than twice 

certain restrictions." (citing 2 

))). Rather, the plaintiffs seek to 

f people who may be solicited 

group of individuals associated 

ration through an ownership or 

 In essence, however, the direct 

ons for rank-and-file employees 

d if the relief sought by the 

ed (and STI and the Leadership 

ed to solicit from the general 

general public necessarily would 

 employees. 

 for political spending is distinct 

political contributions or making 

l expenditures, though all three 

st Amendment protection. The 

 held that "[s]oliciting financial 

btedly subject to reasonable 

as that regulation is "undertaken 

 the reality that solicitation is 

tertwined with informative and 

speech." Vill. of Schaumburg v. 

 Env 't, 444 U.S. 620, 632, 100 S. 

73 (1980); see also Friends of the 

em. 'l v. Kennedy, 116 F.3d 495, 

59 a 

497 (D.C.Cir.1997) ("The cases protecting the right to 

solicit contributions in a public forum do so not 

because the First Amendment contemplates the right 

to raise money, but rather because the act of 

solicitation contains a communicative element." 

(citing Village of Schaumburg, 444 U.S. at 632, 100 

S. Ct. 826)) Therefore, the plaintiffs go too far in 

arguing that, "After Citizens United and related 

cases all associations have a fundamental right to 

associate by soliciting contributions to fund 

independent expenditures." Pls.' Reply at 14. 

It is not completely clear what level of scrutiny 

applies when examining the constitutional validity of 

restrictions on solicitation activities. A number of 

courts have held that, so long as the solicitation 

restrictions are content neutral, they need not 

withstand strict scrutiny. See, e.g., McConnell, 540 

U.S. at 138-39, 124 S. Ct. 619 (applying less than 

strict scrutiny to solicitation restriction because it "in 

no way alter[ed] or impair[ed] the political message 

'intertwined' with the solicitation"); EMILY's List, 

581 F.3d at 35 (Brown, J., concurring) ("After 

McConnell, . . . solicitation rules are subject only to 

this lesser scrutiny."); Blount v. SEC, 61 F.3d 938, 

941-42 (D.C.Cir.1995) ("The intensity with which we 

scrutinize [a solicitation *46 restriction] depends on 

whether the rule is content-based, eliciting 'strict' 

scrutiny, or content-neutral, eliciting only 

'intermediate' scrutiny."). In the instant case, the 

solicitation restrictions appear to be content neutral 

because they are "justified without reference to the 

content of the regulated speech," see Va. State Bd. of 

Pharmacy v. Va. Citizens Consumer Council, Inc., 

425 U.S. 748, 771, 96 S. Ct. 1817, 48 L.Ed.2d 346 

(1976), but the Court need not decide this question 
60a 

sequent discussion reveals, the 

ons challenged by the plaintiffs 

trict scrutiny. 

ourt is mindful solicitation 

racteristically intertwined with 

haps persuasive speech," Village 

 U.S. at 632, 100 S. Ct. 826, the 

ether failed to allege or describe 

d solicitation activities would 

cative element."26 See Kennedy, 

e plaintiffs have discussed their 

n activities solely in terms of how 

ill allow them to raise particular 

see, e.g., Compl. 27, 40-41, 43; 

The Leadership Fund] wants to 

 to make a $1,500 contribution to 

xpenditure-only] account .... "); 

Leadership Fund] would like to 

 for its independent expenditures 

r than $5,000.00 per calendar 

t of soliciting money in certain 

 does not warrant strong First 

tion-even if it is for the purpose 

n protected speech. See Kennedy, 

7 (observing that the First 

ot contemplate "the right to raise 

at one of its concerns is that the Leadership 

eral public through expressive or persuasive 

fs do not address this possibility in their 

g. See Def.'s Opp'n at 16 (noting "the damage 

's proposal to pay for undisclosed solicitations 

mmunications that can themselves support or 

). 

61a 

money"). Nevertheless, the Court is wary of labeling 

the plaintiffs' proposed solicitations as pure 

commercial speech, particularly because this Circuit 

has recognized that the solicitation of campaign 

funds "is close to the core of protected speech." 

Blount, 61 F.3d at 941 (citing Village of Schaumburg, 

444 U.S. at 632, 100 S. Ct. 826). A restriction on 

solicitation activity thus generally "cannot be 

sustained unless it serves a sufficiently strong, 

subordinating interest that the [government] is 

entitled to protect." Village of Schaumburg, 444 U.S. at 636, 100 S. Ct. 826; see also id. at 637, 100 S. Ct. 

826 (noting that restriction on solicitation activities 

"may serve [the government's] legitimate interests, 

but it must do so by narrowly drawn regulations 

designed to serve those interests without 

unnecessarily interfering with First Amendment 

freedoms"). 27 

27 The plaintiffs seem to believe that the right to engage in 

unrestricted solicitation of funds follows ineluctably from the 

holding in Citizens United because, in the plaintiffs' view, every 

campaign finance regulation that has any nexus to independent 

expenditures is also unconstitutional. See, e.g., Pls.' Reply at 14. 

Yet, this is clearly not so. For example, courts have consistently 

upheld the FECA's organizational, reporting, and disclosure 

requirements-requirements that continue to apply to 

independent expenditure-only organizations, despite the fact 

that compliance with such requirements imposes costs that 

necessarily divert organizational resources away from 

independent expenditure activity. See Citizens United, 130 S. 

Ct. at 916 ("[D]isclosure permits citizens and shareholders to 

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

transparency enables the electorate to make informed decisions 

and give proper weight to different speakers and messages."); 

SpeechNow, 599 F.3d at 697 (rejecting plaintiffs' argument that 

organizational and reporting requirements on political 

committees are violative of the First Amendment). 
62a 

Court established long ago, 

deral government has a number 

ong" interests in limiting the 

 of SSFs. See NRWC, 459 U.S. at 

52. The plaintiffs are incorrect in 

preme Court's decision in NRWC, 

A's solicitation restrictions, was 

 an antidistortion rationale 

by the Supreme Court in Citizens 

at 14 n.12. NRWC discussed the 

f the very same solicitation 

hat plaintiffs challenge in the 

plaintiff in NRWC challenged the 

ons in 2 U.S.C. § 441b(b)(4)(A), 

plaintiffs do here) that they 

ty of the corporation's SSF to 

e who shared its political beliefs. 

S. at 206-07, 103 S. Ct. 552; see 

4 (arguing for "fundamental right 

citing contributions"). The Court 

ge on several grounds. First, the 

n anti-distortion rationale, i.e., 

stantial aggregations of wealth 

ial advantages which go with the 

f organization should not be 

ical 'war chests,' " as well as a 

on rationale, i.e., "to protect the 

ve paid money into a corporation 

oses other than the support of 

ving that money used to support 

 to whom they may be opposed," 

h were "sufficient' to justify the 

63a 

[solicitation restrictions] at issue." NRWC, 459 U.S. 

at 207-08, 103 S. Ct. 552. Significantly, the Court 

then went on to discuss a third key rationale that 

supported the solicitation restrictions: "the 

importance of preventing both the actual corruption 

threatened by large financial contributions and the 

eroding of public confidence in the electoral process 

through the appearance of corruption." Id. at 208, 

103 S. Ct. 552. The Court stated that "[i]n order to 

prevent both actual and apparent corruption, 

Congress aimed a part of its regulatory scheme at 

corporations" and that "[w]hile § 441b restricts the 

solicitation of corporations and labor unions without 

great financial resources, as well as those more 

fortunately situated, we accept Congress's judgment 

that it is the potential for such [corrupting] influence 

that demands regulation." Id. at 209-10, 103 S. Ct. 

552. Therefore, contrary to the plaintiffs' assertion, 

the Supreme Court in NRWC also relied upon the 

well-established and compelling anti-corruption 

rationale in upholding § 441b's solicitation 

restrictions. Nothing in Citizens United or any other 

Supreme Court case has displaced the holding in 

NRWC, and this Court is bound to follow it here. 

Yet another important consideration implicated 

by the solicitation restrictions challenged in this case 

is the government's interest in protecting the First 

Amendment rights of a corporation's employees. This 

concern was not addressed by the majority in 

Citizens United or the Court of Appeals in EMILY's 

List and SpeechNow, but it is vitally important to the 

health of American democracy. See NRWC, 459 U.S. 

at 206, 103 S. Ct. 552 (observing that FECA's 

restrictions on SSF solicitations were intended to 

prevent such solicitations from "coerc[ing] members 
64a 

ding minority political views"). 

noted in his piercing dissent, 

s oblivious to the simple truth 

e FECA] do not merely pit the 

erest against the First 

also pit competing First 

against each other." Citizens 

t 976 (Stevens, J., dissenting). 

ed and aphoristic approach to 

t may well promote corporate 

he individual and collective self

dment was meant to serve." Id. 

rations with an unlimited 

ring more and louder voices to 

dialogue as the Citizens United 

emphasized and lauded, but 

amplification of corporate 

lso inevitably chill the political 

mployees whose views diverge 

mployers. The plaintiffs assure 

will abide by the FECA's other 

n restrictions, such as the 

liciting rank-and-file employees 

der certain restrictions, "the 

m each employee it solicits of 

 of [the SSF]' and 'of his right to 

without any reprisal.' " Pls.' 

ng Def.'s Opp'n at 23). Yet, as 

 noted, "the inherent potential 

oyer-employee relationships ... 

done by prohibiting explicit or 

crimination." Paul M. Secunda, 

Captive Audience Workplace 

-Citizens United Environment, 

65a 

120 Yale L.J. Online 17, 24 (2010). Rather, "it is in 

the best interest of all involved to keep political 

discussions and partisanship out of the public and 

private workplace." Id. The relief sought by the plaintiffs would do just the opposite. As noted above, 

allowing STI and the Leadership Fund to solicit 

funds from the general public would essentially do 

away with the FECA's strict limitations on how 

corporate employees may be solicited because all corporate employees are also members of the general 

public. The danger that rank-and-file employees 

would be exposed to repeated public solicitations 

from their employer's P AC28-via direct mail, radio, 

television, or other public media of the corporation's 

choice-and would thereby feel coerced to contribute 

or adopt a particular political viewpoint at work, 

represents an unacceptable risk of infringing those 

employees' First Amendment rights. Preventing such 

an outcome would essentially require rewriting the 

statute to account for the existence of general-public 

solicitation, which is a task for the Congress, not this 

Court. 

The solicitation restrictions in § 441b are also 

narrowly drawn to serve the foregoing governmental 

interests because the restrictions are tailored to 

match the special benefit that Congress extended to 

SSFs-exempting all funds used for "the 

establishment, administration, and solicitation of 

contributions to a [SSF]" from the definition of 

"contributions." See 2 U.S.C. § 441b(b)(2)(C). This 

28 Corporate employees would be well aware that they are 

being solicited by their employer's PAC because each SSF is 

required to "include the name of its connected organization" in 

its name. 2 U.S.C. § 432(e)(5). 
66a 

ed above, evidences a delicate 

f burden and benefit: An SSF's 

may be subsidized by its 

, so long as those solicitations 

te insiders and employees. See 

statutory exemption allows 

oid the disclosure and reporting 

would otherwise apply to 

at fund political solicitations. 

ons to the general treasury of 

ation in any amount from any 

neled, without disclosing or 

 or the source, to the connected 

tions.29 Removing the statute's 

breadth of such solicitations 

sure and reporting exception to 

s of statute-they were crafted 

ertain benefits that other, non

not enjoy, and it is therefore 

 and important for connected 

y Congress's countervailing 

verse of people to whom SSFs' 

irected. See Cal-Med, 453 U.S. 

inction between the instant case and 

f in EMILY's List, unlike the plaintiff 

on, was registered as a political 

required to disclose the amount and 

ons," i.e., any monies given to the 

pose of influencing any election for 

C. § 431(8)(A); EMILY's List, 581 F.3d 

)(4) non-profit that need not disclose 

f any contributions to its general 

67a 

at 201, 101 S. Ct. 2712 ("[T]he segregated funds that 

unions and corporations may establish pursuant to § 

441b(b)(2)(C) are carefully limited in [the manner 

and scope of their solicitations]."). The solicitation 

restrictions do not limit the content or frequency of 

the plaintiffs' solicitation messages, and therefore it 

would be inappropriate to upset the careful 

legislative balance struck in § 441b(b). The FEC's 

"reasonable regulation" upon the solicitation of 

financial support to SSFs is therefore permissible 

because it exercises "due regard for the reality that 

solicitation is characteristically intertwined with 

informative and perhaps persuasive speech." See 

Village of Schaumburg, 444 U.S. at 632, 100 S. Ct. 

826. 

*** 

In sum, the plaintiffs have not demonstrated a 

likelihood of success on the merits of their claims. 

Although the Court will continue to discuss the other 

three preliminary injunction factors in assessing the 

plaintiffs Motion for Preliminary Injunction, the 

foregoing conclusion about the merits of the 

plaintiffs' claims is sufficient to grant the FEC's 

Motion to Dismiss. As a result, the Leadership Fund 

may establish two separate bank accounts that may 

be used for direct contributions and independent 

expenditures (including express advocacy). Insofar as 

the Leadership Fund chooses to remain as a single 

entity that engages in both direct candidate 

contributions and express advocacy communications, 

however, the Leadership Fund may not solicit 

contributions beyond the limits on such solicitations contained in 2 U.S.C. § 441b(b)(4), and the 

Leadership Fund also may not accept any 
68a 

s of the limits contained in 2 

 and 441a(a)(3). 

e Harm 

aim that they will suffer 

the Leadership Fund is not 

o "solicit and accept unlimited 

er to conduct independent 

m. at 33. This claim, however, 

in light of the numerous 

the plaintiffs could engage in 

speech. Most notably, the 

 Super PAC that paid its own 

solicitation costs and could 

mited contributions from the 

nance unlimited independent 

ntiffs respond to this option by 

g a Super *50 PAC would be 

Reply at 11-12 (citing MCFL, 

107 S. Ct. 616). The plaintiffs 

additional requirements" of 

per PAC " 'may create a 

ntiffs] to engage in political 

alteration in original) (quoting 

254, 107 S. Ct. 616). Yet, the 

ay why the organizational, 

rd-keeping requirements of 

er PAC would be any more 

he (identical) organizational, 

ord-keeping requirements of 

F. It appears that what the 

ld really like is to have its cake 

oy the benefits of an SSF 

tion of administration and 

while also enjoying the benefits 

69a 

of a Super PAC (unlimited fundraising abilities). 

Choices have consequences, and requiring the 

plaintiffs to live with the limitations of the entity 

they chose to establish (an SSF) entails no more of 

an injury than requiring a "social welfare" 

organization to begin paying taxes if it chooses to operate its business for profit. See 26 U.S.C. § 

501(c)(4). 

C. Balance of Equities and Public 

Interest 

For many of the same reasons already discussed, 

the balance of equities tips in favor of the FEC 

rather than the plaintiffs. Granting the plaintiffs the relief they request would force the FEC to ignore the 

congressionally mandated limits on the fundraising 

activities of SSFs without a sound constitutional 

basis for doing so. Also, though the plaintiffs may not be capable of raising the amount of funds they would 

be capable of raising as a Super PAC, that wound is 

self-inflicted. Furthermore, the plaintiffs do not seek 

a preservation of the status quo, but rather they seek 

fundamental change in how SSFs are regulated by 

the FEC, which would undoubtedly require new 

agency guidance and other burdens that are at least 

equal, if not far greater, than any burdens that 

would result from establishing a separate Super PAC 

to engage in the unlimited fundraising the plaintiffs 

desire. Finally, and perhaps most importantly, " 

'[t]he presumption of constitutionality which 

attaches to every Act of Congress is ... an equity to be 

considered in favor of [the government] in balancing 

hardships.'" Bowen u. Kendrick, 483 U.S. 1304, 1304, 

108 S. Ct. 1, 97 L.Ed.2d 787 (1987) (Rehnquist, C.J., 

in chambers) (quoting Walters u. Nat 'l Ass 'n of 
70a 

8 U.S. 1323, 1324, 105 S. Ct. 

84)). That equity is in full 

would also not be served by 

e relief requested by the 

ed above, the provisions 

plaintiffs serve important 

 intended to protect the 

ctoral process. Therefore, 

nt of those provisions would 

blic interest, absent a strong 

endment reason for doing so. 

s have failed to satisfy any of 

unction factors in connection 

dment claims, and thus they 

 plausible claim for relief. 

asons discussed above, the 

Preliminary Injunction, ECF 

the same reasons, the FEC's 

 No.8, is GRANTED. 

Order accompanies this 

71a 

APPENDIXC 

UNITED STATES CODE 

TITLE 52-VOTING AND ELECTIONS 

SUBTITLE III-FEDERAL CAMPAIGN 

FINANCE 

CHAPTER 301-FEDERAL ELECTION 

CAMPAIGNS 

SUBCHAPTER I-DISCLOSURE OF FEDERAL 

CAMPAIGN FUNDS 

Sec. 30101 Definitions 

(4) The term "political committee" means--(A) 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; or 

(B) any separate segregated fund established under 

the provisions of section 30118(b) of this title; .... 

(8)(A) The term "contribution" includes--

(i) any gift, subscription, loan, advance, or deposit of 

money or anything of value made by any person for the purpose of influencing any election for Federal 

office; or 

(ii) the payment by any person of compensation for 

the personal services of another person which are 

rendered to a political committee without charge for 

any purpose. 
72a 

on" does not include-- ... 

 or obligation incurred by a 

organization which, under 

title, would not constitute an 

h corporation or labor 

ture" includes--

yment, distribution, loan, 

ft of money or anything of 

person for the purpose of 

for Federal office; and 

 promise, or agreement to 

re" does not include-- ... 

ion by any membership 

oration to its members, 

cutive or administrative 

embership organization or 

ganized primarily for the 

he nomination for election, or 

ual to Federal office, except 

urred by a membership 

a labor organization) or by a 

ibutable to a communication 

he election or defeat of a 

andidate (other than a 

y devoted to subjects other 

cy of the election or defeat of 

didate), shall, if such costs 

election, be reported to the 

73a 

Commission in accordance with section 

30104(a)(4)(A)(i) of this title, and in accordance with 

section 30104(a)(4)(A)(ii) of this title with respect to 

any general election; ... 

(v) any payment made or obligation incurred by a 

corporation or a labor organization which, under 

section 30118(b) of this title, would not constitute an 

expenditure by such corporation or labor 

organization; .... 

Sec. 30104 Reporting requirements 

(a) Receipts and disbursements by treasurers of 

political committee; filing requirements. 

(1) Each treasurer of a political committee shall file 

reports of receipts and disbursements in accordance 

with the provisions of this subsection. The treasurer 

shall sign each such report .... 

(4) All political committees other than authorized 

committees of a candidate shall file either--

(A) 

(i) quarterly reports, in a calendar year in which a 

regularly scheduled general election is held, which 

shall be filed no later than the 15th day after the last 

day of each calendar quarter: except that the report 

for the quarter ending on December 31 of such 

calendar year shall be filed no later than January 31 

of the following calendar year; 
4a 

which shall be filed no later 

 (or posted by any of the 

l, certified mail, priority 

nfirmation, or express mail 

mation, or delivered to an 

e with an on-line tracking 

ered no later than the 15th 

 in which the committee 

r expenditure on behalf of a 

ion, and which shall be 

y before the election; 

ion report, which shall be 

30th day after the general 

be complete as of the 20th 

ction; and 

 year, a report covering the 

y 1 and ending June 30, 

later than July 31 and a 

od beginning July 1 and 

ich shall be filed no later 

llowing calendar year; or 

l calendar years which shall 

 20th day after the last day 

 complete as of the last day 

 in lieu of filing the reports 

mber and December of any 

y scheduled general election 

ction report shall be filed in 

ph (2)(A)(i), a post-general 

 filed in accordance with 

 a year end report shall be 

nuary 31 of the following 

thstanding the preceding 

75a 

sentence, a national committee of a political party 

shall file the reports required under subparagraph 

(B). 

(5) If a designation, report, or statement filed 

pursuant to this Act (other than under paragraph 

(2)(A)(i) or (4)(A)(ii) or subsection (g)(1)) is sent by 

registered mail, certified mail, priority mail having a 

delivery confirmation, or express mail having a 

delivery confirmation, the United States postmark 

shall be considered the date of filing the designation, 

report or statement. If a designation, report or 

statement filed pursuant to this Act (other than 

under paragraph (2)(A)(i) or (4)(A)(ii), or subsection 

(g)(1)) is sent by an overnight delivery service with 

an on-line tracking system, the date on the proof of 

delivery to the delivery service shall be considered 

the date of filing of the designation, report, or 

statement .... 

(7) The reports required to be filed by this 

subsection shall be cumulative during the calendar 

year to which they relate, but where there has been 

no change in an item reported in a previous report 

during such year, only the amount need be carried 

forward. 

(8) The requirement for a political committee to file 

a quarterly report under paragraph (2)(A)(iii) or 

paragraph (4)(A)(i) shall be waived if such committee 

is required to file a pre-election report under 

paragraph (2)(A)(i), or paragraph (4)(A)(ii) during the period beginning on the 5th day after the close of the 

calendar quarter and ending on the 15th day after 

the close ofthe calendar quarter .... 
6a 

s on contributions and 

butions. 

n subsection (i) and section 

no person shall make 

al committee (other than a 

subparagraph (D)) in any 

 the aggregate, exceed $ 

ibutions. 

hich begins on January 1 of 

nd ends on December 31 of 

d year, no individual may 

gating more than--

case of contributions to 

authorized committees of 

 of any other contributions, 

 37,500 may be attributable 

al committees which are not 

tional political parties. 

t 

1 

' 

.. 

• 

I 

t 

I 

, 

1 

! 

77a 

Sec. 30118 Contributions or expenditures by 

national banks, corporations, or labor organizations 

(a) In general. It is unlawful for any national bank, 

or any corporation organized by authority of any law of Congress, to make a contribution or expenditure in connection with any election to any political office, or 

in connection with any primary election or political 

convention or caucus held to select candidates for 

any political office, or for any corporation whatever, 

or any labor organization, to make a contribution or 

expenditure in connection with any election at which 

presidential and vice presidential electors or a 

Senator or Representative in, or a Delegate or 

Resident Commissioner to, Congress are to be voted 

for, or in connection with any primary election or 

political convention or caucus held to select 

candidates for any of the foregoing offices, or for any 

candidate, political committee, or other person 

knowingly to accept or receive any contribution 

prohibited by this section, or any officer or any 

director of any corporation or any national bank or 

any officer of any labor organization to consent to any contribution or expenditure by the corporation, 

national bank, or labor organization, as the case may 

be, prohibited by this section. 

(b) Definitions; particular activities prohibited or 

allowed .... 

(2) For purposes of this section and section 12(h) of 

the Public Utility Holding Company Act (15 U.S.C. 

79l(h)), the term "contribution or expenditure" 

includes a contribution or expenditure, as those 
78a 

section 30101 of this title, and 

direct or indirect payment, 

ance, deposit, or gift of money, 

thing of value (except a loan of 

al or State bank made in 

applicable banking laws and 

ordinary course of business) to 

aign committee, or political 

in connection with any election 

eferred to in this section or for 

oneering communication, but 

(A) communications by a 

ockholders and executive or 

nel and their families or by a 

ts members and their families 

npartisan registration and get

s by a corporation aimed at its 

xecutive or administrative 

r families, or by a labor 

at its members and their 

establishment, administration, 

contributions to a separate 

 utilized for political purposes 

bor organization, membership 

tive, or corporation without 

ed in subparagraphs (B), (C), 

awful--

or a separate segregated fund 

oration, to solicit contributions 

m any person other than its 

r families and its executive or 

79a 

administrative personnel and their families, and 

(ii) for a labor organization, or a separate segregated 

fund established by a labor organization, to solicit 

contributions to such a fund from any person other 

than its members and their families. 

(B) It shall not be unlawful under this section for a 

corporation, a labor organization, or a separate 

segregated fund established by such corporation or such labor organization, to make 2 written solicitations for contributions during the calendar 

year from any stockholder, executive or 

administrative personnel, or employee of a 

corporation or the families of such persons. A 

solicitation under this subparagraph may be made 

only by mail addressed to stockholders, executive or 

administrative personnel, or employees at their 

residence and shall be so designed that the 

corporation, labor organization, or separate 

segregated fund conducting such solicitation cannot 

determine who makes a contribution of $ 50 or less 

as a result of such solicitation and who does not 

make such a contribution. 

(C) This paragraph shall not prevent a membership 

organization, cooperative, or corporation without 

capital stock, or a separate segregated fund 

established by a membership organization, 

cooperative, or corporation without capital stock, 

from soliciting contributions to such a fund from 

members of such organization, cooperative, or 

corporation without capital stock. 

(D) This paragraph shall not prevent a trade 

association or a separate segregated fund established 
80a 

iation from soliciting contributions 

ockholders and executive or 

ersonnel of the member corporations 

sociation and the families of such 

personnel to the extent that such 

ch stockholders and personnel, and 

as been separately and specifically 

member corporation involved, and 

poration does not approve any such 

ore than one such trade association 

ear. 

ding any other law, any method of 

ary contributions or of facilitating 

oluntary contributions to a separate 

d established by a corporation, 

w to corporations with regard to 

nd executive or administrative 

l also be permitted to labor 

th regard to their members .... 

 of this section, the term "executive 

ve personnel" means individuals 

orporation who are paid on a salary, 

hourly, basis and who have 

managerial, professional, or 

onsibilities. 
'· \ 

No. 14-__ 

lOll; 02? 49 M''· IQ: 39 

IN THE ...... , . 1 

~upreme qcourt of tbe Wnftlll ~~~~ie:s~·_· ~- i\ ·"" L 

STOP THIS INSANITY, INC., et al., 

Petitioners, 

v. 

FEDERAL ELECTION COMMISSION, 

Respondent. 

CERTIFICATE OF SERVICE 

I, Tillman J. Breckenridge, certify that on this 29th day of September, 2014, 

three copies of the Petition for Writ of Certiorari for Petitioners, Stop This Insanity, 

Inc., Stop This Insanity, Inc. Employee Leadership Fund, and Glengary Inc. were 

sent by overnight delivery to: 

Lisa J. Stevenson 

Deputy General Counsel- Law 

FEDERAL ELECTION COMMISSION 

999 E Street, N.W. 

Washington, D.C. 20463 

Counsel for Respondent Federal Election Commission 

Donald B. Verrilli, Jr. 

U.S. Department of Justice 

950 Pennsylvania Ave., N. W. 

Room 5614 

Washington, D.C. 20530-0001 

Solicitor General of the United States. 

I further certify that all parties required to be served have been served. 

I declare under penalty of perjury that the foregoing is true and correct. 
Executed on September 29, 2014 

- 2 -

Tillman J. Brecke 

Reed Smith LLP 

1301 K Street, N.W. 

Washington, D.C. 20005 

(202) 414-9285 

Counsel for Petitioner 
No. 14-__ 

STOP THIS INSANITY, INC., et al., 

Petitioners, 

V. 

FEDERAL ELECTION COMMISSION, 

Respondent. 

;"' L r J -~ .. · 

WORD COUNT CERTIFICATION 

··- : ;~. ' ~ 

I'•···H 

As required by Supreme Court Rule 33.l(h), I certify that the Petition for 

Certiorari for Petitioners Stop This Insanity, Inc., Stop This Insanity, Inc. Employee 

Leadership Fund, and Glengary Inc. contains 8,537 words, excluding the parts of 

the document that are exempted by Supreme Court Rule 33.l(d). 

I declare under the penalty of perjury that the foregoing is true and correct. 

Executed on 29 September, 2014. 

~~~~d-rf{,"' Tillman J. Brec enndge ) ) 

Reed Smith LLP 

1301 K Street, N.W. 

Washington, D.C. 20005 

(202) 414-9285 

Counsel for Petitioner