No. 08-1977

United States Court of Appeals for the Fourth Circuit

____________

The Real Truth About Obama, Inc., Plaintiff-Appellant

v.

Federal Election Commission and

United States Department of Justice, Defendants-Appellees

____________

Appeal from the United States District Court for the

Eastern District of Virginia, Richmond Division

____________

Petition for Rehearing En Banc

____________

Michael Boos

LAW OFFICE OF MICHAEL BOOS

4101 Chain Bridge Road, Suite 313

Fairfax, VA 22030

703/691-7717

Counsel for Plaintiff-Appellant

James Bopp, Jr.

Richard E. Coleson

BOPP, COLESON & BOSTROM

1 South Sixth Street

Terre Haute, IN 47807-3510

812/232-2434

Lead Counsel for Plaintiff-Appellant

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Table of Contents

Table of Authorities.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

I. Introduction: The Panel Decision Conflicts With Supreme Court and

Fourth Circuit Decisions.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II. Introduction: The Panel Decision Conflicts With Other Circuits’ Decisions on Exceptionally Important Issues.. . . . . . . . . . . . . . . . . . . . . . . . . . . 2

III. This Decision Conflicts With U.S. Supreme Court Decisions on

Preliminary-Injunction Standards.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

IV. This Decision Conflicts With Fourth Circuit and U.S. Supreme Court

Decisions.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

V. This Decision Conflicts With Other Circuits’ Decisions.. . . . . . . . . . . . . 14

VI. En Banc Reconsideration Is Required to Repair Created Confusion.. . . . 15

Certificate of Service

i

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Table of Authorities

Cases

ACLU of Nevada v. Heller, 378 F.3d 979 (9th Cir. 2004). . . . . . . . . . . . . . . . . . . . 2

Anderson v. Spear, 356 F.3d 651 (6th Cir. 2004).. . . . . . . . . . . . . . . . . . . . . . . . . . 2

Booth v. Maryland, 327 F.3d 377 (4th Cir. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . 8

Broward Coal. of Condos., Homeowners Ass’ns. and Cmty Orgs. v. Browning,

No. 08-445, 2009 WL 1457972 (N.D. Fla.). . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Buckley v. Valeo, 424 U.S. 1 (1976). . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2, 9, 12, 14

California Pro-Life Council v. Getman, 328 F.3d 1088 (9th Cir. 2003). . . . . . . . 15

Center for Individual Freedom v. Carmouche, 449 F.3d 655 (5th Cir. 2006).. . . . 2

Center for Individual Freedom v. Ireland, 613 F. Supp. 2d 777 (S.D. W. Va.

2009) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Colorado Right to Life Comm. v. Coffman, 498 F.3d 1137 (10th Cir. 2007).. . . . . 7

FEC v. Christian Action Network, 110 F.3d 1049 (4th Cir. 1997).. . . . . . 1, 7-8, 14

FEC v. Furgatch, 807 F.2d 857 (9th Cir. 1987). . . . . . . . . . . . . . . . . . . . . . 3, 14-15

FEC v. Machinists Non-Partisan Political League, 655 F.2d 380 (D.C. Cir.

1981). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

FEC v. Massachusetts Citizens for Life, 479 U.S. 238 (1986). . . . . . . . . . . . . . . . . 1

FEC v. Wisconsin Right to Life, 127 S. Ct. 2652 (2007). . . . . . . . . 1, 3-6, 8, 10-13

Giovani Carandola Ltd. v. Bason, 303 F.3d 507, 511 (4th Cir. 2002).. . . . . . . . . . 7

Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418

(2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 4

ii

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Marks v. United States, 430 U.S. 188 (1977). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Mazureck v. Armstrong, 520 U.S. 968 (1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

McConnell v. FEC, 540 U.S. 93 (2003). . . . . . . . . . . . . . . . . . . . . . . . 1, 2, 8, 12, 14

McMellon v. United States, 387 F.3d 329 (4th Cir. 2004). . . . . . . . . . . . . . . . . . . . 8

Mentavalos v. Anderson, 249 F.3d 301 (4th Cir. 2001). . . . . . . . . . . . . . . . . . . . . . 8

Miller v. Cunningham, 512 F.3d 98 (4th Cir. 2007).. . . . . . . . . . . . . . . . . . . . . . . 15

National Right to Work Legal Defense and Education Fund v. Herbert, 581 F.

Supp. 2d 1132 (D. Utah, 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

New Mexico Youth Organized v. Herrera, No. 08-1156, slip. op. (D. N.M.

Aug. 3, 2009).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

North Carolina Right to Life v. Leake, 525 F.3d 274 (4th Cir. 2008). . . . 1-3, 5-12,

14-15

Potomac Elec. Power Co. v. Electric Motor & Supply, Inc., 262 F.3d 260 (4th

Cir. 2001).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

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

United States v. Chong, 285 F.3d 343 (4th Cir. 2002). . . . . . . . . . . . . . . . . . . . . . . 8

United States v. Playboy Entm’t Group, Inc., 529 U.S. 803 (2000).. . . . . . . . . . . . 6

United States v. Prince-Oyibo, 320 F.3d 494 (4th Cir. 2003). . . . . . . . . . . . . 1, 7-8

United States v. Simms, 441 F.3d 313 (4th Cir. 2006). . . . . . . . . . . . . . . . . . . . . . . 8

Virginia Society for Human Life v. FEC, 263 F.3d 379 (4th Cir. 2001). . 1, 7-8, 14

Winter v. Natural Resources Defense Counsel, 129 S. Ct. 365 (2008). . . . . . . . . . 1

iii

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Constitutions, Statutes & Rules

11 C.F.R. § 100.22(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 11-15

11 C.F.R. § 100.57.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 13

11 C.F.R. § 114.15.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 13, 15

Federal Rule of Appellate Procedure 35(b)(1)(A). . . . . . . . . . . . . . . . . . . . . . . . . . 1

Federal Rule of Appellate Procedure 35(b)(1)(B). . . . . . . . . . . . . . . . . . . . . . . . . . 2

U.S. Const. amend. I. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 6-7, 9-11

iv

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I. Introduction: The Panel Decision Conflicts With

Supreme Court and Fourth Circuit Decisions.

Under Federal Rule of Appellate Procedure 35(b)(1)(A), en banc reconsideration is required because the panel decision conflicts with decisions of the United

States Supreme Court—Winter v. Natural Resources Defense Counsel, 129 S.

Ct. 365 (2008) (preliminary injunction standard); Gonzales v. O Centro Espirita

Beneficente Uniao do Vegetal, 546 U.S. 418 (2006) (same); FEC v. Wisconsin

Right to Life, 127 S. Ct. 2652 (2007) (“WRTL-II”) (campaign-finance law);

McConnell v. FEC, 540 U.S. 93 (2003) (same); FEC v. Massachusetts Citizens for

Life, 479 U.S. 238 (1986) (“MCFL”) (same); and Buckley v. Valeo, 424 U.S. 1

(1976) (same)—and decisions of this Court—United States v. Prince-Oyibo, 320

F.3d 494 (4th Cir. 2003) (overruling panel precedent); North Carolina Right to

Life v. Leake, 525 F.3d 274 (4th Cir. 2008) (campaign-finance law); Virginia Society for Human Life v. FEC, 263 F.3d 379 (4th Cir. 2001) (“VSHL”) (same); FEC v.

Christian Action Network, 110 F.3d 1049 (4th Cir. 1997) (“CAN-II”) (same)—so

en banc consideration is necessary to secure and maintain uniformity of the

Court’s decisions. See infra.

1

 RTAO challenged the following as unconstitutional under Leake, WRTL-II,

1

and other listed precedents: (1) 11 C.F.R. § 100.22(b) (defining non-“magic

words” communications as “express advocacy”); (2) 11 C.F.R. § 100.57 (converting donation into regulable “contributions” where made in response to solicitations to “support or oppose” candidates); (3) FEC PAC-status policy; and (4) 11

C.F.R. § 114.15 (redefining WRTL-II’s “appeal to vote” test, 127 S. Ct. at 2667).

1

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II. Introduction: The Panel Decision Conflicts with

Other Circuits’ Decisions on Exceptionally Important Issues.

Under Federal Rule of Appellate Procedure 35(b)(1)(B), en banc reconsideration is required because the panel decision involves the following questions of

exceptional importance in which the panel decision conflicts with (indicated) authoritative decisions of other United States Courts of Appeals that have addressed

the issues:

(1) Whether “express advocacy” requires “magic words,” McConnell, 540 U.S.

at 126, 216-19 (equating “express advocacy” with “magic words”), i.e., “express

words of advocacy of election or defeat, such as ‘vote for,’” Buckley, 424 U.S. at

44 n.52. See Center for Individual Freedom v. Carmouche, 449 F.3d 655, 664-65

(5th Cir. 2006); Anderson v. Spear, 356 F.3d 651, 664 (6th Cir. 2004);

(2) Whether post-McConnell, 540 U.S. 93, the express-advocacy construction

must still be imposed on vague and overbroad campaign-finance regulations (that

are readily susceptible to such a construction) to save them from unconstitutionality. See Carmouche, 449 F.3d at 662-65; ACLU of Nevada v. Heller, 378 F.3d 979,

985 (9th Cir. 2004); Anderson, 356 F.3d at 663;

(3) Whether the “unambiguously campaign related” principle recognized and

employed in Buckley, 424 U.S. at 43-48, 76-81, and Leake, 525 F.3d at 281-83,

287-88, is (a) a threshold requirement that campaign-finance regulations defining

2

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regulable communications and contributions must meet prior to application of the

appropriate level of scrutiny and therefore (b) the basis for recognized implementing tests for determining the “regulable, election-related speech” considered in

determining “major purpose” for “political committee” status, id. at 287. See FEC

v. Furgatch, 807 F.2d 857, 860 (9th Cir. 1987); FEC v. Florida for Kennedy

Comm., 681 F.2d 1281, 1287 & n.10 (11th Cir. 1982); FEC v. Machinists NonPartisan Political League, 655 F.2d 380, 391 & n.23 (D.C. Cir. 1981). See infra.

III. This Decision Conflicts With U.S. Supreme Court

Decisions on Preliminary-Injunction Standards.

This appeal is about an issue-advocacy group (“RTAO”), seeking to engage in 2

highly-protected issue advocacy, being captured by FEC regulations that are

clearly unconstitutional under binding precedents, especially Leake, 525 F.3d 274,

and WRTL-II, 127 S. Ct. 2652. See infra. RTAO needed a preliminary injunction

to vindicate its rights. In issue-advocacy cases, WRTL-II mandated speedy, lowburden, speech-friendly resolution, which means that preliminary injunctions 3

 The panel’s labeling of RTAO as an “‘issue-adversary’” group is erroneous. 2

See Slip op. at 3 (emphasis added).

 This requires an “objective” test as to a communication’s content, not any

3

intent-and-effect test, with “minimal if any discovery, to allow parties to resolve

disputes quickly without chilling speech through the threat of burdensome litigation,” and with “the benefit of any doubt [going] to protecting rather than stifling

speech.” WRTL-II, 127 S. Ct. at 2666 (Roberts, C.J., joined by Alito, J.). This

opinion (“WRTL-II”), states the holding. See Marks v. United States, 430 U.S. 188,

193 (1977).

3

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should be available. Even the WRTL-II dissent said that preliminary injunctions

were the necessary solution to keep “the as-applied remedy . . . [from] prov[ing]

. . . ‘[i]nadequate’ because such challenges cannot be litigated quickly enough to

avoid being mooted,” and so being “unworkable.” See 127 S. Ct. at 2704.

That means that preliminary injunctions must be realistically available under

standards that favor free speech. Although RTAO devoted considerable briefing to

the mandatory speech-protective standards to be applied in issue-advocacy cases,4

the panel decision ignored the First Amendment context entirely, actually creating

a heightened standard for RTAO to meet instead of the speech-protective one required. See infra. In doing so, the panel decision conflicts not only with WRTL-II,

but also with the preliminary-injunction standards established in Winter, 129 S. Ct.

365, and Gonzales, 546 U.S. 418. See infra. This Court should grant a rehearing

en banc to clearly establish that its speech-protective precedents (and the First

Amendment) mandate speech-protective preliminary injunction standards.

While the panel recited Winter’s “likely” test, it created an enhanced burden

5

 RTAO devoted Part II of its Reply Brief to asking the panel to “clarify that 4

where issue advocacy is involved preliminary injunction standards must be

speech-protective,” and it set out ten ways in which free-speech cases were unique

in this context and entitled to special protections, along with controlling authority.

 “‘A plaintiff seeking a preliminary injunction must establish that he is likely

5

to succeed on the merits, that he is likely to suffer irreparable harm in the absence

of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.’” Slip op. at 5 (quoting, Winter, 129 S. Ct. at 374)

4

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based on the panel assertion of the complexity of campaign-finance law:

Notwithstanding the numerous Supreme Court opinions on the subject, the

regulation of speech related to political campaigns remains a difficult and

complicated area of law that is still developing. And for that reason, as well

as the stringent preliminary injunction standard, [RTAO] bears a heavy burden in showing its likelihood of success.

Slip op. at 10 (emphasis added).

6

The notion that RTAO had a “heavy burden” of persuasion because of the

panel’s perception that the law is complex was erroneous on multiple levels. First,

the law is not complex. If the panel had simply followed Leake, it would have

found the law simple and clearly establishing that RTAO had likely merits success

and irreparable harm and should have received the injunction. See infra.

Second, no speaker may be penalized because the law is (or a panel perceives

it to be) complex. There is no authority for such a notion, and the panel cites none.

The notion that free speech may be denied because courts have obscured the simple mandate that “Congress shall make no law . . . abridging the freedom of

(emphasis added).

 The burden here is less “stringent” than the panel asserts. The panel relies

6

heavily on the requirement of a “clear showing,” id. (emphasis added), to make the

“likely” requirement more stringent. But “clear showing” applies only to whether

there is “likely” merits success and irreparable harm. It does not elevate “likely.”

And in issue-advocacy cases, burdens are lowered, not raised. See, e.g., WRTL-II,

127 S. Ct. at 2667 (“give the benefit of any doubt to protecting rather than stifling

speech”), 2667 (defining issue advocacy as providing information about candidate

without inviting vote), 2669 n.7 (“in a debatable case, the tie is resolved in favor

of protecting speech”), 2674 (“benefit of the doubt to speech, not censorship”).

5

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speech” is contrary to the First Amendment.

Third, even if applicable law were complex, any doubts about its constitutionality work to the advantage of the speaker, not the censor. See supra at note 6.

“Complexity” would be an argument for a lowered, not heightened, preliminary

injunction burden on speakers in First Amendment cases.

Fourth, any heightened burden, even if it were appropriate, ultimately falls on

the FEC, not RTAO, because in free-speech cases “the burdens at the preliminary

injunction stage track the burdens at trial.” Gonzalez, 546 U.S. at 428. When Winter spoke of a “clear showing,” 129 S. Ct. at 376, it cited Mazureck v. Armstrong,

520 U.S. 968 (1997), which held that the “clear showing” applies to “the burden of

persuasion,” id. at 972. That burden of persuasion, in a First Amendment case,

requires the government, even at the preliminary injunction stage, to prove that it

has a compelling interest to justify its regulation, that any regulation is narrowly

tailored, and that any proferred less-restrictive means are inadequate to serve a

compelling interest. See Gonzalez, 546 U.S. at 428. See also WRTL-II, 127 S. Ct. 7

at 2664 (government bears burden of proving constitutionality of all applications

of campaign-finance law); United States v. Playboy Entm’t Group, Inc., 529 U.S.

 Under Leake, the government could not have met its strict-scrutiny burdens

7

because, inter-alia, the government has no compelling interest in regulating activity that is not unambiguously campaign related and Leake has already set out the

narrowly tailored means of regulation in this area. See infra.

6

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803, 816 (2000) (First Amendment cases require government to demonstrate constitutionality); Colorado Right to Life Comm. v. Coffman, 498 F.3d 1137, 1145

(10th Cir. 2007) (where election laws affect free speech, government bears the

burden of proving them constitutional as applied to speakers). The panel erroneously ignored the First Amendment context in placing a heightened burden on

RTAO.

Also, in a First Amendment case, irreparable harm is “‘inseparably linked’” to

the likelihood of success on the merits, Giovani Carandola Ltd. v. Bason, 303

F.3d 507, 511 (4th Cir. 2002) (citation omitted), so the irreparable harm determination cannot be made until it has been determined whether the plaintiff has a likelihood of success on the merits. Id. Bason’s holding on this point is unchanged by

Winter, which was not a First Amendment case. The panel decision again failed to

take notice of this First Amendment requirement in setting out its standards. As

shall be shown, RTAO had likely success on the merits and so irreparable harm

automatically followed.

IV. This Decision Conflicts With

Fourth Circuit and U.S. Supreme Court Decisions.

The panel decision conflicts with United States v. Prince-Oyibo, 320 F.3d 494

(4th Cir. 2003), Leake, 525 F.3d 274, VSHL, 263 F.3d 379, and CAN-II, 110 F.3d

1049. These are considered seriatim.

7

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Prince-Oyibo. The panel decision conflicts with circuit precedent forbidding a

later panel from overruling (explicitly or implicitly) the decision of a prior panel—

only the en banc court or the Supreme Court can overrule a panel’s precedent. See,

e.g., Prince-Oyibo, 320 F.3d at 497-98; Scotts Co. v. United Indus. Corp., 315

F.3d 264, 271 n. 2 (4th Cir. 2002); United States v. Chong, 285 F.3d 343, 346 (4th

Cir. 2002); Potomac Elec. Power Co. v. Electric Motor & Supply, Inc., 262 F.3d

260, 264 n. 2 (4th Cir. 2001), Mentavalos v. Anderson, 249 F.3d 301, 312 n.4 (4th

Cir. 2001).8

Yet the panel decision implicitly overruled Leake, VSHL, and CAN-II as to

whether “express advocacy” requires “magic words,” and it implicitly overruled

Leake’s holdings as to the controlling unambiguously-campaign-related principle

and its implementing tests controlling which communications are regulable (only

magic-words, express-advocacy “independent expenditures” and appeal-to-vote

“electioneering communications”) and which groups are subject to imposed PAC

status (only those who primarily engage in regulable, election-related speech). See

infra. Since Leake was decided after McConnell, 540 U.S. 93, and WRTL-II, 127

S. Ct. 2652, no intervening Supreme Court decision overruled Leake.

 When published panel opinions are in direct conflict on a given issue, the

8

earliest opinion controls, unless the prior opinion has been overruled by an intervening opinion from this court sitting en banc or the Supreme Court. United States

v. Simms, 441 F.3d 313, 318 (4th Cir. 2006); Booth v. Maryland, 327 F.3d 377,

383 (4th Cir. 2003); McMellon v. United States, 387 F.3d 329 (4th Cir. 2004).

8

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Leake. Leake showed the simplicity of what the present panel considered “a

difficult and complicated area of the law.” Slip op. at 10. The panel acknowledged

that Appellant (“RTAO”) “relied heavily on” Leake, slip op. at 8, but ignored the

following uncomplicated First Amendment analysis from Leake.

First, Leake held that Buckley, 424 U.S. 1, “cabin[ed]” campaign-finance law

with the unambiguously-campaign-related principle:

TheBuckleyCourt therefore recognized the need to cabin legislative authority

over electionsin a manner thatsufficiently safeguards vital First Amendment

freedoms. It did so by demarcating a boundary between regulable election-related activity and constitutionally protected political speech: after

Buckley, campaign finance laws may constitutionally regulate only those

actions that are “unambiguously related to the campaign of a particular . . .

candidate.” Id. at 80. This is because only unambiguously campaign related

communications have a sufficiently close relationship to the government’s

acknowledged interest in preventing corruption to be constitutionally

regulable. Id.

Leake, 525 F.3d at 281.

9

Second, Leake held that any “corruption” interest applies to “only those actions that are ‘unambiguously related to the campaign of a particular . . . candidate.’” Id. (citation omitted).

 See also New Mexico Youth Organized v. Herrera, No. 08-1156, slip. op. (D. 9

N.M. Aug. 3, 2009) (following Leake in holding that “unambiguously campaign

related” requirement is threshold test); Center for Individual Freedom v. Ireland,

613 F. Supp. 2d 777 (S.D. W. Va. 2009) (same); Broward Coal. of Condos.,

Homeowners Ass’ns. and Cmty Orgs. v. Browning, No. 08-445, 2009 WL 1457972

(N.D. Fla.) (same); National Right to Work Legal Defense and Education Fund v.

Herbert, 581 F. Supp. 2d 1132 (D. Utah, 2008) (same).

9

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Third, Leake held that only two types of communications are “unambiguously

campaign related” (and so regulable), (1) magic-words express advocacy and (2)

appeal-to-vote “electioneering communications”:

The Supreme Court has identified two categories of communication as being

unambiguously campaign related. First, “express advocacy,” defined as a

communication that uses specific election-related words. Second, “the functional equivalent of express advocacy,” defined as an “electioneering communication” that “is susceptible of no reasonable interpretation other than as

an appeal to vote for or against a specific candidate.” 

Id. at 283 (quoting WRTL-II, 127 S. Ct. at 2667).10

Fourth, Leake held that Buckley employed the unambiguously-campaign-related principle to limit the scope of groups on which “political committee”

(“PAC”) status may be imposed to those having “the major purpose” of nominating or electing candidates, with “major purpose” determined as an “empirical judgment” based solely on “regulable, election-related speech”:

Buckley applied this “unambiguously campaign related” requirement when

analyzing the permissible scope of political committee regulation. Since

designation as a political committee often entails a significant regulatory

burden—as evidenced by the requirements imposed by North Carolina—the

Court held that only entities “under the control of a candidate or the major

purpose of which is the nomination or election of a candidate” can be so

designated. Id. at 79 (emphasis added). . . . Buckley’s articulation of the permissible scope of political committee regulation is best understood as an

empirical judgment as to whether an organization primarily engages in

regulable, election-related speech.

 Only these two types are regulable because they strike the right “balance

10

between the legislature’s authority to regulate elections and the public’s fundamental First Amendment right to engage in political speech.” 525 F.3d at 284.

10

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Leake, 525 F.3d at 287 (emphasis added).

Applying Leake’s precepts to the present case is simple. The FEC regulations

and policy at issue are all unconstitutional for regulating First Amendment activity

that is not unambiguously campaign related. They are unconstitutional because

they lack a compelling interest (being beyond those unambiguously-campaign-related activities to which a corruption interest may attach).

The FEC’s alternate express-advocacy definition (11 C.F.R. § 100.22(b)) is 11

unconstitutional because it is not one of the only two types of communications that

Leake said may be regulated, supra, and because Leake held that express advocacy

requires magic words (such as “vote for”), 525 F.3d at 282. The present panel upheld § 100.22(b) because its “language corresponds to the definition of the functional equivalent of express advocacy given in [WRTL-II].” Slip. op. at 11. This

analysis is fundamentally flawed as inconsistent with U.S. Supreme Court prece-

 While 11 C.F.R. § 100.22(a) is a proper magic-words, express-advocacy test, 11

the challenged provision at § 100.22(b) provides this alternate definition:

Expressly advocating means any communication that . . . (b) When taken

as a whole and with limited reference to external events, such as the proximity to the election, could only be interpreted by a reasonable person as containing advocacy of the election or defeat of one or more clearly identified

candidate(s) because—

(1) The electoral portion ofthe communication is unmistakable, unambiguous, and suggestive of only one meaning; and

(2) Reasonable minds could not differ asto whether it encourages actions

to elect or defeat one or more clearly identified candidate(s) or encourages

some other kind of action.

11

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dent. WRTL-II’s appeal-to-vote test, 127 S. Ct. at 2667, applies only to communications that already meet the federal definition of “electioneering communications.” See Leake, 525 F.3d at 282. Ignoring this clear statement, the panel tried to

distinguish Leake as dealing with a statute subject to “multiple interpretations”

and uphold § 100.22(b) for requiring that there be “only” one. Slip. op. at 12. This

ignores WRTL-II’s clear holding that the appeal-to-vote test is inapplicable beyond

the electioneering-communication context. See WRTL-II, 127 S. Ct. at 2669 n.7

(“[T]est is only triggered if the speech meets the brightline requirements of [the

“electioneering communication” definition] in the first place.”). In fact, WRTL-II

acknowledged that the test would be “impermissibly vague” if not cabined by the

electioneering-communication definition. Id. And a non-magic words express-advocacy definition conflicts with the clear statements in McConnell and Buckley

that, where the “express advocacy” test applies, it is a “magic words” test.12

And the constitutional flaw of both the FEC’s alternate express-advocacy defi-

 In McConnell, the Court expressly and repeatedly equated “express advo12

cacy” with “magic words” (such as “vote for”). See, e.g., 540 U.S. at 126, 191-93

217-19. McConnell’s “functionally meaningless” statement about the express-advocacy line, id. at 193, did not eliminate “express advocacy” as a category of regulated speech requiring “magic words,” but rather McConnell used that analysis to

add regulation of “electioneering communications” to regulation of magic-words

express advocacy. In WRTL-II, the Justices unanimously equated “express advocacy” with “magic words.” See 127 S. Ct. at 2669 n.7 (Alito, C.J., joined by Alito,

J.), 2681 (Scalia, J., joined by Kennedy & Thomas, JJ., concurring in part and concurring in judgment), 2692 (Souter, J., joined by Stevens, Ginsburg, & Breyer, JJ.,

dissenting).

12

Case: 08-1977 Document: 73-1 Date Filed: 08/17/2009 Page: 17
nition (11 C.F.R. § 100.22(b)) and its rule (11 C.F.R. § 114.15) purporting to

implement WRTL-II’s appeal-to-vote test, 127 S. Ct. at 2667, is starkly illustrated

in this case by the fact that the FEC and district court differed as to the interpretation of an ad at issue. The FEC said that “Change” contained no “appeal to vote”

under WRTL-II and so was not a prohibited “electioneering communication” under

§ 114.15 (and so also was not “express advocacy”). The district court disagreed,

leapfrogging whether it was a prohibited “electioneering communication” under

§ 114.15 to declare it prohibited express advocacy under § 100.22(b). See JA–112

n.15.13

The FEC’s PAC-status enforcement policy does not follow Leake’s formula

for determining major purpose (being instead a forbidden we-know-it-when-wesee-it test). Further development of the merits is impossible here, but the forego- 14

 The panel decision’s statement that “the district court recognized also that

13

[RTAO] had not made a showing that its proposed communications would violate

the regulations as written,” slip op. at 15, is erroneous in light of the district

court’s holding that both communications contained express advocacy. The district court and panel both rejected all of the FEC’s similar standing arguments as

to lack of harm. And what the district court actually said was that RTAO was

“free” to speak so long as it complied with challenged regulations, JA–126, which

it considered constitutional and so posing no harm.

 While space precludes development here, 11 C.F.R. § 100.57 conflicts with 14

Buckley’s application of its unambiguously-campaign-related principle to narrow

the definition of what constitutionally may be considered a regulable “contribution” in a way that precludes the FEC’s rule permitting mere donations to be converted to “contributions” based on vague criteria inconsistent with Buckley’s and

Leake’s unambiguously-campaign-related principle. 

13

Case: 08-1977 Document: 73-1 Date Filed: 08/17/2009 Page: 18
ing is sufficient to prove (1) that the FEC could not have met its burden of proving

that these provisions are constitutional as applied to RTAO (2) and that the panel

decision clearly conflicts with Leake.

VSHL & CAN-II. The panel decision also conflicts with VSHL, 263 F.3d 379,

which held that the express-advocacy test allows regulating only “‘spending that is

unambiguously related to the campaign of a particular . . . candidate’ and not regulating ‘issue discussion and advocacy of a political result,’” id. at 383 (quoting

Buckley, 424 U.S. at 79-80). And VSHL expressly recognized that the express-advocacy test, where it applies, requires magic words, and it held 11 C.F.R.

§ 100.22(b) unconstitutional. Id. at 329. Nothing in McConnell affected this holding, and Leake confirmed it. The panel decision also conflicts with CAN-II, which

held that express advocacy requires magic words. 110 F.3d at 1062.

V. This Decision Conflicts With Other Circuits’ Decisions.

As outlined in Part II, the panel decision conflicts with other Circuit decisions

that understand that “express advocacy” requires “magic words” and that the

express-advocacy construction must still be imposed on provisions that are vague

and overbroad for reaching beyond activities that are unambiguously campaign

related). See infra. In addition, 11 C.F.R. § 100.22(b) (“expressly advocating”)

itself is inconsistent with the decision on which it is purportedly based, i.e.,

Furgatch, 807 F.2d 857, as interpreted by this Court. In CAN-II, this Court con14

Case: 08-1977 Document: 73-1 Date Filed: 08/17/2009 Page: 19
strued Furgatch’s alternate “express advocacy” test as requiring “an explicit

directive to voters to take some course of action,” 110 F.3d at 1054, which is 15

absent from the FEC’s express-advocacy definition, dooming § 100.22(b) (and it

also dooms § 114.15 because WRTL-II’s appeal-to-vote test requires an explicit

“appeal” that urges the hearer “to vote,” which is absent from § 114.15).

VI. En Banc Reconsideration Is Required to Repair Created Confusion.

While Leake provided clarity to campaign-finance law, the panel decision saw

the field as “difficult and complicated,” slip. op. at 10, and introduced confusion.

En banc review should be granted because “[p]articipants in the political process

must be able to rely on firmly established legal standards. . . . The very least courts

owe . . . is a clear understanding of the ground rules . . . . [And they] must not create uncertainty.” Miller v. Cunningham, 512 F.3d 98, 99 (4th Cir. 2007)

(Wilkinson, J., dissenting from denial of rehearing en banc).

Michael Boos

LAW OFFICE OF MICHAEL BOOS

4101 Chain Bridge Road, Suite 313

Fairfax, VA 22030

703/691-7717

Respectfully submitted,

/s/ James Bopp, Jr.

James Bopp, Jr.

Richard E. Coleson

BOPP, COLESON & BOSTROM

1 South Sixth Street

Terre Haute, IN 47807-3510

812/232-2434

 The Ninth Circuit now agrees. See California Pro-Life Council v. Getman,

15

328 F.3d 1088, 1098 (9th Cir. 2003) (“we presumed express advocacy must contain some explicit words of advocacy”).

15

Case: 08-1977 Document: 73-1 Date Filed: 08/17/2009 Page: 20
Certificate of Service

I hereby certify that on August 17, 2009, I electronically filed the foregoing

with the Clerk of Court using the CM/ECF System, which will send notice of such

filing to the following registered CM/ECF users:

Eric Fleisig-Greene

John R. Griffiths

U.S. DEPARTMENT OF JUSTICE

Debra Jean Prillaman

OFFICE OF U.S. ATTORNEY

J. Gerald Hebert 

CAMPAIGN LEGAL CENTER

Thomasenia P. Duncan

Audra Anne Hale-Maddox

Adav Noti

David Kolker

Kevin Deeley

Vivien Clair

Seth Nesin

Claire Rajan

FEDERAL ELECTION COMMISSION

I further certify that on August 17, 2009, I served upon the below listed nonCM/ECF participants copies of this document by First-Class Mail postage prepaid

and by email at the listed addresses.

Richard Briffault

Joseph P. Chamberlain Professor 

Columbia University School of Law

435 West 116th Street

New York, NY 10027

Daniel R. Ortiz

John Allan Love Professor of Law

University of Virginia School of Law

580 Massie Road

Charlottesville, VA 22903-1738

Holly Baker, hbaker@fec.gov

FEDERAL ELECTION COMMISSION

999 E Street NW

Washington, DC 20463

Jonathan Lee Riches

#40948-018

F.C.I. Williamsburg

P.O. Box 340

Salters, SC 29590

/s/ James Bopp, Jr 

James Bopp, Jr

Case: 08-1977 Document: 73-1 Date Filed: 08/17/2009 Page: 21
PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

THE REAL TRUTH ABOUT OBAMA, 

INC.,

Plaintiff-Appellant,

v.

FEDERAL ELECTION COMMISSION;

UNITED STATES DEPARTMENT OF  No. 08-1977 JUSTICE,

Defendants-Appellees.

CAMPAIGN LEGAL CENTER;

DEMOCRACY 21,

Amici Supporting Appellees. 

Appeal from the United States District Court

for the Eastern District of Virginia, at Richmond.

James R. Spencer, Chief District Judge.

(3:08-cv-00483-JRS)

Argued: May 13, 2009

Decided: August 5, 2009

Before NIEMEYER, Circuit Judge, C. Arlen BEAM, Senior

Circuit Judge of the United States Court of Appeals for the

Eighth Circuit, sitting by designation, and Joseph F.

ANDERSON, Jr., United States District Judge for the

District of South Carolina, sitting by designation.

Case: 08-1977 Document: 73-2 Date Filed: 08/17/2009 Page: 1 Case: 08-1977 Document: 71 Date Filed: 08/05/2009 Page: 1
Affirmed by published opinion. Judge Niemeyer wrote the

opinion, in which Senior Judge Beam and Judge Anderson

joined.

COUNSEL

ARGUED: James Bopp, Jr., BOPP, COLESON & BOSTROM, Terre Haute, Indiana, for Appellant. Harry Jacobs

Summers, FEDERAL ELECTION COMMISSION, Washington, D.C., for Appellees. ON BRIEF: Michael Boos, LAW

OFFICE OF MICHAEL BOOS, Fairfax, Virginia; Richard E.

Coleson, Clayton J. Callen, BOPP, COLESON & BOSTROM, Terre Haute, Indiana, for Appellant. Thomasenia P.

Duncan, General Counsel, David Kolker, Associate General

Counsel, Adav Noti, FEDERAL ELECTION COMMISSION,

Washington, D.C.; Gregory G. Katsas, Assistant Attorney

General, UNITED STATES DEPARTMENT OF JUSTICE,

Washington, D.C.; Dana J. Boente, Acting United States

Attorney, OFFICE OF THE UNITED STATES ATTORNEY,

Alexandria, Virginia; Michael S. Raab, Eric Fleisig-Greene,

UNITED STATES DEPARTMENT OF JUSTICE, Civil

Division, Washington, D.C., for Appellees. Donald J. Simon,

SONOSKY, CHAMBERS, SACHSE, ENDRESON &

PERRY, LLP, Washington, D.C., Fred Wertheimer,

DEMOCRACY 21, Washington, D.C., for Democracy 21,

Amicus Supporting Appellees; J. Gerald Hebert, Paul S.

Ryan, Tara Malloy, THE CAMPAIGN LEGAL CENTER,

Washington, D.C., for Campaign Legal Center, Amicus Supporting Appellees.

OPINION

NIEMEYER, Circuit Judge:

The Real Truth About Obama, Inc. ("Real Truth") commenced this action against the Federal Election Commission

2 THE REAL TRUTH ABOUT OBAMA v. FEC

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and the Department of Justice, challenging the constitutionality of three Federal Election Commission regulations—11

C.F.R. §§ 100.22(b), 100.57(a), and 114.15—and a Federal

Election Commission enforcement policy under the First and

Fifth Amendments. Real Truth alleged that these regulations

chilled its right to disseminate information about presidential

candidate Senator Obama’s position on abortion. Real Truth

seeks, among other things, a preliminary injunction prohibiting enforcement of these provisions.

The district court denied Real Truth’s motion for a preliminary injunction, finding that (1) Real Truth did not show that

it was likely to succeed on the merits as to any of its challenges; (2) Real Truth would not be irreparably harmed if the

preliminary injunction were not granted; and (3) issuing the

injunction would be against public policy.

On appeal, we apply the Supreme Court’s standard for preliminary injunctions stated in Winter v. Natural Resources

Defense Council, Inc., 129 S. Ct. 365, 374-76 (2008), and

conclude that the district court did not abuse its discretion in

denying the motion for a preliminary injunction. Accordingly,

we affirm.

I

Real Truth, a Virginia nonprofit corporation organized on

July 24, 2008, as an "issue-adversary ‘527’ organization"

under § 527 of the Internal Revenue Code, commenced this

action six days after its incorporation to challenge three Federal Election Commission regulations—11 C.F.R. § 100.22(b)

(defining when a communication expressly advocates the

election or defeat of a clearly identified candidate); 11 C.F.R.

§ 100.57(a) (defining campaign contributions to include funds

"to support or oppose the election of a clearly identified Federal candidate" (emphasis added)); 11 C.F.R. § 114.15 (regulating corporate and labor organization funds expended for

electioneering communications)—and a Federal Election

THE REAL TRUTH ABOUT OBAMA v. FEC 3

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Commission enforcement policy issued for determining Political Action Committee ("PAC") status using "the majorpurpose test." Real Truth alleged that these provisions are

"unconstitutionally overbroad" and "void for vagueness" in

violation of the First and Fifth Amendments.

In its complaint, Real Truth asserted that it intends to publish audio advertisements stating candidate Obama’s position

on abortion and to circulate a fundraising letter to raise money

to publish the "well-documented facts about Obama’s views

on abortion." While Real Truth asserted in its complaint that

it is not a PAC and did not advocate the election or defeat of

Senator Obama, it alleged that it

is chilled from proceeding with these activities

because it reasonably believes that it will be subject

to an FEC and DOJ investigation and possible

enforcement action potentially resulting in civil and

criminal penalties, based on the fact that the FEC has

deemed 527s to be PACs, based on [the challenged

regulations].

Included in the relief that Real Truth seeks is a preliminary

injunction enjoining the enforcement of the challenged provisions against Real Truth’s "intended activities" and against

others similarly situated.

The district court denied Real Truth’s motion for preliminary injunction by order dated September 11, 2008, and Real

Truth filed this interlocutory appeal, contending that the district court abused its discretion in denying its motion for a

preliminary injunction.

II

A preliminary injunction is an extraordinary remedy

afforded prior to trial at the discretion of the district court that

grants relief pendente lite of the type available after the trial.

4 THE REAL TRUTH ABOUT OBAMA v. FEC

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See In re Microsoft Corp. Antitrust Litig., 333 F.3d 517, 524-

26 (4th Cir. 2003); see also De Beers Consol. Mines, Ltd. v.

United States, 325 U.S. 212, 220-21 (1945). Because a preliminary injunction affords, on a temporary basis, the relief

that can be granted permanently after trial, the party seeking

the preliminary injunction must demonstrate by "a clear

showing" that, among other things, it is likely to succeed on

the merits at trial. Winter, 129 S. Ct. at 376; see also Mazurek

v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam). We

review the grant or denial of a preliminary injunction for

abuse of discretion. See Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal, 546 U.S. 418, 428 (2006); In re

Microsoft Litig., 333 F.3d at 524-25.

In its recent opinion in Winter, the Supreme Court articulated clearly what must be shown to obtain a preliminary

injunction, stating that the plaintiff must establish "[1] that he

is likely to succeed on the merits, [2] that he is likely to suffer

irreparable harm in the absence of preliminary relief, [3] that

the balance of equities tips in his favor, and [4] that an injunction is in the public interest." Winter, 129 S. Ct. at 374. And

all four requirements must be satisfied. Id. Indeed, the Court

in Winter rejected a standard that allowed the plaintiff to demonstrate only a "possibility" of irreparable harm because that

standard was "inconsistent with our characterization of

injunctive relief as an extraordinary remedy that may only be

awarded upon a clear showing that the plaintiff is entitled to

such relief." Id. at 375-76.

Before the Supreme Court’s decision in Winter, the standard articulated in Blackwelder Furniture Co. of Statesville v.

Seilig Manufacturing Co., 550 F.2d 189 (4th Cir. 1977), governed the grant or denial of preliminary injunctions in the

Fourth Circuit. See also, e.g., Direx Israel, Ltd. v. Breakthrough Med. Corp., 952 F.2d 802, 811-14 (4th Cir. 1991);

Rum Creek Coal Sales, Inc. v. Caperton, 926 F.2d 353, 359-

60 (4th Cir. 1991). In Blackwelder we adopted "the balanceof-hardship test," which begins with balancing the hardships

THE REAL TRUTH ABOUT OBAMA v. FEC 5

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of the parties. 550 F.2d at 196. We stated, "the first step in a

Rule 65(a) preliminary injunction situation is for the court to

balance the ‘likelihood’ of irreparable harm to the plaintiff

against the ‘likelihood’ of harm to the defendant." Id. at 195.

If that balancing results in an imbalance in the plaintiff’s

favor, we then determine whether the plaintiff "raised questions going to the merits so serious, substantial, difficult and

doubtful, as to make them fair ground for litigation and thus

for more deliberate investigation." Id. In Blackwelder, we specifically held that the district court erred when it demanded

that the plaintiff "first show ‘likelihood of success’ in order

to be entitled to preliminary relief." Id.

Similarly, in Rum Creek Coal, we reiterated that the "hardship balancing test applies to determine the granting or denial

of a preliminary injunction." 926 F.2d at 359. We held that

only after the district court concluded that the balance of the

likelihood of the irreparable harm to the parties tilted in favor

of the plaintiff was it to turn to the merits of the case to determine whether the plaintiff "show[ed] grave or serious questions for litigation." Id. at 363 (internal quotation marks

omitted).

Our Blackwelder standard in several respects now stands in

fatal tension with the Supreme Court’s 2008 decision in Winter.

First, the Supreme Court in Winter, recognizing that a preliminary injunction affords relief before trial, requires that the

plaintiff make a clear showing that it will likely succeed on

the merits at trial. 129 S. Ct. at 374, 376. Yet in Blackwelder,

we instructed that the likelihood-of-success requirement be

considered, if at all, only after a balancing of hardships is

conducted and then only under the relaxed standard of showing that "grave or serious questions are presented" for litigation. 550 F.2d at 195-96 (emphasis added); see also Rum

Creek Coal, 926 F.2d at 363. The Winter requirement that the

plaintiff clearly demonstrate that it will likely succeed on the

6 THE REAL TRUTH ABOUT OBAMA v. FEC

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merits is far stricter than the Blackwelder requirement that the

plaintiff demonstrate only a grave or serious question for litigation.

Second, Winter requires that the plaintiff make a clear

showing that it is likely to be irreparably harmed absent preliminary relief. 129 S. Ct. at 374-76. Blackwelder, on the

other hand, requires that the court balance the irreparable

harm to the respective parties, requiring only that the harm to

the plaintiff outweigh the harm to the defendant. 550 F.2d at

196. Moreover, Blackwelder allows that upon a strong showing on the probability of success, the moving party may demonstrate only a possibility of irreparable injury, id. at 195 –-

a standard explicitly rejected in Winter, 129 S. Ct. at 375-76.

Third, in Winter, the Supreme Court emphasized the public

interest requirement, stating, "In exercising their sound discretion, courts of equity should pay particular regard for the

public consequences in employing the extraordinary remedy

of injunction." 129 S. Ct. at 376-77 (emphasis added) (internal quotations marks and citation omitted). Yet, under the

Blackwelder standard, the public interest requirement "does

not appear always to be considered at length in preliminary

injunction analyses," even though it must always be considered. Rum Creek Coal, 926 F.2d at 366-67; see also Blackwelder, 550 F.2d at 196.

Fourth, while Winter articulates four requirements, each of

which must be satisfied as articulated, Blackwelder allows

requirements to be conditionally redefined as other requirements are more fully satisfied so that "grant[ing] or deny[ing]

a preliminary injunction depends upon a ‘flexible interplay’

among all the factors considered . . . for all four [factors] are

intertwined and each affects in degree all the others." 550

F.2d at 196. Thus, as an example, the court in Blackwelder

observed:

The two more important factors are those of probable irreparable injury to plaintiff without a decree

THE REAL TRUTH ABOUT OBAMA v. FEC 7

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and of likely harm to the defendant with a decree. If

that balance is struck in favor of plaintiff, it is

enough that grave or serious questions are presented;

and plaintiff need not show a likelihood of success.

550 F.2d at 196 (emphasis added).

Because of its differences with the Winter test, the Blackwelder balance-of-hardship test may no longer be applied in

granting or denying preliminary injunctions in the Fourth Circuit, as the standard articulated in Winter governs the issuance

of preliminary injunctions not only in the Fourth Circuit but

in all federal courts.

Thus, we review the district court’s denial of the preliminary injunction under the Winter standard, considering in light

of the stated requirements the district court’s findings and

holdings (1) that Real Truth is not likely to succeed on the

merits; (2) that Real Truth will not be irreparably harmed if

the injunction is denied; and (3) that the injunction requested

would not be in the public interest.

III

In its complaint, Real Truth sought, as part of the relief

requested, a preliminary injunction prohibiting the enforcement of 11 C.F.R. § 100.22(b) (defining the statutory term

"expressly advocating"); 11 C.F.R. § 100.57(a) (regulating

campaign contributions received in response to solicitations);

11 C.F.R. § 114.15 (regulating corporation or labor

organization-funded "electioneering communications"); and

the Federal Election Commission’s policy statement regarding

the analysis of PAC status. To support its position, Real Truth

relied heavily on our recent decision in North Carolina Right

to Life, Inc. v. Leake, 525 F.3d 274 (4th Cir. 2008). In denying Real Truth’s motion for a preliminary injunction, the district court found that Real Truth was unlikely to succeed on

the merits because the statutory provisions that Real Truth

8 THE REAL TRUTH ABOUT OBAMA v. FEC

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challenges are justified by Buckley v. Valeo, 424 U.S. 1

(1976), and its progeny.

The district court concluded (1) that § 100.22(b) "is virtually the same test stated by Chief Justice Roberts in the majority opinion of [FEC v. Wisconsin Right to Life, Inc., 127 S.

Ct. 2652 (2007)]"; (2) that the "support or oppose" language

in § 100.57 is not unconstitutionally vague because "these

words have even been suggested by the Fourth Circuit as a

proper standard to use, see Leake, 525 F.3d at 301"; (3) that

§ 114.15, regulating the permissible use of corporate and

labor organization funds, "simply adopted the test enumerated

in [Wisconsin Right to Life]" and therefore was not unconstitutionally overbroad or vague; and (4) that the "major purpose" test in the Federal Election Commission’s policy

statement draws its essence from court cases that determine

whether an organization can be regulated by the Federal Election Commission as a PAC.

In determining whether the district court erred in concluding that Real Truth did not make a clear showing that it was

likely to succeed, we begin by recognizing that some regulation of speech and political contributions related to campaigns

for election is constitutional. See, e.g., McConnell v. FEC,

540 U.S. 93, 115-21 (2003) (reciting history of campaign

finance regulation and acknowledging that some regulation is

necessary to "protect[ ] the integrity of our system of representative democracy"). Supreme Court precedent allows for

the regulation of contributions to and expenditures by PACs

that are narrowly defined as having "the major purpose" of

expressly advocating "the election or defeat of a clearly identified candidate [for federal office]." Buckley v. Valeo, 424

U.S. 1, 79-80 (1976); cf. Leake, 525 F.3d at 287 (holding that

a state campaign finance statute that defined PACs as those

having "a major purpose," as distinct from "the major purpose," to expressly advocate was unconstitutionally overbroad). These opinions also allow for the regulation of

corporations and labor unions’ communications, prohibiting

THE REAL TRUTH ABOUT OBAMA v. FEC 9

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them from using general funds to "expressly advocate" for or

against the election of a candidate. See, e.g., Buckley, 424

U.S. at 28 n.31; see also FEC v. Mass. Citizens for Life, Inc.,

479 U.S. 238, 253 (1986). Although magic words such as

"vote for, elect, support, cast your ballot for, Smith for Congress, vote against, defeat [and] reject" are sufficient to qualify such communications as express advocacy of a particular

named official, Buckley, 424 U.S. at 44 n.52 (internal quotation marks omitted), a communication without the magic

words may still be sufficient as the functional equivalent of

the magic words and therefore may be regulated, but "only if

the ad is susceptible of no reasonable interpretation other than

as an appeal to vote for or against a specific candidate." Wisconsin Right to Life, 127 S. Ct. at 2667; cf. Leake, 525 F.3d

at 283-84 (holding a North Carolina campaign finance statute

unconstitutional where "[t]he very terms of [the] statute—

including, but not limited to, ‘essential nature,’ ‘the language

of the communication as a whole,’ [and] ‘the timing of the

communication in relation to events of the day’ . . .— are

clearly ‘susceptible’ to multiple interpretations").

Notwithstanding the numerous Supreme Court opinions on

the subject, the regulation of speech related to political campaigns remains a difficult and complicated area of law that is

still developing. And for that reason, as well as the stringent

preliminary injunction standard, Real Truth bears a heavy

burden in showing its likelihood of success. Any relaxation of

its burden, for example to require that Real Truth show only

a possibility that it will eventually prevail, would be inadequate. See Winter, 129 S. Ct. at 375-76.

When we compare the challenged provisions with those

upheld by the Supreme Court, we reach the same conclusion

reached by the district court that Real Truth has not, at this

preliminary stage in the litigation, made a clear showing that

it is likely to succeed on the merits at trial, even though we

do not decide the merits nor intend to foreclose any outcome

on the merits.

10 THE REAL TRUTH ABOUT OBAMA v. FEC

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First, considering the definition of "expressly advocating"

in 11 C.F.R. § 100.22(b), which describes the functional

equivalent of the "magic words" specified in § 100.22(a), we

cannot conclude that it is likely unconstitutional because the

definition is facially consistent with the language in Wisconsin Right to Life. Section 100.22(b) provides:

Expressly advocating means any communication that

—

* * *

(b) When taken as a whole and with limited reference to external events, such as the proximity to the

election, could only be interpreted by a reasonable

person as containing advocacy of the election or

defeat of one or more clearly identified candidate(s)

because —

(1) The electoral portion of the communication is unmistakable, unambiguous, and

suggestive of only one meaning; and

(2) Reasonable minds could not differ as to

whether it encourages actions to elect or

defeat one or more clearly identified candidate(s) or encourages some other kind of

action.

11 C.F.R. § 100.22(b). This language corresponds to the definition of the functional equivalent of express advocacy given

in Wisconsin Right to Life. See 127 S. Ct. at 2667. In Wisconsin Right to Life, the Court stated that where an "ad is susceptible of no reasonable interpretation other than as an appeal to

vote for or against a specific candidate," it can be regulated

in the same manner as express advocacy. 127 S. Ct. at 2267;

cf. Leake, 525 F.3d at 283-84 (holding a North Carolina campaign finance statute unconstitutional where the terms of the

THE REAL TRUTH ABOUT OBAMA v. FEC 11

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statute that defined express advocacy were "clearly susceptible to multiple interpretations" (emphasis added) (internal

quotation marks omitted)). And consistent with Wisconsin

Right to Life and unlike the statute considered in Leake,

§ 100.22(b) cabins the application of the regulation to communications that "could only be interpreted by a reasonable

person as containing advocacy of the election or defeat of one

or more clearly identified candidate(s)" (emphasis added) and

where "[r]easonable minds could not differ as to whether it

encourages actions to elect or defeat one or more clearly identified candidate(s) or encourages some other kind of action."

By limiting its application to communications that yield no

other interpretation but express advocacy as described by Wisconsin Right to Life, § 100.22(b) is likely constitutional.

With respect to 11 C.F.R. § 100.57, Real Truth challenges

as unconstitutionally vague the words "support or oppose the

election of a clearly identified Federal candidate" (emphasis

added) when used to identify regulated campaign funds. Section 100.57 defines as follows those monies that will be

treated as contributions subject to regulations:

(a) Treatment as contributions. A gift, subscription,

loan, advance, or deposit of money or anything of

value made by any person in response to any communication is a contribution to the person making

the communication if the communication indicates

that any portion of the funds received will be used to

support or oppose the election of a clearly identified

Federal candidate.

11 C.F.R. § 100.57(a) (emphasis added). Contrary to Real

Truth’s argument, however, we have expressly sanctioned the

challenged language. In Leake, we noted that North Carolina

"remains free to enforce all campaign finance regulations that

incorporate the phrase ‘to support or oppose the nomination

or election of one or more clearly identified candidates.’" 525

F.3d at 301. Accordingly, we conclude that Real Truth is not

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likely to prevail on its challenge to § 100.57(a), although

again we do not decide the ultimate merits of that issue here.

Real Truth also challenges as unconstitutionally vague 11

C.F.R. § 114.15, regulating corporate and labor organization

funds expended for certain electioneering communications.

That regulation provides:

Corporations and labor organizations may make an

electioneering communication . . . to those outside

the restricted class unless the communication is susceptible of no reasonable interpretation other than as

an appeal to vote for or against a clearly identified

Federal candidate.

11 C.F.R. § 114.15(a). The regulation also provides that "any

doubt [concerning whether a communication is an appeal to

vote for or against a clearly identified Federal candidate] will

be resolved in favor of permitting the communication." 11

C.F.R. § 114.15(c)(3). Again, as with § 100.22(b), § 114.15(a)

mirrors the language of Wisconsin Right to Life by limiting its

application to communications that cannot be interpreted reasonably in any way other than as an appeal to vote for or

against a clearly identified federal candidate. See 127 S. Ct.

at 2667. In view of the fact that § 114.15(a) mirrors the language of Wisconsin Right to Life, we cannot conclude that

Real Truth is likely to succeed on the merits in challenging

this provision as unconstitutional.

Finally, Real Truth challenges the Federal Election Commission’s failure to announce a specific major purpose test in

its policy statements for enforcement contained at 69 Fed.

Reg. 68056 (Nov. 23, 2004) and 72 Fed. Reg. 5595 (Feb. 7,

2007). The major purpose doctrine, as noted by the Federal

Election Commission in its policy statements, "operates to

limit the reach of the [Federal Election] statute in certain circumstances." 72 Fed. Reg. 5595, 5602. Thus, an organization

(corporation or labor union) with activities that center around

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something other than electing or defeating a candidate will

never have the major purpose required by the statute even if

it is one of several of the organization’s major purposes. The

major purpose test is intended to exempt from regulation

organizations that expend or contribute money for express

advocacy but do not have as the major purpose of their existence the election or defeat of a particular candidate. The

Commission explained that "[a]pplying the major purpose

doctrine . . . requires the flexibility of a case-by-case analysis

of an organization’s conduct that is incompatible with a onesize-fits-all rule." Id. at 5601. It is this allowance of a case-bycase analysis that Real Truth challenges as unconstitutionally

overbroad.

The approach taken by the Federal Election Commission in

this regulation, however, appears simply to be adopted from

Supreme Court jurisprudence that takes a fact-intensive

approach to determining the major purpose of a particular

organization’s contributions. For example, in Massachusetts

Citizens for Life, 479 U.S. at 249-51, the Court examined the

entire record to conclude that the plaintiff did not satisfy "the

major purpose" test. See also Akins v. FEC, 101 F.3d 731, 743

(D.C. Cir. 1996) (holding that "it is the purpose of the organization’s disbursements, not of the organization itself, that is

relevant"), vacated on other grounds, FEC v. Akins, 524 U.S.

11 (1998); Shays v. FEC, 511 F. Supp. 2d 19, 26-31 (D.D.C.

2007) (holding that FEC’s choice to regulate § 527 groups by

determining whether they qualified as political action committees on a case-by-case basis was neither arbitrary nor

capricious); cf. Buckley, 424 U.S. at 79-80 (announcing "the

major purpose" test but not defining how to determine the

major purpose of an organization).

In view of the similarity of the approach taken by the Federal Election Commission in its policy statements and the

positions taken by the courts, we cannot conclude that Real

Truth has carried its heavy burden at this stage of the case of

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clearly showing that it is likely to succeed on the merits with

regard to the Commission’s enforcement strategy.

To justify an injunction before trial on the merits, it is

incumbent upon Real Truth to make a clear showing that it is

likely to succeed at trial on the merits. Because of the close

relationship between the text of the provisions challenged and

binding court decisions, we cannot conclude that the district

court erred in finding that Real Truth failed to meet that burden.

IV

In addition to the requirement of making a clear showing

that it will likely succeed on the merits at trial, Real Truth was

also required to make a clear showing that it was likely to suffer irreparable harm in the absence of the preliminary injunction. See Winter, 129 S. Ct. at 374-76.

The district court recognized that chilling speech constitutes irreparable injury. See Elrod v. Burns, 427 U.S. 347, 373

(1976) ("The loss of First Amendment freedoms, for even

minimal periods of time, unquestionably constitutes irreparable injury"). But it also found that Real Truth was free to disseminate its message and make expenditures as it wished, and

its only limitation was on "contributions based on constitutionally permitted restrictions," which the district court determined "[did] not amount to enough harm to constitute

irreparable harm."

While the district court’s ruling regarding harm was, in

effect, an extension of its conclusion that the restrictions were

likely constitutional, the district court recognized also that

Real Truth had not made a showing that its proposed communications would violate the regulations as written.

Regardless of whether the district court was correct in this

regard, we conclude that it acted within its discretion in deterTHE REAL TRUTH ABOUT OBAMA v. FEC 15

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mining that any harm created by Real Truth’s doubt about the

legality of its intended fundraising and advertising was outweighed by the public interest identified by the Supreme

Court in the enforcement of narrow restrictions on contributions to political candidates. See McConnell, 540 U.S. at 115-

23 (noting the importance of the public interest in "combating

the appearance or perception of corruption engendered by

large [unregulated] campaign contributions"); Mass. Citizens

for Life, 479 U.S. at 264 (noting that the regulations prevent

"corporations from serving as conduits for the type of direct

spending that creates a threat to the political marketplace");

Buckley, 424 U.S. at 29 ("[T]he weighty interests served by

restricting the size of financial contributions to political candidates are sufficient to justify the limited effect upon First

Amendment freedoms caused by the $1,000 contribution ceiling"); Leake, 525 F.3d at 284 (noting that underpinning

Supreme Court campaign finance jurisprudence is a desire to

strike "a balance between the legislature’s authority to regulate elections and the public’s fundamental First Amendment

right to engage in political speech"). The district court also

recognized that overruling, on a preliminary basis, regulations

that apparently serve these objectives would not be "in the

public interest," as required by Winter, 129 S. Ct. at 374, and

would create a "wild west" of electioneering fundraising and

communications. We cannot conclude that it abused its discretion in this regard.

Accordingly, we affirm the district court’s order denying a

preliminary injunction.

AFFIRMED

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