ANTHONY HERMAN 

General Counsel 

DAVID KOLKER 

Associate General Counsel 

LISA J. STEVENSON 

Special Counsel to the General Counsel 

ADAV NOTI 

Acting Assistant General Counsel 

ERIN CHLOPAK 

Attorney 

Federal Election Commission 

999 E Street, NW 

Washington, DC 20463 

Telephone: (202) 694-1650 

Facsimile: (202) 219-0260 

CHRISTOPHER A. CROFTS 

United States Attorney 

NICHOLAS VASSALLO 

Assistant United States Attorney 

Post Office Box 668 

Cheyenne, WY 82002-0668 

Telephone: (307) 772-2124 

Facsimile: (307) 772-2123 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF WYOMING 

FREE SPEECH, ) 

 ) 

 Plaintiff, ) 

 ) 

 v. ) Civ. No. 2:12-00127-SWS 

 ) 

FEDERAL ELECTION COMMISSION, ) 

 ) OPPOSITION 

 Defendant. ) 

 ) 

DEFENDANT FEDERAL ELECTION COMMISSION’S OPPOSITION TO 

PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION

Case 2:12-cv-00127-SWS Document 26 Filed 08/10/12 Page 1 of 58
TABLE OF CONTENTS 

Page 

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

BACKGROUND .......................................................................................................................2 

I. THE FEDERAL ELECTION COMMISSION ..............................................................2 

II. STATUTORY AND REGULATORY BACKGROUND .............................................2 

 

A. Express Advocacy and Electioneering Communications ..................................2 

B. Political Committee Status .................................................................................5 

1. Organizational and Reporting Requirements; Contribution Limits .......5 

2. Major Purpose Test ................................................................................7 

C. Solicitation of Contributions ..............................................................................8 

III. PLAINTIFF’S ADVISORY OPINION REQUEST ......................................................9 

ARGUMENT ..........................................................................................................................13 

I. A PRELIMINARY INJUNCTION IS AN EXTRAORDINARY REMEDY 

THAT REQUIRES PLAINTIFF TO MEET A HEAVY BURDEN ...........................13 

II. PLAINTIFF FAILS TO MAKE THE REQUIRED SHOWING THAT IT IS 

LIKELY TO PREVAIL ON THE MERITS ................................................................14 

A. Applicable Legal Standards for Plaintiff’s Constitutional Claims ..................14 

1. Intermediate Scrutiny Applies Here .....................................................14 

2. Plaintiff’s Burden for Its Facial Challenges .........................................16 

B. Section 100.22(b) Is Constitutional .................................................................17 

1. Section 100.22(b) Is Not Unconstitutionally Vague ............................18 

 

Case 2:12-cv-00127-SWS Document 26 Filed 08/10/12 Page 2 of 58
ii 

a. The regulation is consistent with WRTL’s definition of the 

functional equivalent of express advocacy ..............................18 

b. Disagreements in the application of section 100.22(b) do not 

demonstrate that the regulation is unconstitutionally vague ....22 

2. Section 100.22(b) Is Not Overbroad ....................................................24 

3. Plaintiff’s Remaining Objections to Section 100.22(b) Lack Merit ....27 

a. The lower court decisions upon which plaintiff relies have 

been rendered inapposite in the wake of more recent 

Supreme Court decisions ........................................................27 

b. Plaintiff misunderstands the Commission’s enforcement 

process......................................................................................29 

c. There is no “sordid” history of enforcement of 

section 100.22(b) ......................................................................30 

C. The Commission’s Method of Determining Political Committee Status and 

the Registration and Disclosure Requirements for PACs Are Constitutional .32 

1. The Commission’s Method for Determining a Group’s Major 

Purpose is Constitutional .....................................................................33 

2. The Consequences of Political Committee Status Are 

Constitutional Organizational and Disclosure Obligations ..................36 

D. The Commission’s Solicitation Standard Is Constitutional .............................38 

E. Plaintiff Fails To Identify Any “Prior Restraint” On Speech ..........................41 

III. PLAINTIFF FAILS TO DEMONSTRATE IRREPARABLE HARM .......................41 

IV. THE BALANCE OF HARMS FAVORS THE COMMISSION AND AN 

INJUNCTION WOULD BE ADVERSE TO THE PUBLIC INTEREST ..................42 

V. A NATIONWIDE INJUNCTION WOULD BE ESPECIALLY IMPROPER 

HERE ..........................................................................................................................44 

CONCLUSION ........................................................................................................................47

Case 2:12-cv-00127-SWS Document 26 Filed 08/10/12 Page 3 of 58
iii 

TABLE OF AUTHORITIES 

Page 

Cases 

Ad Hoc Metals Coalition v. Whitman, 227 F. Supp. 2d 134 (D.D.C. 2002) ...........................31 

Awad v. Ziriax, 670 F.3d 1111 (10th Cir. 2012) .......................................................... 13-14, 43 

Beltronics USA, Inc. v. Midwest Inventory Distrib., LLC, 562 F.3d 1067 (10th Cir. 2009) ...13 

Buckley v. Valeo, 424 U.S. 1 (1976) ..............................................................2, 5, 14, 32, 36, 42 

Califano v. Yamasaki, 442 U.S. 682 (1979) ............................................................................44 

Ctr. for Individ. Freedom v. Madigan, 735 F. Supp. 2d 994 (N.D. Ill. 2010) ..................27, 38 

Citizens United v. FEC, 130 S. Ct. 876 (2010) ............................................................... passim 

Colo. Right to Life Comm., Inc. v. Coffman, 498 F.3d 1137 (10th Cir. 2007) ............16, 20, 35 

Davis v. Mineta, 302 F.3d 1104 (10th Cir. 2002) ............................................................. 13-14 

Doe v. Reed, 130 S. Ct. 2811 (2010) ............................................................................ 1, 26-27 

Deukmejian v. Nuclear Regulatory Comm’n, 751 F.2d 1287 (D.C. Cir. 1984), aff’d in 

relevant part sub. nom., San Luis Obispo Mothers for Peace v. U.S. Nuclear 

Regulatory Comm’n, 789 F.2d 26 (D.C Cir. 1986) (en banc) ...........................................31 

Elrod v. Burns, 427 U.S. 347 (1976) ......................................................................................41 

EMILY’s List v. FEC, 581 F.3d 1 (D.C. Cir. 2009) .................................................................40 

FCC v. Fox Television Stations, Inc., 132 S. Ct. 2307 (2012) ................................................18 

FEC v. Democratic Senatorial Campaign Comm., 454 U.S. 27 (1981) (“DSCC”) ......... 29-30 

FEC v. Furgatch, 807 F.2d 857 (9th Cir. 1987) .....................................................................27 

FEC v. GOPAC, Inc., 917 F. Supp. 851 (D.D.C. 1996) ..........................................................35 

FEC v. Malenick, 310 F. Supp. 2d 230 (D.D.C. 2004) ............................................................35 

Case 2:12-cv-00127-SWS Document 26 Filed 08/10/12 Page 4 of 58
iv 

FEC v. Mass. Citizens for Life, Inc., 479 U.S. 238 (1986) (“MCFL”) ....................................37 

FEC v. Survival Educ. Fund, Inc., 65 F.3d 285 (2d Cir. 1995) (“SEF”) ................... 8-9, 38, 40 

FEC v. Wis. Right to Life, Inc., 551 U.S. 449 (2007) (“WRTL”) ..................................... passim 

First Nat’l Bank of Bos. v. Bellotti, 436 U.S. 765 (1978) .......................................................26 

Florida v. Jimeno, 500 U.S. 248 (1991) .................................................................................18 

Grayned v. City of Rockford, 408 U.S. 104 (1972) .................................................................17 

Hedges v. Obama, No. 12 Civ. 331, 2012 WL 2044565 (S.D.N.Y. June 6, 2012) .................46 

Human Life of Wash. Inc. v. Brumsickle, 624 F.3d 990 (9th Cir. 2010), 

cert. denied, 131 S. Ct. 1477 (2011) .................................................... 15-16, 26, 32, 38, 43 

Hyatt v. Heckler, 807 F.2d 376 (4th Cir. 1986) .......................................................................45 

Iowa Right to Life Comm., Inc. v. Smithson, 750 F. Supp. 2d 1020 

(S.D. Iowa 2010) ......................................................................................................7, 16, 43 

Iowa Right to Life Comm., Inc. v. Tooker, 795 F. Supp. 2d 852 (S.D. Iowa 2011) ....16, 36, 37 

Jordan v. Sosa, 654 F.3d 1012 (10th Cir. 2011) ......................................................................45 

Koerber v. FEC, 583 F. Supp. 2d 740 (E.D.N.C. 2008) ..........................................................34 

Maine Right to Life Comm. v. FEC, 98 F.3d 1 (1st Cir. 1996) (“MRLC”) .............................28 

Maine Right to Life Comm. v. FEC, 914 F. Sup. 8 (D. Me. 1996) .................................... 28-29 

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

NAACP v. Alabama, 357 U.S. 449 (1958) .........................................................................36, 37 

Nat’l Ass’n of Mfrs. v. Taylor, 549 F. Supp. 2d 68 (D.D.C. 2008) .........................................42

Nat’l Mining Ass’n v. U.S. Army Corps of Eng’rs, 145 F.3d 1309 (D.C. Cir. 1998) ..............46 

Nat’l Org. for Marriage v. McKee, 649 F.3d 34 (1st Cir. 2011), 

cert. denied, 132 S. Ct. 1635 (2012) ..................................................... 15-16, 26, 28-29, 38 

New Mexico Youth Organized v. Herrera, 611 F.3d 669 (10th Cir. 2010) ..... 15, 20, 35, 37-38 

Case 2:12-cv-00127-SWS Document 26 Filed 08/10/12 Page 5 of 58
v 

New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 434 U.S. 1345 (1977) .........................42 

New York v. Ferber, 458 U.S. 747 (1982) ...............................................................................16 

Orloski v. FEC, 795 F.2d 156 (D.C. Cir. 1986) .......................................................................29 

Purcell v. Gonzalez, 549 U.S. 1 (2006) .............................................................................13, 43 

Real Truth About Abortion, Inc. f/k/a Real Truth About Obama, Inc. v. FEC, 

681 F.3d 544 (4th Cir. 2012) (“RTAA”) ..................................................................... passim 

Real Truth About Obama, Inc. v. FEC, 575 F.3d 342 (4th Cir. 2009) ....................................14 

Real Truth About Obama, Inc. v. FEC, 796 F. Supp. 2d 736, 749-50 (E.D.Va. 2011) 

(“RTAO”), aff’d, Real Truth About Abortion, Inc., 681 F.3d 544 (4th Cir. 2012) ....... 23-24 

Real Truth About Obama v. FEC, No. 3:08-CV-483, 2008 WL 4416282 

(E.D. Va. Sept. 24, 2008), aff’d, 575 F.3d 342 (4th Cir. 2009) ........................................43 

Reno v. ACLU, 521 U.S. 844 (1997) ........................................................................................46 

Republican Nat’l Comm. v. FEC, 698 F. Supp. 2d 150 (D.D.C. 2010), aff’d mem., 

130 S. Ct. 3544 (2010) .......................................................................................................15 

Right to Life of Dutchess Co. Inc. v. FEC, 6 F. Supp. 2d 248 (S.D.N.Y. 1998) (“RLDC”) ...29 

Sampson v. Murray, 415 U.S. 61 (1974) .................................................................................42 

Serono Laboratories, Inc. v. Shalala, 158 F.3d 1313 (D.C. Cir. 1998) ...................................31 

Shays v. FEC, 511 F. Supp. 2d 19 (D.D.C. 2007) ......................................................... 8, 33-34 

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

cert. denied, 131 S. Ct. 553 (2010) .............................................................. 6, 15-16, 32, 36 

Turner Broad. Sys., Inc. v. FCC, 507 U.S. 1301 (1993) ..........................................................13 

United States v. AMC Entm’t, Inc., 549 F.3d 760 (9th Cir. 2008) ...........................................45 

United States v. Glaser, 14 F.3d 1213 (7th Cir. 1994) ............................................................45 

United States v. Harriss, 347 U.S. 612 (1954) ........................................................................26 

United States v. Mendoza, 464 U.S. 154 (1984) ......................................................................45 

Case 2:12-cv-00127-SWS Document 26 Filed 08/10/12 Page 6 of 58
vi 

United States v. Salerno, 481 U.S. 739 (1987) ........................................................................16 

United States v. Williams, 553 U.S. 285 (2008) ......................................................................22 

United States v. Wurzbach, 280 U.S. 396 (1930) ....................................................................22 

Univ. of Tex. v. Camenisch, 451 U.S. 390 (1981) ....................................................................13 

Utah Licensed Beverage Ass’n v. Leavitt, 256 F.3d 1061 (10th Cir. 2001) ............................41

Vt. Right to Life Comm., Inc. v. Sorrell, --- F. Supp. 2d ---, 2012 WL 2370445 

(D. Vt. June 21, 2012), appeal docketed, No. 12-2904 

 (2d Cir. July 23, 2012) (“VRLC”) ........................................................................ 6-7, 16, 26 

Va. Soc’y for Human Life, Inc. v. FEC, 263 F.3d 379 (4th Cir. 2001) (“VSHL”), 

overruled, Real Truth About Abortion, Inc., 681 F.3d 544 (4th Cir. 2012) .... 28, 44, 45, 46 

Walters v. Nat’l Ass’n of Radiation Survivors, 468 U.S. 1323, 1324 (1984) ..........................42 

Winter v. Natural Res. Def. Council, Inc., 129 S. Ct. 365 (2008) ..................................... 13-14 

Wyatt v. Cole, 504 U.S. 158 (1992) .........................................................................................18 

Yamada v. Weaver, No. 10-00497 JMS-RLP, 2012 WL 983559 

(D. Haw. Mar. 21, 2012) ............................................................................................ 27, 37 

Statutes and Regulations 

Administrative Procedure Act, 5 U.S.C. §§ 701-06 ..................................................................8 

Bipartisan Campaign Reform Act, Pub. L. No. 107-155, § 212(a), 116 Stat. 81 (2002) ..........3 

Federal Election Campaign Act of 1971, 2 U.S.C. §§ 431-57 (“FECA”) ................................2 

FECA Amendments of 1976, Pub. L. No. 94-283, § 102(g)(3), 90 Stat. 475, 479 (1976) ........2 

FECA Amendments of 1979, Pub. L. No. 96-187, § 111, 93 Stat. 1339 (1980) ......................8 

2 U.S.C. § 431(4)(A) .....................................................................................................5, 15, 33 

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

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

Case 2:12-cv-00127-SWS Document 26 Filed 08/10/12 Page 7 of 58
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2 U.S.C. § 431(17)(A)..............................................................................................................15 

2 U.S.C. § 432(a)-(d) .................................................................................................................6 

2 U.S.C. § 432(h) ......................................................................................................................6 

2 U.S.C. § 433 ...........................................................................................................................6 

2 U.S.C. § 434 ...........................................................................................................................6 

2 U.S.C. § 434(b)(4)(H)(iii) .......................................................................................................6 

2 U.S.C. § 434(b)(6)(B)(iii) .......................................................................................................6 

2 U.S.C. § 434(c) ......................................................................................................................3 

2 U.S.C. § 434(f)(1)-(2) .............................................................................................................4 

2 U.S.C. § 434(f)(3)(A)(i) .........................................................................................................4 

2 U.S.C. § 434(f)(3)(A)(i)(III) ...................................................................................................4 

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

2 U.S.C. § 437c(c)....................................................................................................................12 

2 U.S.C. § 437d(a)(7) ...........................................................................................................2, 12 

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

2 U.S.C. § 437d(e) .................................................................................................................. 29 

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

2 U.S.C. § 437f(a)(1) ......................................................................................................... 11-12 

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

2 U.S.C. § 437g(a)(1) ...............................................................................................................29 

2 U.S.C. § 437g(a)(2) .........................................................................................................29, 30 

2 U.S.C. § 437g(a)(8) ...............................................................................................................29 

Case 2:12-cv-00127-SWS Document 26 Filed 08/10/12 Page 8 of 58
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2 U.S.C. § 437g(a)(8)(C) .........................................................................................................30 

2 U.S.C. §§ 441a(a)(1)(C) .........................................................................................................6 

2 U.S.C. § 441b ....................................................................................................................5, 17 

2 U.S.C. § 441b(a) ................................................................................................................2, 6 

2 U.S.C. § 441b(b)(2) ...............................................................................................................4 

2 U.S.C. § 441d(a) ................................................................................................................. 8-9 

2 U.S.C. § 441d(a)(3) .................................................................................................................9 

26 U.S.C. § 527 ....................................................................................................................... 33 

11 C.F.R. § 109.10(e) ................................................................................................................3 

11 C.F.R. § 100.22 ................................................................................................................2, 5 

11 C.F.R. § 100.22(a) ..........................................................................................................3, 12 

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

11 C.F.R. § 100.52(a) ................................................................................................................8 

11 C.F.R. § 100.57 ...................................................................................................................40 

11 C.F.R. § 110.11(a)(1) ...........................................................................................................6 

11 C.F.R. § 110.11(a)(3) ............................................................................................................9 

11 C.F.R. § 114.15 ..............................................................................................................4, 21 

Miscellaneous 

Express Advocacy; Independent Expenditures; Corporate and Labor Organization 

Expenditures, 60 Fed. Reg. 35,292 (July 6, 1995) .......................................................18, 27 

FEC Advisory Op. 2011-11 (Colbert), 2011 WL 2662412 (June 30, 2011) ......................... 6-7 

FEC Advisory Op. 2010-11 (Commonsense Ten), 2010 WL 3184269 (July 22, 2010) ....... 6-7 

FEC Advisory Op. 2010-09 (Club for Growth), 2010 WL 3184267 (July 22, 2010) ........... 6-7 

Case 2:12-cv-00127-SWS Document 26 Filed 08/10/12 Page 9 of 58
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Government Litigation Savings Act, H.R. 1996, 112th Cong. (2011) ....................................23 

In the Matter of Economic Freedom Fund, et al., MUR 5842, Certification 

(Apr. 16, 2009), available at http://eqs.nictusa.com/eqsdocsMUR/29044240853.pdf ....30 

In the Matter of Patriot Majority, et al., MUR 6073, Certification (Apr. 3, 2009), 

available at http://eqs.nictusa.com/eqsdocs MUR/29044234187.pdf ...............................30 

In the Matter of American Future Fund, MUR 5988, Amended Certification 

(Mar. 17, 2009), available at 

http://eqs.nictusa.com/eqsdocsMUR/29044232280.pdf ........................................ 30-31, 34

In the Matter of Americans for Job Security, Inc., et al., MURs 5694 & 5910, 

Certification (Feb. 27, 2009), available at 

http://eqs.nictusa.com/eqsdocsMUR/29044232232.pdf ..............................................31, 34 

In the Matter of Gun Owners of Amer., Inc., et al., MURs 5874 & 5875, Certification 

(Oct. 10, 2007), available at http://eqs.nictusa.com/eqsdocsMUR/000067A7.pdf ..........31 

In the Matter of Council for Responsible Gov’t, et al., MUR 5024R, Conciliation 

Agreement (Nov. 17, 2005), available at 

http://eqs.nictusa.com/eqsdocsMUR/00004C5F.pdf ........................................................31 

In the Matter of Sierra Club, Inc., MUR 5634, Conciliation Agreement (Nov. 15, 2006), 

available at http://eqs.nictusa.com/eqsdocsMUR/00005815.pdf ......................................31 

Notice of New Advisory Opinion Procedures and Explanation of Existing Procedures, 

74 Fed. Reg. 32,160 (July 7, 2009) ...................................................................................11 

Press Release, FEC Statement on the D.C. Circuit Court of Appeals Decision in 

EMILY’s List v. FEC, http://www.fec.gov/press/press2010/20100112EmilyList.shtml 

(Jan. 12, 2010) ...................................................................................................................40 

Press Release, FEC Statement on the Supreme Court’s Decision in Citizens United v. FEC, 

http://www.fec.gov/press/press2010/20100205CitizensUnited.shtml (Feb. 5, 2010) ........4 

Political Committee Status, 69 Fed. Reg. 11,736 (proposed Mar. 11, 2004) ...........................7 

Supplemental Explanation and Justification for the Regulations on Political 

Committee Status, 72 Fed. Reg. 5,595 (Feb. 7, 2007) ......................................... 7-8, 33-34, 40 

Case 2:12-cv-00127-SWS Document 26 Filed 08/10/12 Page 10 of 58
INTRODUCTION 

The challenged regulation and policies trigger public disclosure that prevents corruption 

and informs the electorate about the source of funds used to influence federal elections. They do 

not ban or suppress speech. See Real Truth About Abortion, Inc. f/k/a Real Truth About Obama, 

Inc. v. FEC, 681 F.3d 544 (4th Cir. 2012) (“RTAA”) (rejecting constitutional attack on 11 C.F.R. 

§ 100.22(b) and approach used by FEC to determine political committee status). 

The Fourth Circuit’s decision relies heavily on the Supreme Court’s decision in Citizens 

United v. FEC, 130 S. Ct. 876 (2010). In that case, the Court struck down a ban on corporate 

spending for independent campaign speech. But it reaffirmed the constitutionality of the 

disclosure requirements implicated by the regulation and policies at issue here. Such laws 

“‘provid[e] the electorate with information’ and ‘insure that the voters are fully informed’ about 

the person or group who is speaking” about a candidate, but they “‘impose no ceiling on 

campaign-related activities’ and ‘do not prevent anyone from speaking.’” Id. at 914-15 (quoting 

Buckley v. Valeo, 424 U.S. 1, 64 (1976); McConnell v. FEC, 540 U.S. 93, 201 (2003)); see Doe 

v. Reed, 130 S. Ct. 2811, 2820 (2010) (“Public disclosure also promotes transparency and 

accountability in the electoral process to an extent other measures cannot.”). 

 Just as the election season is approaching its peak, plaintiff asks this Court to alter the 

status quo by imposing a nationwide injunction and halting enforcement of a regulation and 

policies that facilitate the campaign-related disclosures embraced by eight Justices in Citizens 

United. Free Speech satisfies none of the requirements for a preliminary injunction. It has 

utterly failed to make the requisite “strong showing” that it will likely succeed on the merits and 

that the balance of harms tips in its favor. While the public has an important informational 

interest in knowing the identity of those who advocate for or against federal candidates, Free 

Speech seeks merely to avoid the cost and inconvenience of disclosing that information, burdens 

that do not amount to irreparable harm. Free Speech is free to finance and air each of its 

proposed advertisements, and to solicit and accept unlimited contributions to pay for them. But 

the settled case law is clear: it has no constitutional right to avoid the disclosure requirements of 

Case 2:12-cv-00127-SWS Document 26 Filed 08/10/12 Page 11 of 58
2 

the Federal Election Campaign Act when engaging in campaign activity. Plaintiff’s request for a 

preliminary injunction should be denied.

BACKGROUND 

I. THE FEDERAL ELECTION COMMISSION 

The Federal Election Commission (“Commission” or “FEC”) is the independent agency 

of the United States government with exclusive jurisdiction to administer, interpret, and civilly 

enforce the Federal Election Campaign Act of 1971, 2 U.S.C. §§ 431-57 (“FECA” or “Act”). 

Congress empowered the Commission to “formulate policy” with respect to the Act, 2 U.S.C. 

§ 437c(b)(1); “to make, amend, and repeal such rules . . . as are necessary to carry out the 

provisions of [the] Act,” 2 U.S.C. § 437d(a)(8); to issue advisory opinions construing the Act, 2 

U.S.C. §§ 437d(a)(7), 437f; and to civilly enforce against violations of the Act. 2 U.S.C. § 437g. 

II. STATUTORY AND REGULATORY BACKGROUND 

A. Express Advocacy and Electioneering Communications 

Before Citizens United, the Act prohibited corporations and labor unions from making 

“expenditures.” 2 U.S.C. §§ 431(9)(A)(i), 441b(a). To preserve the original statutory definition 

of an independent “expenditure” from “invalidation on vagueness grounds,” the Supreme Court 

in Buckley construed the term “to apply only to expenditures for communications that in express 

terms advocate the election or defeat of a clearly identified candidate for federal office.” 424 

U.S. at 44. In response, Congress amended FECA to incorporate the Court’s construction by 

defining an “independent expenditure” as a communication “expressly advocating the election or 

defeat of a clearly identified candidate” and not made by or in coordination with a candidate or 

political party. See FECA Amendments of 1976, Pub. L. No. 94-283, § 102(g)(3), 90 Stat. 475, 

479 (1976) (codified at 2 U.S.C. § 431(17)). 

Exercising the authority to “to make . . . such rules . . . as are necessary to carry out the 

provisions of [the] Act,” 2 U.S.C. § 437d(a)(8), in 1995 the Commission promulgated a 

regulation defining the statutory term “expressly advocating,” 11 C.F.R. § 100.22. The 

regulation established a two-part definition. Part (a) of the regulation includes communications 

that use phrases — such as “vote for” or “reject” — “which in context can have no other 

Case 2:12-cv-00127-SWS Document 26 Filed 08/10/12 Page 12 of 58
3 

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

This is sometimes referred to as “magic words” express advocacy. See McConnell, 540 U.S. at 

126 (citing Buckley, 424 U.S. at 44 n.52). Part (b) defines express advocacy as a communication 

that has an unambiguous “electoral portion” as to which “[r]easonable minds could not differ 

[that] it encourages actions to elect or defeat one or more clearly identified candidate(s).” 11 

C.F.R. § 100.22(b).1

 A person or entity — other than a political committee — that finances 

independent expenditures aggregating more than $250 must file with the Commission a 

disclosure report that identifies, inter alia, the date and amount of each expenditure and anyone 

who contributed over $200 to further it. See 2 U.S.C. § 434(c); 11 C.F.R. § 109.10(e). 

In 2002, Congress passed the Bipartisan Campaign Reform Act (“BCRA”), which 

introduced new financing and disclosure requirements for “electioneering communications.” 

Pub. L. No. 107-155, § 212(a), 116 Stat. 81 (2002). The statute prohibited corporations and 

unions from making any “direct or indirect payment . . . for any applicable electioneering 

communication,” which is defined in the context of a presidential election as a “broadcast, cable, 

or satellite communication” that (a) refers to a clearly identified presidential candidate, and (b) is 

                                                           

1

 The full regulatory definition in 11 C.F.R. § 100.22(b) identifies as express advocacy a 

communication that: 

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 candidiate(s) or 

encourages some other kind of action.

Case 2:12-cv-00127-SWS Document 26 Filed 08/10/12 Page 13 of 58
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made within 60 days before the general election or 30 days before a primary election or 

convention. 2 U.S.C. §§ 441b(b)(2), 434(f)(3)(A)(i).2

 BCRA also mandated disclosure for 

electioneering communications, including a requirement that every person who makes 

electioneering communications aggregating in excess of $10,000 during a calendar 

year must file within 24 hours a statement that identifies the maker, amount, and recipient of 

each disbursement over $200, as well as information about donors who contributed to the person 

making the disbursement. 2 U.S.C. § 434(f)(1)-(2). 

The Supreme Court upheld the constitutionality of the financing restriction for 

electioneering communications “to the extent that the issue ads . . . are the functional equivalent 

of express advocacy.” McConnell, 540 U.S. at 189-94, 203-08 (quotation at 206). Later, in FEC 

v. Wisconsin Right to Life, Inc. (“WRTL”), the Chief Justice’s controlling opinion defined “the 

functional equivalent of express advocacy” as a communication that is “susceptible of no 

reasonable interpretation other than as an appeal to vote for or against a specific candidate.” 

551 U.S. 449, 469-70 (2007). In 2007, the Commission codified this standard in a regulation. 

11 C.F.R. § 114.15. In Citizens United, the Court held unconstitutional FECA’s ban on 

corporate financing of independent expenditures, as well as BCRA’s restriction on electioneering 

communication financing by corporations. 130 S. Ct. at 913.3

 But eight Justices upheld BCRA’s 

disclosure requirements for electioneering communications, even for communications that are 

not the functional equivalent of express advocacy. 130 S. Ct. at 914-15. The Court recognized 

that “[d]isclaimer and disclosure requirements may burden the ability to speak, but they ‘impose 

no ceiling on campaign-related activities.’” Id. at 914 (quoting Buckley, 424 U.S. at 64). 

 The Court thus declined to review such disclosure requirements through the lens of strict 

scrutiny and instead “subjected these requirements to ‘exacting scrutiny,’ which requires ‘a 

                                                           

2

 In the context of campaigns for the United States Senate and House of Representatives, 

the communication must also be broadcast within the geographic area of the given campaign to 

constitute an electioneering communication. See 2 U.S.C. § 434(f)(3)(A)(i)(III). 

3

 The Commission has thus announced that it will no longer enforce these restrictions. 

Press Release, FEC Statement on the Supreme Court’s Decision in Citizens United v. FEC, 

http://www.fec.gov/press/press2010/20100205CitizensUnited.shtml (Feb. 5, 2010). 

Case 2:12-cv-00127-SWS Document 26 Filed 08/10/12 Page 14 of 58
5 

substantial relation’ between the disclosure requirement and a ‘sufficiently important’ 

governmental interest.” Id. (quoting Buckley, 424 U.S. at 64, 66). The Court also explained that 

disclosure is “less restrictive” than a limit on spending, and that the public has an interest in 

knowing who is responsible for pre-election communications that speak about candidates, 

“[e]ven if the ads only pertain to a commercial transaction.” Id. at 915-16. 

Because Citizens United struck down the ban on corporate independent expenditures in 

2 U.S.C. § 441b as unconstitutional, the Commission’s regulatory definition of express advocacy 

in 11 C.F.R. § 100.22, which had helped to implement that ban, no longer operates to restrict 

such corporate (or labor union) speech. See infra pp. 27-29. But, consistent with the Court’s 

decision, the Commission’s regulation continues to trigger disclosure obligations in connection 

with such speech. 

B. Political Committee Status 

The statutory definition of “political committee” — commonly known as a “PAC” — 

includes “any committee, club, association, or other group of persons which receives 

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

expenditures aggregating in excess of $1,000 during a calendar year.” 2 U.S.C. § 431(4)(A). In 

Buckley, however, the Supreme Court narrowed the statutory definition, because defining PAC 

status “only in terms of amount of annual ‘contributions’ and ‘expenditures’” might result in 

overbroad application by reaching “groups engaged purely in issue discussion.” 424 U.S. at 79. 

The Court therefore concluded that the definition “need only encompass organizations that are 

under the control of a candidate or the major purpose of which is the nomination or election of a 

candidate.” Id. (emphasis added). Under the statute as thus construed, an organization that is 

not controlled by a candidate must register as a PAC only if (1) the entity crosses the $1,000 

threshold of contributions or expenditures and (2) its “major purpose” is the nomination or 

election of federal candidates. 

1. Organizational and Reporting Requirements; Contribution Limits 

Political committees must comply with certain organizational and reporting requirements. 

They must register with the Commission and file periodic reports for disclosure to the public of 

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6 

their total operating expenses and cash on hand, as well as their receipts and disbursements, with 

limited exceptions for most transactions below a $200 threshold. See 2 U.S.C. §§ 433, 434. 

Each PAC must have a treasurer who maintains its records and a separately designated bank 

account. 2 U.S.C. § 432(a)-(d), (h). Political committees also must disclose in their regularly 

scheduled reports additional information about their independent expenditures, including the 

date, amount, and candidates supported or opposed for each independent expenditure over $200. 

2 U.S.C. § 434(b)(4)(H)(iii), (6)(B)(iii). In addition, PACs must identify themselves through 

“disclaimers” on all of their public political advertising, on their websites, and in mass emails. 

11 C.F.R. § 110.11(a)(1). 

As enacted, FECA permitted PACs to accept contributions only up to $5,000 from 

individuals. See 2 U.S.C. §§ 441a(a)(1)(C), 441b(a). In SpeechNow.org v. FEC, however, the 

D.C. Circuit invalidated the $5,000 limit on individual contributions to political committees that 

receive contributions only from individuals and whose campaign-related activity consists only of 

independent expenditures — so-called “super PACs” or “independent-expenditure-only political 

committees.” 599 F.3d 686, 692-97 (D.C. Cir.) (en banc), cert. denied, 131 S. Ct. 553 (2010). 

SpeechNow, however, expressly upheld the Act’s reporting and organizational requirements for 

political committees — including as applied to super PACs. Id. at 696-98. 

In so holding, the court observed that the reporting required of political committees does 

not “impose much of an additional burden” compared with the reporting requirements for 

persons making independent expenditures. Id. at 697. It further reasoned that “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.”4

 Id. at 698; see also, e.g., Vt. Right to Life Comm. Inc. v. Sorrell, --- F. Supp. 2d -

                                                           

4

 The Commission has since concluded, in several recent advisory opinions, that 

independent-expenditure only political committees may solicit and accept unlimited 

contributions from individuals, corporations, labor organizations, and other political committees. 

See, e.g., FEC Advisory Op. 2011-11 (Colbert), 2011 WL 2662412, at *3-*4 (June 30, 2011) 

(“Colbert AO”); FEC Advisory Op. 2010-11 (Commonsense Ten), 2010 WL 3184269, at *1-*2 

(July 22, 2010) (“Commonsense Ten AO”); FEC Advisory Op. 2010-09 (Club for Growth), 2010 

Case 2:12-cv-00127-SWS Document 26 Filed 08/10/12 Page 16 of 58
7 

--, 2012 WL 2370445, at *17 (D. Vt. June 21, 2012) (“VRLC”) (Vermont’s organizational, 

registration, and disclosure requirements for PACs bear “a substantial relation to Vermont’s 

sufficiently important interest in permitting Vermonters to learn of the sources of significant 

influence in their state’s elections”), appeal docketed, No. 12-2904 (2d Cir. July 23, 2012); Iowa 

Right to Life Comm., Inc. v. Smithson, 750 F. Supp. 2d 1020, 1038-40 (S.D. Iowa 2010) (Iowa 

registration and disclosure requirements are substantially related to important government 

interest of “letting the public know who is speaking about a candidate shortly before an 

election”) (internal quotation marks and citation omitted). 

2. Major Purpose Test 

In 2004, the Commission issued a notice of proposed rulemaking, asking whether the 

agency should promulgate a regulatory definition of “political committee.” See Political 

Committee Status, 69 Fed. Reg. 11,736, 11,743-49 (Mar. 11, 2004). In 2007, after receiving 

public comments and holding extensive hearings, the Commission published a notice stating that 

the Commission had decided not to promulgate a new definition of “political committee” but 

instead to continue its longstanding practice of determining each organization’s major purpose 

through a case-by-case analysis of an organization’s conduct. Supplemental Explanation and 

Justification for the Regulations on Political Committee Status, 72 Fed. Reg. 5,595, 5,596-97, 

5,601 (Feb. 7, 2007).5

 The notice explained that while the major purpose test can be satisfied 

“through sufficiently extensive spending on Federal campaign activity,” id. at 5601 (citing FEC 

v. Mass. Citizens for Life, Inc., 479 U.S. 238, 262 (1986) (“MCFL”)), a fact-intensive analysis of 

each organization’s conduct, including public statements, fundraising appeals, and spending on 

other activity, can be instructive in evaluating the organization’s campaign activities compared to 

                                                                                                                                                                                               

WL 3184267, at *2 (July 22, 2010) (“Club for Growth AO”). Consistent with SpeechNow, the 

Commission further concluded that such committees still must register with the Commission and 

comply with all applicable reporting rules. See Colbert AO, 2011 WL 2662412, at *3; 

Commonsense Ten AO, 2010 WL 3184269, at *1-*2; Club for Growth AO, 2010 WL 3184267, 

at *2. 

5

 The complete administrative record of this rulemaking, including public comments, is 

available at http://sers.nictusa.com/fosers/viewreg.htm?regno=2003-07. 

Case 2:12-cv-00127-SWS Document 26 Filed 08/10/12 Page 17 of 58
8 

its activities unrelated to campaigns. Id. (citations omitted). The notice discussed a number of 

administrative and civil matters in which the Commission or a court had analyzed a group’s 

major purpose; these descriptions cumulatively “provide considerable guidance to all 

organizations” regarding the criteria that are used to apply the “major purpose” test. See id. at 

5,595, 5,605-5,606. In addition, the notice explained that the Commission refers to its regulatory 

definition of “express advocacy” to help determine whether an organization has satisfied the 

statutory criteria for political committee status by making $1,000 in expenditures in a calendar 

year. See id. at 5,604. 

 The Commission’s case-by-case approach was challenged under the Administrative 

Procedure Act, 5 U.S.C. §§ 701-06, and upheld in Shays v. FEC, 511 F. Supp. 2d 19, 29-31 

(D.D.C. 2007)). More recently, the Fourth Circuit upheld the constitutionality of the 

Commission’s case-by-case approach to applying the major purpose test. RTAA, 681 F.3d 

at 556. As the Fourth Circuit recognized, “Although Buckley did create the major purpose test, it 

did not mandate a particular methodology for determining an organization’s major purpose. And 

thus the Commission was free to administer FECA political committee regulations either through 

categorical rules or through individualized adjudications.” Id. at 556 (citing SEC v. Chenery 

Corp., 332 U.S. 194, 203 (1947)). 

C. Solicitation of Contributions 

FECA defines “contribution” to include “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.” 2 U.S.C. § 431(8)(A)(i); see 11 C.F.R. § 100.52(a). In 1979, Congress 

amended the Act, inter alia, to extend the disclaimer and disclosure requirements codified at 

section 441d(a) — which had previously applied only to express advocacy communications — to 

solicitations for contributions. FECA Amendments of 1979, Pub. L. No. 96-187, § 111, 93 Stat. 

1339, 1365-66 (1980); see FEC v. Survival Educ. Fund, Inc., 65 F.3d 285, 293 (2d Cir. 1995) 

(“SEF”) (rejecting district court’s construction of § 441d(a) as applying only to express advocacy 

communications in light of Congress’s “specific[] exten[sion]” of that provision in 1979 FECA 

Amendments to include solicitations for contributions). 

Case 2:12-cv-00127-SWS Document 26 Filed 08/10/12 Page 18 of 58
9 

 As amended, the Act requires “any person” who “solicits any contribution through any 

broadcasting station, newspaper, magazine, outdoor advertising facility, mailing, or any other 

type of general public political advertising” to include a specified disclaimer in the solicitation. 

2 U.S.C. § 441d(a); see 11 C.F.R. § 110.11(a)(3). If the solicitation was not paid for or 

authorized by a candidate, it must include a disclaimer clearly stating “who paid for the 

communication and . . . that the communication is not authorized by any candidate or candidate’s 

committee.” 2 U.S.C. § 441d(a)(3). Requests for funds that “clearly indicate[] that the 

contributions will be targeted to the election or defeat of a clearly identified candidate for federal 

office” are considered solicitations for contributions under the Act. SEF, 65 F.3d at 295 

(analyzing communications for purposes of section 441d(a)); see Pl.’s Mem. in Support of Mot. 

for Preliminary Injunctive Relief at 35-36 (“Pl. Mem.”) (invoking SEF standard for 

solicitations); Amend. Compl. ¶ 90 (same). 

III. PLAINTIFF’S ADVISORY OPINION REQUEST 

Plaintiff Free Speech is an unincorporated nonprofit association located in Wyoming that 

was formed on February 21, 2012. (Amend. Compl. ¶¶ 10, 13.) It seeks to finance and 

distribute certain communications anonymously, without registering as a political committee or 

complying with the disclaimer and disclosure obligations required for certain types of campaignrelated communications. (Id. ¶¶ 24-25, 47-50.) Free Speech alleges that it does not coordinate 

any of its activities with candidates, political party committees, or other political committees. 

(Id. ¶ 10.) It wishes to finance certain advertisements in various media outlets, and its 

Memorandum discusses two of them. (Pl. Mem. at 24-26.) 

 Plaintiff’s “Environmental Policy” radio advertisement reads: 

President Obama opposes the Government Litigation Savings Act. This is 

a tragedy for Wyoming ranchers and a boon to Obama’s environmentalist 

cronies. Obama cannot be counted on to represent Wyoming values and 

voices as President. This November, call your neighbors. Call your 

friends. Talk about ranching. 

Case 2:12-cv-00127-SWS Document 26 Filed 08/10/12 Page 19 of 58
10 

(Amend. Compl. ¶ 15.) Plaintiff plans to broadcast this advertisement approximately 60 times 

through November 3, 2012. (Id.) Its “Gun Control” Television advertisement reads: 

Guns save lives. That’s why all Americans should seriously doubt the 

qualifications of Obama, an ardent supporter of gun control. This fall, get 

enraged, get engaged, and get educated. And support Wyoming state 

candidates who will protect your gun rights. 

(Id. ¶ 16.) Free Speech alleges that it would like to spend $16,900 to publish a similar version of 

this ad in USA Today on or about November 1, 2012. (Id. ¶ 18.) 

 Free Speech also wishes to solicit donations of funds to finance additional, unidentified 

advertisements. (Id. ¶ 13.) Its “War Chest” Donation Request reads: 

Friends of freedom celebrated when the Supreme Court decided Citizens 

United. Now, more than ever, we can make the most effective use of your 

donations this coming fall. Donations given to Free Speech are funds 

spent on beating back the Obama agenda. Beating back Obama in the 

newspapers, on the airwaves, and against his $1 billion war chest. 

(Amend. Compl. Exh. A.) And its “Make Them Listen” Donation Request reads: 

In 2010, the Tea Party movement ushered in an historic number of libertyfriendly legislators. But President Obama and his pals in Congress didn’t 

get the message. Stop the bailouts. No socialized healthcare. End 

oppressive taxes. But we won’t be silenced. Let’s win big this fall. 

Donate to Free Speech today. 

(Id.) 

On February 29, 2012, Free Speech submitted a letter to the Commission requesting an 

advisory opinion, including on the proposed activities outlined above.6

 (Amend. Compl. Exh. A 

(FEC, AO Request 2012-11, Letter from Benjamin T. Barr & Stephen R. Klein, Wyoming 

Liberty Group, to Anthony Herman, Feb. 29, 2012 (“AO Request”)).) Free Speech asked 

whether (a) any of its proposed advertisements or donation requests would be deemed express 

                                                           

6

 The AO Request became complete on March 9, 2012, after counsel clarified certain 

aspects of Free Speech’s AO Request in supplemental correspondence with the Commission. 

(See E-mail from Benjamin Barr, Counsel for Free Speech, to FEC Staff (Mar. 9, 2012, 1:36 

PM), included in AO Request (Amend. Compl. Exh. A).) 

Case 2:12-cv-00127-SWS Document 26 Filed 08/10/12 Page 20 of 58
11 

advocacy; (b) any of its proposed donation requests would be deemed “solicitations”; and (c) its 

proposed activities would require it to register with the Commission as a political committee. 

(Id.) 

On April 12, 2012, the Commission held an open session during which it considered two 

draft responses to Free Speech’s AO Request.7

 Draft A concluded that none of Free Speech’s 

11 proposed advertisements would expressly advocate the election or defeat of a clearly 

identified Federal candidate; none of its proposed donation requests would be a solicitation of 

contributions; and Free Speech’s proposed activities would not require it to register and report 

with the Commission as a political committee. (Amend. Compl. Exh. B (FEC, Draft AO 

2012-11 – Draft A, Agenda Doc. 12-24)) (“Draft A”).) Draft B concluded that seven of Free 

Speech’s 11 proposed advertisements — including the “Environmental Policy” radio ad and the 

“Gun Control” television ad discussed in plaintiff’s Memorandum — would expressly advocate 

the election or defeat of a clearly identified Federal candidate. (Amend. Compl. Exh. C (FEC, 

Draft AO 2012-11 – Draft B, Agenda Doc. 12-24, at 1, 6-7, 11-13)) (“Draft B”).) Draft B further 

concluded that two of the four proposed donation requests — the “War Chest” and “Make Them 

Listen” donation requests discussed in plaintiff’s Memorandum — would be solicitations of 

contributions (id. at 1, 17-18, 20-21) and that Free Speech’s proposed activities would require it 

to register and report with the Commission as a political committee (id. at 1, 22-26). 

At a second open meeting on April 26, 2012, the Commission considered a third draft 

response to Free Speech’s AO Request. Draft C resembled Draft A and reached nearly the same 

                                                           

7

 Plaintiff’s description of the advisory opinion process — “requestors are not allowed to 

speak unless spoken to” (Pl. Mem. at 39) — is misleading. Requestors “speak” by submitting a 

“complete written request” concerning the application of FECA or Commission rules or 

regulations “with respect to a specific transaction or activity.’” 2 U.S.C. § 437f(a)(1). 

Requestors and members of the public are also permitted to submit written comments on draft 

opinions. See Notice of New Advisory Opinion Procedures and Explanation of Existing 

Procedures, 74 Fed. Reg. 32,160, 32,160 (July 7, 2009). While requestors are permitted to 

attend the Commission’s open meetings to answer Commissioners’ questions, such meetings are 

not intended to be formal oral hearings, which the Commission determined were “not needed and 

would prove unworkable within the short statutory deadlines for issuing advisory opinions.” Id. 

at 32,161. 

Case 2:12-cv-00127-SWS Document 26 Filed 08/10/12 Page 21 of 58
12 

conclusions as Draft A had reached, except that unlike Draft A, Draft C concluded that two of 

Free Speech’s proposed advertisements — neither of which is discussed in plaintiff’s 

Memorandum, see infra n.9 — would expressly advocate the election or defeat of a clearly 

identified Federal candidate.8

 (Amend. Compl. Exh. D (FEC, Draft AO 2012-11 – Draft C, 

Agenda Doc. 12-24-B (“Draft C”).) 

On April 26, 2012, having considered the three drafts, three Commissioners supported 

issuance of Draft B, and three Commissioners supported issuance of Draft C. Thereafter, on 

May 8, 2012, the Commission approved a response to Free Speech’s AO Request concluding 

that two of Free Speech’s 11 proposed advertisements would expressly advocate the election or 

defeat of a clearly identified Federal candidate,9

 and two of the four proposed donation requests 

would not be solicitations under the Act.10 (Amend. Compl. Exh. G at 1 (FEC, AO 2012-11, 

May 8, 2012) (“Free Speech AO”).) The response explained that the Commission was unable to 

approve a response by the required four affirmative votes about Free Speech’s remaining nine 

propose advertisements, its two other proposed donation requests, and the question of whether 

Free Speech must register as a political committee. Id.; see 2 U.S.C. §§ 437c(c), 437d(a)(7) 

(requiring affirmative vote of four members of Commission for Commission to render advisory 

opinion). 

                                                           

8

 Although the introduction to Draft C states that only one of the proposed advertisements 

was express advocacy, the Draft later clarifies that its conclusion regarding the single “Financial 

Reform” script applies to two “‘Financial Reform’ advertisements, which Free Speech 

propose[d] to air on the radio and run in newspapers.” (Compare Draft C at 1, with id. at 27.) 

9

 Plaintiff’s Memorandum omits any discussion of these “Financial Reform” 

advertisements, which the Commission unanimously concluded were express advocacy under 

11 C.F.R. § 100.22(a). (Free Speech AO at 4-5.) 

10 Despite plaintiff’s characterization of the advisory opinion process (see Pl. Mem. at 23), 

the Commission approved this response within the timeframe proscribed by the Act. See

2 U.S.C. § 437f(a)(1) (requiring the Commission to respond to an advisory opinion request 

within 60 days of the date the request is complete). 

Case 2:12-cv-00127-SWS Document 26 Filed 08/10/12 Page 22 of 58
13 

ARGUMENT 

I. A PRELIMINARY INJUNCTION IS AN EXTRAORDINARY REMEDY THAT 

REQUIRES PLAINTIFF TO MEET A HEAVY BURDEN 

To obtain a preliminary injunction, a plaintiff bears a heavy burden. It is an 

“extraordinary” remedy. Awad v. Ziriax, 670 F.3d 1111, 1125 (10th Cir. 2012). A plaintiff 

“must show that four factors weigh in [its] favor: (1) [it] is substantially likely to succeed on the 

merits; (2) [it] will suffer irreparable injury if the injunction is denied; (3) [its] threatened injury 

outweighs the injury the [Commission] will suffer under the injunction; and (4) the injunction 

would not be adverse to the public interest.” Id. (quoting Beltronics USA, Inc. v. Midwest 

Inventory Distrib., LLC, 562 F.3d 1067, 1070 (10th Cir. 2009)); see Winter v. Natural Res. Def. 

Council, Inc., 129 S. Ct. 365, 374 (2008). 

Because Free Speech seeks an injunction to upset the status quo, it faces an even higher 

hurdle. A injunction that alters the status quo is a “disfavored type of injunction” and “must be 

more closely scrutinized to assure that the exigencies of the case support granting of a remedy 

that is extraordinary even in the normal course.” Awad, 670 F.3d at 1125; see Turner Broad. 

Sys., Inc. v. FCC, 507 U.S. 1301 (1993) (Rehnquist, C.J., in chambers) (refusing to enjoin 

enforcement of congressional act despite First Amendment claim and noting that, “[b]y seeking 

an injunction, applicants request that I issue an order altering the legal status quo.”) (emphasis in 

original); Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981) (“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.”). Such an injunction is particularly inappropriate in the pre-election context, where 

“considerations specific to election cases” weigh even further against the issuance of 

injunctions. Purcell v. Gonzalez, 549 U.S. 1, 4 (2006) (per curiam) (vacating lower court’s 

injunction against enforcement of election statute and noting potential for pre-election 

injunctions to cause confusion among voting public). 

Free Speech claims that it “may” be entitled to injunctive relief merely by establishing 

“that the latter three elements [of irreparable injury, balance of harms, and no harm to the public 

interest] alone tip in [its] favor.” (Pl. Mem. at 3 (citing Davis v. Mineta, 302 F.3d 1104, 1111 

Case 2:12-cv-00127-SWS Document 26 Filed 08/10/12 Page 23 of 58
14 

(10th Cir. 2002)).) Free Speech is wrong. That argument not only is contrary to the Tenth 

Circuit’s recent decision in Awad and the Supreme Court’s 2008 decision in Winter, but also 

misrepresents the actual test articulated in the case it cites for the proposition, Davis, decided 

years earlier. In this Circuit, “[a] district court may not grant a preliminary injunction unless the 

moving party makes a strong showing both with regard to the likelihood of success on the merits 

and with regard to the balance of harms.” Awad, 670 F.3d at 1125 (emphasis added) (collecting 

cases).11 

II. PLAINTIFF FAILS TO MAKE THE REQUIRED SHOWING THAT IT IS 

LIKELY TO PREVAIL ON THE MERITS 

A. Applicable Legal Standards for Plaintiff’s Constitutional Claims 

1. Intermediate Scrutiny Applies Here 

In determining the level of constitutional scrutiny applicable to campaign finance 

regulations, the Supreme Court has long distinguished between disclosure provisions, which are 

subject to intermediate (sometimes referred to as “exacting”) scrutiny, and expenditure limits, 

which are subject to strict scrutiny. See, e.g., Buckley, 424 U.S. at 64. 

Although “disclosure requirements may burden the ability to speak . . . they impose no 

ceiling on campaign-related activities and do not prevent anyone from speaking.” Citizens 

United, 130 S. Ct. at 914 (internal quotation marks and citations omitted). Disclosure provisions 

thus require only “a ‘substantial relation’ between the disclosure requirement and a ‘sufficiently 

important’ governmental interest.” Id. (quoting Buckley, 424 U.S. at 64, 66); see also RTAA, 

681 F.3d at 549 (analyzing section “100.22(b) and [Commission’s] policy for determining the 

major purpose of an organization under the exacting scrutiny standard” because “even after 

                                                           

11 Davis nowhere suggests that a party may be relieved from having to make any showing 

regarding the merits. Instead, the court described a “modified” test, whereby a movant could 

address the question of its likely success on the merits by “showing that questions going to the 

merits are so serious, substantial, difficult, and doubtful as to make the issue ripe for litigation 

and deserving of more deliberate investigation.” 302 F.3d at 1111 (internal quotation marks and 

citation omitted). But even this test has been undermined by Winter, which requires the plaintiff 

to “make a clear showing that it will likely succeed on the merits at trial.” Real Truth About 

Obama, Inc. v. FEC, 575 F.3d 342, 346 (4th Cir. 2009) (citing Winter, 129 S. Ct. at 374). 

Case 2:12-cv-00127-SWS Document 26 Filed 08/10/12 Page 24 of 58
15 

Citizens United, it remains the law that provisions imposing disclosure obligations are reviewed 

under the intermediate scrutiny level of ‘exacting scrutiny’”) (citing Reed, 130 S. Ct. at 2818; 

SpeechNow, 599 F.3d at 696; Nat’l Org. for Marriage v. McKee, 649 F.3d 34, 55-57 (1st Cir. 

2011), cert. denied, 132 S. Ct. 1635 (2012)); Human Life of Wash. Inc. v. Brumsickle, 624 F.3d 

990, 1003-05 (9th Cir. 2010) (same), cert. denied, 131 S. Ct. 1477 (2011). 

After Citizens United, section 100.22’s definition of express advocacy implicates only 

disclosure requirements: Section 100.22 provides guidance on the definition of “independent 

expenditures,” which must include certain disclaimers and whose financing must be reported to 

the Commission for public disclosure; it also can be relevant to whether a group has made more 

than $1,000 in expenditures, spending that can trigger political-committee status. See

2 U.S.C. §§ 431(17)(A), 431(4)(A). For entities like Free Speech that do not make contributions 

to federal candidates, political-committee status also gives rise only to disclosure and 

organizational requirements; such groups remain free to make unlimited expenditures and 

receive unlimited contributions from eligible contributors. See supra p. 6 & n.4.12 

Plaintiff nevertheless argues (Pl. Mem. at 27) for strict scrutiny here based on its 

unsupported contention that “the Supreme Court and Tenth Circuit have consistently recognized 

the severe burdens of registration and reporting.” To the contrary, Citizens United confirmed 

that “[d]isclaimer and disclosure requirements” are subject to “‘exacting scrutiny,’ which 

requires a ‘substantial relation’ between the disclosure requirement and a ‘sufficiently important’ 

governmental interest.” 130 S. Ct. at 914 (citations omitted); accord New Mexico Youth 

Organized v. Herrera, 611 F.3d 669, 676 (10th Cir. 2010) (distinguishing state regulations 

imposing political committee registration and disclosure requirements “from regulations that 

limit the amount of speech a group may undertake” and concluding that under Buckley, the 

former category “must pass ‘exacting scrutiny’”); see also, e.g., RTAA, 681 F.3d at 558 

                                                           

12 According to its bylaws, Free Speech cannot make contributions. (Amend. Compl. Exh. 

A, Article IV, § 7.) In any event, contribution limits, like disclosure requirements, are subject to 

intermediate scrutiny. McConnell, 540 U.S. at 134-41; Republican Nat’l Comm. v. FEC, 

698 F. Supp. 2d 150, 156 (D.D.C. 2010) (three-judge court), aff’d mem., 130 S. Ct. 3544 (2010).

Case 2:12-cv-00127-SWS Document 26 Filed 08/10/12 Page 25 of 58
16 

(analyzing section 100.22(b) and Commission’s method of determining political committee 

status under exacting scrutiny standard); SpeechNow, 599 F.3d at 698; McKee, 649 F.3d at 

55-57; Brumsickle, 624 F.3d at 1003-05; Smithson, 750 F. Supp. 2d at 1036-37. Strict scrutiny 

plainly has no application here. 

2. Plaintiff’s Burden for Its Facial Challenges 

Plaintiff’s facial challenges include claims of both overbreadth and vagueness.13 The 

Tenth Circuit has held that a plaintiff bringing a facial challenge “must establish that the law, in 

every application, ‘creates an impermissible risk of suppression of ideas, such as an ordinance 

that delegates overly broad discretion to the decisionmaker, and in cases where the ordinance 

sweeps too broadly, penalizing a substantial amount of speech that is constitutionally 

protected.’” Colo. Right to Life Comm., Inc. v. Coffman, 498 F.3d 1137, 1155 (10th Cir. 2007) 

(quoting Forsyth Cnty. v. Nationalist Movement, 505 U.S. 123, 129-30 (1992)).14 

Thus, Free Speech carries the “heavy burden of proving” that the challenged regulations’ 

“‘application to protected speech is substantial, ‘not only in an absolute sense, but also relative to 

                                                           

13 Although Free Speech styles its claims as both as-applied and facial challenges, it does 

little to support its purported as-applied claims, offering minimal explanation of how the 

challenged provisions are unconstitutional as they pertain to the specific communications 

plaintiff wishes to distribute. See VRLC, 2012 WL 2370445, at *8 (noting VRLC’s general 

failure to craft its as-applied vagueness claim); Iowa Right to Life Comm., Inc. v. Tooker, 

795 F. Supp. 2d 852, 862 n.16 (S.D. Iowa 2011) (noting IRTL’s failure to distinguish between its 

facial and as-applied arguments). Like the plaintiff in VRLC, Free Speech “seems to argue that 

the provisions here must be vague as applied to it because they are vague in all applications.” 

VRLC, 2012 WL 2370445, at *8. Such an argument “flips on its head the general ‘preference for 

as-applied review even where First Amendment rights are implicated,” id. (quoting United States 

v. Farhane, 634 F.3d 127, 138 n.9 (2d Cir. 2011)), and could provide a basis for the court “to 

reject [plaintiff’s] claims summarily if [it] were so inclined,” id. (citing and quoting 

parenthetically McKee, 669 F.3d at 43). 

14 The Supreme Court has used various formulations in determining facial overbreadth. 

Compare, e.g., United States v. Salerno, 481 U.S. 739, 745 (1987) (plaintiff must “establish that 

no set of circumstances exists under which the Act would be valid”), with, e.g., New York v. 

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

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

Oklahoma, 413 U.S. 601, 615 (1973)). 

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the scope of the law’s plainly legitimate applications.’” McConnell, 540 U.S. at 207 (quoting 

Virginia v. Hicks, 539 U.S. 113, 120 (2003)). 

Free Speech also argues that the regulation and policies it challenges are 

unconstitutionally vague on their face. To prevail on this theory — and it cannot — Free Speech 

must show that they fail to give “the person of ordinary intelligence a reasonable opportunity to 

know what is prohibited, so that he may act accordingly” and permit “arbitrary and 

discriminatory enforcement.” Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). 

B. Section 100.22(b) Is Constitutional 

 Section 100.22 defines “expressly advocating” and thus provides guidance on whether a 

communication is an independent “expenditure” under the Act. For a communication to 

constitute “express advocacy” under 11 C.F.R. § 100.22(b), it must contain an “electoral portion” 

that is “unmistakable, unambiguous, and suggestive of only one meaning,” as to which 

“[r]easonable minds could not differ [that] it encourages actions to elect or defeat one or more 

clearly identified candidate(s).” 

 As discussed supra pp. 2-5, the regulation originally functioned in part to implement the 

ban on corporate and union independent expenditures in 2 U.S.C. § 441b, which the Supreme 

Court struck down in Citizens United. Because such prohibitions no longer exist, the regulation 

no longer implements spending limits but instead implicates only disclosure requirements. See 

supra pp. 2-5; RTAA, 681 F.3d at 548. Thus, contrary to plaintiff’s hyperbolic assertion, section 

100.22(b) does not “muzzle” any First Amendment activity (Pl. Mem. at 11). It simply triggers 

disclosure requirements for communications that unambiguously call for the election or defeat of 

a federal candidate and helps determine whether an organization must register and report as a 

political committee.15 Moreover, far from defining “almost any speech” as express advocacy (Pl. 

Mem. at 10), the regulation is narrow, objective, and consistent with Supreme Court precedent. 

                                                           

15 Because section 100.22(b) no longer serves to implement a ban on corporate spending, 

plaintiff’s repeated characterization of the regulation as a tool for suppressing political speech is 

no more than empty rhetoric, and plaintiff’s reliance on cases addressing speech restrictions is 

misplaced. (See, e.g., Pl. Mem. at 18 (invoking Tenth Circuit’s invalidation of state law “speech 

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18 

 1. Section 100.22(b) Is Not Unconstitutionally Vague 

a. The regulation is consistent with WRTL’s definition of the 

functional equivalent of express advocacy

As the Fourth Circuit recently concluded, section 100.22(b)’s definition of “express 

advocacy” is not vague and comports with the articulation of the “functional equivalent of 

express advocacy” that the Supreme Court recognized in WRTL and applied in Citizens United. 

RTAA, 681 F.3d at 552-55. Fundamentally, section 100.22(b) — like the Supreme Court’s 

WRTL test — provides that any communication that can reasonably be interpreted as noncandidate advocacy is excluded from the regulation. Compare 11 C.F.R. § 100.22(b) 

(“[r]easonable minds could not differ”), with WRTL, 551 U.S. at 469-70 (“susceptible of no 

[other] reasonable interpretation”). And both definitions are objective, precluding consideration 

of the speaker’s “subjective intent.” Compare WRTL, 551 U.S. at 472, with Express Advocacy; 

Independent Expenditures; Corporate and Labor Organization Expenditures, 60 Fed. Reg. 

35,292, 35,295 (July 6, 1995); see Citizens United, 130 S. Ct. at 895, 889-90 (describing WRTL’s

“functional equivalent of express advocacy” test as “objective”).16 

                                                                                                                                                                                               

bans aimed at corporations”); id. at 12 (citing Speiser v. Randall, 357 U.S. 513 (1958), which 

invalidated a “discriminatory denial of a tax exemption for engaging in [certain] speech” because 

it “is a limitation on free speech”).) In addition, plaintiff’s reliance on FCC v. Fox Television 

Stations, Inc., 132 S. Ct. 2307 (2012), rests on a misunderstanding of the holding in that case. 

According to Free Speech, the regulations at issue in Fox — which, unlike section 100.22(b), 

defined speech that could result in an imposition of a fine — “proved fatal because the 

regulations touched upon ‘sensitive areas of basic First Amendment freedoms.’” (Pl. Mem. at 16 

(quoting Fox, 132 S. Ct. at 2318 (internal quotation marks and citation omitted)) (emphasis 

added).) Not so. “[B]ecause the Court “resolve[d] [Fox] on fair notice grounds under the Due 

Process Clause it [did] not address the First Amendment implications of the [FCC’s] indecency 

policy.” Fox, 132 S. Ct. at 2320 (emphasis added). 

16 The regulation’s “reasonable person” test is like other objective constitutional tests. See, 

e.g., Wyatt v. Cole, 504 U.S. 158, 166 (1992) (qualified immunity depends upon a “wholly 

objective standard” based on whether a “reasonable person” would have known of clearly 

established rights) (citation omitted); Florida v. Jimeno, 500 U.S. 248, 251 (1991) (“[C]onsent 

under the Fourth Amendment is that of ‘objective’ reasonableness — what would the typical 

reasonable person have understood by the exchange between the officer and the suspect?”) 

(citation omitted). 

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 In the controlling opinion in WRTL, Chief Justice Roberts specifically rejected Justice 

Scalia’s argument in a separate opinion that the WRTL test was “impermissibly vague.” WRTL, 

551 U.S. at 474 n.7. And the fact that the Court applied the WRTL test in Citizens United puts to 

rest any credible claim that the standard is constitutionally infirm. See Citizens United, 130 S. 

Ct. at 889-90 (applying “the standard stated in McConnell and further elaborated in WRTL” to 

conclude that film criticizing presidential candidate Hillary Clinton “qualifie[d] as the functional 

equivalent of express advocacy”). Relying on the striking similarity between the standard in 

section 100.22(b) and the Chief Justice’s articulation of the test in WRTL, the Fourth Circuit 

flatly rejected a constitutional challenge to section 100.22(b). The court held that “§ 100.22(b) is 

constitutional . . . and consistent with the test developed in Wisconsin Right to Life and is not 

unduly vague” or overbroad. RTAA, 681 F.3d at 551-52, 555. 

The Fourth Circuit explained: 

The language of § 100.22(b) is consistent with the test for the “functional 

equivalent of express advocacy” that was adopted in Wisconsin Right to 

Life, a test that the controlling opinion specifically stated was not 

“impermissibly vague.” Moreover, just as the “functional equivalent” test 

is objective, so too is the similar test contained in § 100.22(b). 

Both standards are also restrictive, in that they limit the application of the 

disclosure requirements solely to those communications that, in the 

estimation of any reasonable person, would constitute advocacy. 

Although it is true that the language of § 100.22(b) does not exactly mirror 

the functional equivalent definition in WRTL . . . the differences between 

the two tests are not meaningful. Indeed, the test in § 100.22(b) is likely 

narrower than the one articulated in Wisconsin Right to Life, since it 

requires a communication to have an “electoral portion” that is 

“unmistakable” and “unambiguous.” 

RTAA, 681 F.3d at 552 (internal citations omitted; emphasis added). 

 The controlling opinion in WRTL and the Fourth Circuit’s analysis in RTAA refute 

plaintiff’s unsupported characterizations of section 100.22(b) as a “muddled mess” of “fuzzy 

factors” that are “remarkably vague” and “subjective.” (See Pl. Mem. at 1, 12, 13.) 

It is telling that plaintiff elects not to discuss RTAA but instead to dismiss it by 

(1) labeling it “an aberration”; (2) making the unremarkable point that Fourth Circuit precedent 

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is not binding on this court; (3) claiming baldly that RTAA “stands in conflict” with “the Tenth 

Circuit’s clear adherence to speech-protective principles,” while failing to explain or even cite a 

single, specific holding or statement by the Tenth Circuit that conflicts with RTAA; (4) claiming, 

again without support, that “the facts and legal theories presented to this court are different than 

those presented in RTAA”; and (5) making the irrelevant and uncontroversial point that “there is 

no reason to doubt the continued viability of Citizens United.” (Id. at 6.) All of these points lack 

merit. 

First, RTAA is hardly “an aberration.” The Fourth Circuit’s decision follows directly 

from the Supreme Court’s holdings and reasoning in McConnell, WRTL, and Citizens United, 

and the Fourth Circuit explicitly relies on the analyses and holdings in those decisions. See 

RTAA, 681 F.3d at 548-55. RTAA is also entirely consistent with other lower courts’ 

understanding of those decisions. See supra pp. 15-16; infra pp. 26-27, 37-38 & n.31. 

Second, RTAA does not conflict with either of the Tenth Circuit decisions plaintiff cites 

or any others of which the Commission is aware. Neither Coffman nor Herrera addressed the 

constitutionality of section 100.22(b). Coffman, decided before Citizens United, involved 

challenges to state campaign finance laws prohibiting corporations from directly financing 

expenditures. See 498 F.3d at 1139-41. And Herrera, decided in 2010, supports the 

Commission’s analysis, not plaintiff’s unsubstantiated arguments. Herrera recognized that 

(a) state disclosure regulations like those challenged here are subject to intermediate scrutiny,

611 F.3d at 676 (citing Buckley, 424 U.S. at 64; Reed, 130 S. Ct. at 2818); and (b) speech that “is 

the functional equivalent of express advocacy for the election or defeat of a specific candidate is 

unambiguously related to the campaign of a candidate and thus properly subject to regulation 

regardless of its origin,” compare id. (citing WRTL, 551 U.S. at 476), with Pl. Mem. at 19 

(quoting Herrera and claiming without support that after Citizens United, the Supreme Court 

“has abandoned” that standard). 

Third, while of course RTAA was a “different” case, just as here it involved a facial 

challenge to section 100.22(b), and the Fourth Circuit addressed several of the same points raised 

here when it rejected RTAA’s arguments for strict scrutiny, overbreadth, and vagueness. For 

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example, the Fourth Circuit rejected the analogy that the plaintiff there attempted to draw 

between the “two-part, 11-factor balancing test” in 11 C.F.R. § 114.15 and section 100.22(b), 

finding them “substantially distinguishable.” Compare RTAA, 681 F.3d at 553-54 (“The 

Supreme Court’s criticism of § 114.15 can hardly cast doubt on § 100.22(b).”), with Pl. Mem. 

at 3, 9, 37-38 (analogizing Supreme Court’s criticism of § 114.15). 

The Fourth Circuit also rejected the argument, raised here, that certain individual words 

or phrases contained in section 100.22(b) are vague. (Pl. Mem. at 12-13.) The Fourth Circuit 

explained that “[r]egardless . . . of whether words might be insufficiently clear when standing 

alone, we cannot conclude that they render the [regulation] vague when considered in their 

context.” RTAA, 681 F.3d at 554. Recognizing the similarity between section 100.22(b) and 

“the relevant language from [WRTL’s] ‘functional equivalent’ test,” the Fourth Circuit concluded 

that “[i]f, as the Supreme Court has held, the test in [WRTL] is not vague, then neither is 

§ 100.22(b).” Id. 

The Fourth Circuit likewise disagreed with the assertion that a communication’s 

“proximity to the election” is an impermissible consideration in determining whether it is express 

advocacy or the functional equivalent thereof. Compare RTAA, 681 F.3d at 554, with Pl. Mem. 

at 17.17 It explained that the Supreme Court has “simply held that the timing of speech cannot be 

used as a proxy for a speaker’s intent.” RTAA, 681 F.3d at 554 (citing WRTL, 551 U.S. at 472). 

But both section 100.22(b) and WRTL’s “functional equivalent” test eschew considerations of 

subjective intent, id., and “while considering timing with respect to electioneering 

communications[, which have a time-sensitive statutory definition], would prove redundant, a 

limited reference to whether, for example an ad airs in an election year, would actually help limit 

the number of communications that are considered independent expenditures.” Id. 

                                                           

17 Plaintiff cites Citizens United and asserts that “the Supreme Court has already determined 

that timing of communications, or their proximity to an election, is irrelevant for purposes of 

express advocacy analysis” (Pl. Mem. at 17 (citing Citizens United, 130 S. Ct. at 895)), but 

neither the cited portion nor any other part of that opinion supports plaintiff’s assertion. 

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In sum, the Fourth Circuit’s decision, though not controlling, is instructive here. The 

analysis and conclusions in RTAA directly refute many of plaintiff’s arguments challenging the 

constitutionality of section 100.22(b), and plaintiff does not — and cannot — seriously attempt 

to distinguish that decision. 

b. Disagreements in the application of section 100.22(b) do not 

demonstrate that the regulation is unconstitutionally vague

Although the Commissioners were not unanimous in their application of section 

100.22(b) to some of plaintiff’s proposed communications, this fact “proves little because,” as 

the Fourth Circuit recognized, “cases that fall close to the line will inevitably arise when 

applying § 100.22(b).” RTAA, 681 F.3d at 554. “This kind of difficulty is simply inherent in any 

kind of standards-based test.” Id. at 554 (citations omitted); see United States v. Williams, 553 

U.S. 285, 306 (2008) (“Close cases can be imagined under virtually any statute. The problem 

that poses is [not] addressed . . . by the doctrine of vagueness.”); United States v. Wurzbach, 280 

U.S. 396, 399 (1930) (holding that Federal Corrupt Practices Act was not facially vague because 

“[w]herever the law draws a line there will be cases very near each other on opposite sides”). 

Moreover, plaintiff’s attempted mockery of the analyses and conclusions of the 

Commissioners with whom it disagrees is misleading. For example, Draft B, which found 

plaintiff’s “Environmental Policy” radio ad to be express advocacy, does not rely on “a loose 

mélange of factors.” (Pl. Mem. at 24.) Nor does Draft B conclude that the ad is express 

advocacy because it fails to “sufficiently explain” the merits of the Government Litigation 

Savings Act or because it “mention[s] the wrong month.” (Id.) Likewise, Draft B’s conclusion 

has nothing to do with whether the Commissioners “care for [plaintiff’s] criticism of the 

president.” (Id. at 18.) Plaintiff, of course, is free to mention any month it likes, to explain the 

merits of a particular piece of legislation (or not), and to criticize the President. Section 

100.22(b) does not prohibit any speech. But the “Environmental Policy” ad triggers the Act’s 

disclosure requirements because the radio ad clearly attacks the President and links that criticism 

to the month of the upcoming election when it says, “Obama cannot be counted on to represent 

Wyoming values and voices as President. This November, call your neighbors.” The ad does not 

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even hint at what the Government Litigation Savings Act concerns,18 nor does it identify any 

means by which one could find out; it is thus different from what the controlling opinion in 

WRTL identified as “a genuine issue ad.” See WRTL, 551 U.S. at 469-70 & n.6 (explaining that a 

“genuine issue ad” “conveys information and educates” and distinguishing such ads from those 

that “condemn [a candidate’s] record on a particular issue”) (citation omitted). Draft B thus 

concludes that the “Environmental Policy” radio ad, “when taken as a whole” “‘goes beyond 

issue discussion to express electoral advocacy,’ asserting that President Obama ‘cannot be 

counted on to represent Wyoming values and voices as President’ and concluding with a call to 

action ‘this November.’” (Draft B at 7 (quoting MCFL, 479 U.S. at 249).) 

Equally erroneous is plaintiff’s characterization of Draft B as concluding that “‘Support 

Wyoming State Candidates’ equals ‘Vote Against Obama.’” (Pl. Mem. at 26.) It says no such 

thing. In finding that plaintiff’s “Gun Control” television ad is express advocacy, Draft B 

identifies two exhortations, one concerning President Obama and another concerning Wyoming 

state candidates. (Draft B at 12-13.) Regarding President Obama, Draft B concludes that “[t]he 

advertisement exhorts ‘all Americans’ to ‘seriously doubt’ President Obama’s ‘qualifications’ 

based on his ‘ardent support[]’ of gun control” and “the advertisement’s ‘electoral portion’ then 

immediately exhorts viewers to ‘get enraged, get engaged, and get educated,’ and to do so ‘this 

fall’” in the year of a presidential election. (Id. at 12.) Draft B acknowledges the ad’s 

“additional exhortation to ‘support Wyoming state candidates who will protect your gun rights,’” 

(id. (emphasis added)), but concludes that such language does not preclude a finding of express 

advocacy as to the separate portion of the ad concerning a clearly identified presidential 

candidate. (Id. at 12-13.) 

The analysis in Draft B, which was issued before the Fourth Circuit decided RTAA, 

affirming the district court’s opinion, is consistent with the district court’s application of section 

100.22(b) to the ads at issue in that case. (See id. at 11, 12, 16 (citing Real Truth About Obama, 

                                                           

18 The Government Litigation Savings Act is an unenacted bill that proposed amendments 

to the Equal Access to Justice Act. See generally H.R. 1996, 112th Cong. (2011). 

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Inc. v. FEC, 796 F. Supp. 2d 736, 749-50 (E.D. Va. 2011) (“RTAO”), aff’d, RTAA, 681 F.3d 544 

(4th Cir. 2012).) Specifically, the district court agreed with the Commission’s conclusion that 

Real Truth’s “Survivors” ad was express advocacy and lawfully regulated under section 

100.22(b). That ad “focuse[d] entirely on then-Senator Obama’s position on abortion, . . . 

call[ed] Senator Obama’s votes on state abortion legislation ‘horrendous,’ . . . claim[ed] he ‘tried 

to cover-up’ those votes and lied about them,” and “call[ed] Senator Obama ‘callous.’”19 RTAO, 

796 F. Supp. 2d at 750; see also Citizens United, 130 S. Ct. at 890 (concluding that film 

providing “extended criticism of Senator Clinton’s character and her fitness for the office of the 

Presidency” was “equivalent to express advocacy”); WRTL, 551 U.S. at 470 (identifying certain 

“indicia of express advocacy” such as whether a communication “mention[s] an election, 

candidacy, political party, or challenger” or “take[s] a position on a candidate’s character, 

qualifications, or fitness for office”). Like Free Speech’s proposed ads, the “Survivors” ad 

invoked a policy issue as a basis for opposing a presidential candidate. Free Speech’s ads go 

even further, concluding their criticism of President Obama with exhortations to take action “in 

November” or “this fall,” in a presidential election year. In sum, plaintiff fails to explain how 

Draft B’s actual analysis and conclusions, as opposed to plaintiff’s result-driven effort at 

caricature, demonstrate that section 100.22(b) is vague. 

 2. Section 100.22(b) Is Not Overbroad

Supreme Court decisions culminating in Citizens United have held that disclosure 

requirements may reach even beyond express advocacy or its functional equivalent. After 

clarifying that Buckley’s “express advocacy limitation, in both the expenditure and the disclosure 

contexts, was the product of statutory interpretation, rather than a constitutional command,” 

McConnell upheld BCRA’s disclosure requirements for electioneering communications. 540 

U.S. at 191-92, 194-99. The Court reiterated the “important state interests” served by disclosure 

requirements — interests that include “providing the electorate with information” and “deterring 

                                                           

19 Like the disagreement among Commissioners over some of Free Speech’s 

communications, the disagreement between the Commission and the district court over Real 

Truth’s “Change” ad does not mean that section 100.22(b) is vague. RTAA, 681 F.3d at 554. 

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actual corruption and avoiding any appearance thereof.” Id. at 196 (citing Buckley). The Court 

noted that the only constitutional challenges it had ever sustained to such disclosure provisions 

involved situations in which disclosure led to “threats, harassment, and reprisals” against 

individuals engaged in First Amendment activity. See id. at 197-98. The Court held that in the 

absence of evidence showing a “reasonable probability” of such incidents occurring, id. at 

198-99, a constitutional challenge to disclosure of electioneering communications is 

“foreclose[d].” Id. at 197. 

In Citizens United, the Court upheld BCRA’s disclosure requirements as applied to a 

movie that was the functional equivalent of express advocacy; the Court found that the film 

“would be understood by most viewers as an extended criticism of Senator [Hillary] Clinton’s 

character and her fitness for the office of the Presidency.” 130 S. Ct. at 889-90. But the Court 

also upheld BCRA’s disclosure requirements for all electioneering communications — even as 

applied to three advertisements for the movie, which the Commission had conceded were not the 

functional equivalent of express advocacy. Id. at 914-16. Eight Justices agreed that disclosure is 

“less restrictive” of speech than a limit on spending, id. at 915, and is a constitutionally 

permissible method of furthering the public’s important interest in knowing who is responsible 

for pre-election communications that speak about candidates, see id. at 915-16. Such mandatory 

disclosure is constitutional even if the communications contain no direct candidate advocacy but 

“only pertain to a commercial transaction.” Id. (citing Buckley, 424 U.S. at 75-76; McConnell, 

540 U.S. at 321). 

As the Court explained, “[t]he First Amendment protects political speech; and disclosure 

permits citizens and shareholders to react to the speech . . . in a proper way. This transparency 

enables the electorate to make informed decisions and give proper weight to different speakers 

and messages.” 130 S. Ct. at 916. In particular, when asked to confine the “disclosure 

requirements . . . to speech that is the functional equivalent of express advocacy,” the Court 

flatly “reject[ed] this contention.” Id. at 915. Instead, the Court held that the Constitution 

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permits Congress to regulate even communications that contain no words of electoral advocacy. 

Id. at 914-16.20 

As the Fourth Circuit recently held, if mandatory disclosure requirements are permissible 

in each of these contexts, including “when applied to ads that merely mention a federal 

candidate, then applying the same burden to ads that go further and are the functional equivalent 

of express advocacy cannot automatically be impermissible.” RTAA, 681 F.3d at 552. Courts in 

at least four other circuits have reached similar conclusions. See McKee, 649 F.3d at 54-55 (1st 

Cir.) (“[I]t [is] reasonably clear, in light of Citizens United, that the distinction between issue 

discussion and express advocacy has no place in First Amendment review of these sorts of 

disclosure-oriented laws.”); Brumsickle, 624 F.3d at 1016 (9th Cir.) (“Given the Court’s analysis 

in Citizens United and its holding that the government may impose disclosure requirements on 

speech, the position that disclosure requirements cannot constitutionally reach issue advocacy is 

unsupportable.”); VRLC, 2012 WL 2370445, at *7 (D. Vt.) (“The Citizens United court made 

clear that the power to require disclosure extends beyond the power to limit speech” and it “went 

further toward solidifying this principle, explicitly endorsing a system of relatively unrestricted 

political speech paired with ‘effective disclosure’”) (quoting Citizens United, 130 S. Ct. at 915-

                                                           

20 That holding is of a piece with the Supreme Court’s long history of applying intermediate 

scrutiny and upholding disclosure requirements for issue advocacy. Decades before Citizens 

United, the Supreme Court had upheld the constitutionality of lobbying disclosure laws that 

“merely provided for a modicum of information from those who for hire attempt to influence 

legislation or who collect or spend funds for that purpose.” United States v. Harriss, 347 U.S. 

612, 625 (1954). Later in First National Bank of Boston v. Bellotti, the Court, while striking 

down spending restrictions on ballot measures, noted that “[i]dentification of the source of 

advertising may be required as a means of disclosure, so that the people will be able to evaluate 

the arguments to which they are being subjected.” 435 U.S. 765, 792 n.32 (1978). And just two 

years ago the Court held that a state’s interest in preserving the integrity of the electoral process 

is sufficient to justify a requirement that individuals who sign petitions to place referenda on 

state ballots disclose their names and addresses. Reed, 130 S. Ct. at 2819-22. In light of these 

decisions and Citizens United’s endorsement of “[a] campaign finance system that pairs 

corporate independent expenditures with effective disclosure,” 130 S. Ct. at 916 (emphasis 

added), plaintiff’s qualified concession (Pl. Mem. at 30) — that “the Supreme Court affirmed 

disclosure in the Citizens United case, but that ruling only concerned electioneering 

communications” — is insufficient and inaccurate. 

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16); Yamada v. Weaver, No. 10-00497, 2012 WL 983559, at *17 (D. Haw. Mar. 21, 2012) 

(quoting Brumsickle, 624 F.3d at 1016); Ctr. for Individual Freedom v. Madigan, 735 F. Supp. 

2d 994, 1000 (N.D. Ill. 2010) (“Recently, in Citizens United, the Supreme Court expressly 

rejected the contention that election-law disclosure requirements are limited to express advocacy 

or its functional equivalent.”) (citing Citizens United, 130 S. Ct. at 915). 

Thus, requiring disclosure of communications that meet section 100.22(b)’s definition of 

“expressly advocating” is plainly constitutional. 

3. Plaintiff’s Remaining Objections to Section 100.22(b) Lack Merit 

a. The lower court decisions upon which plaintiff relies have been 

rendered inapposite in the wake of more recent Supreme Court 

decisions 

Although plaintiff notes that more than ten years ago a few lower courts in other circuits 

found section 100.22(b) to be invalid (Pl. Mem. at 8, 43, 45), those decisions are of no 

consequence now. First, the decisions all predated the Supreme Court’s recognition, in 

McConnell, WRTL, and Citizens United, that the regulation of “the functional equivalent” of 

express advocacy is permissible.21 Citizens United, 130 S. Ct. at 890; WRTL, 551 U.S. at 470; 

McConnell, 540 U.S. at 193, 206. Second, those earlier cases were predicated on the regulation’s 

function as a speech ban — a function it no longer serves — so they had no occasion to consider 

the constitutionality of section 100.22(b) as it serves today to implement disclosure requirements. 

Cf. Reed, 130 S. Ct. at 2837 (Scalia, J., concurring) (“Requiring people to stand up in public for 

their political acts fosters civic courage, without which democracy is doomed.”). Third, the 

decisions in those cases preceded the Supreme Court’s holding in Citizens United that disclosure 

                                                           

21 As Justice Thomas observed in his dissent in McConnell, the majority opinion in that 

case “overturned” all of the courts of appeals decisions that had interpreted Buckley as limiting 

government regulation to a wooden magic-words formula. McConnell, 540 U.S. at 278 n.11 

(Thomas, J., dissenting) (collecting cases). Justice Thomas went on to note that the only express 

advocacy decision that McConnell did not cast into doubt was FEC v. Furgatch, 807 F.2d 857 

(9th Cir. 1987), the case from which the Commission derived the test codified at section 

100.22(b). See 60 Fed. Reg. at 35,292-95 (“[S]ection 100.22(b) . . . incorporate[s] . . . the 

Furgatch interpretation . . . .”). 

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requirements are constitutional not only for communications that are the functional equivalent of 

express advocacy, but even for communications that “only pertain to a commercial transaction, 

[because] the public has an interest in knowing who is speaking about a candidate shortly before 

an election.” 130 S. Ct. at 915-16. 

In recognition of these recent legal developments, the Fourth Circuit in RTAA overruled 

its own earlier conclusion in Virginia Society for Human Life, Inc. v. FEC, 263 F.3d 379 (4th 

Cir. 2001) (“VSHL”), “that § 100.22(b) was unconstitutional because it ‘shift[ed] the 

determination of what is express advocacy away from the words in and of themselves to the 

unpredictability of audience interpretation.’” RTAA, 681 F.3d at 550 n.2 (quoting VSHL, 263 

F.3d at 392). The Fourth Circuit explained that its earlier “conclusion can no longer stand, in 

light of McConnell and [WRTL].” Id.

Similarly, the First Circuit recently held “in light of Citizens United, that the distinction 

between issue discussion and express advocacy has no place in First Amendment review of these 

sorts of disclosure-oriented laws.” McKee, 649 F.3d at 54-55. In a “case [that] does not involve 

a limit on independent expenditures, the relevance of these [earlier] cases is limited at best.” Id.

at 54. “[M]ore fundamentally, the Supreme Court has explicitly rejected an attempt to ‘import 

[the] distinction’ between issue and express advocacy into the consideration of disclosure 

requirements.” Id. (emphasis added) (quoting Citizens United, 130 S. Ct. at 915). Although the 

First Circuit did not explicitly address the continued validity of its earlier decision in Maine 

Right to Life Comm. v. FEC, 98 F.3d 1 (1st Cir. 1996) (“MRLC”), upon which plaintiff relies (Pl. 

Mem. at 8, 43), McKee makes clear that the premise underlying MRLC affirmed no longer holds. 

The district court decision affirmed on appeal had noted that it was addressing a “prohibition” on 

corporate spending for express advocacy, and in that context the court cited the Supreme Court’s 

primary “concern[] not to permit intrusion upon ‘issue’ advocacy.” Maine Right to Life Comm. 

v. FEC, 914 F. Supp. 8, 10, 12 (D. Maine 1996). In light of McKee and Citizens United, the 

relevance of MRLC — which was premised on a concern about “permit[ting] a speaker or writer 

Case 2:12-cv-00127-SWS Document 26 Filed 08/10/12 Page 38 of 58
29 

to know from the outset exactly what is permitted and what is prohibited,” 914 F. Supp. at 12 

(emphasis added) — “is limited at best.” McKee, 649 F.3d at 54.22 

b. Plaintiff misunderstands the Commission’s enforcement process

Plaintiff’s entire “heckler’s veto” argument (Pl. Mem. at 21) rests on a fundamental 

misunderstanding of the Commission’s enforcement process. Contrary to plaintiff’s mistaken 

claim (id. at 20), FECA explicitly precludes a general private right of action to enforce violations 

of its provisions. See 2 U.S.C. § 437d(e) (“Except as provided in section 437g(a)(8) of this title, 

the power of the Commission to initiate civil actions under subsection (a)(6) of this section shall 

be the exclusive civil remedy for the enforcement of the provisions of this Act.”) (emphasis 

added). Any person who believes that FECA has been violated may file with the Commission an 

administrative complaint regarding that violation. 2 U.S.C. § 437g(a)(1). The Commission then 

considers the complaint to determine whether it provides “reason to believe” that FECA has been 

violated. Id. § 437g(a)(2). If at least four Commissioners vote to find such reason to believe, the 

Commission may investigate the alleged violation; otherwise, the Commission dismisses the 

administrative complaint. See id. When the Commission dismisses a complaint, the complainant 

may file suit in the United States District Court for the District of Columbia against the 

Commission seeking a declaration that the Commission’s dismissal was “contrary to law.” Id. 

§ 437g(a)(8).23 If the district court declares that the dismissal was contrary to law, the court can 

                                                           

22 Also of limited relevance, in addition to being of no precedential value, is Right to Life of 

Dutchess Co. Inc. v. FEC, 6 F. Supp. 2d 248 (S.D.N.Y. 1998) (“RLDC”). (See Pl. Mem. at 8, 

43.) That decision predates McConnell, WRTL, and Citizens United, and its conclusion that 

Buckley imposed a constitutional “bright-line requirement of ‘express’ or ‘explicit’ words of 

advocacy of election or defeat of a candidate,” RLDC, 6 F. Supp. 2d at 253-54, was undermined 

by McConnell, which held that Buckley’s “express advocacy limitation, in both the expenditure 

and the disclosure contexts, was the product of statutory interpretation, rather than a 

constitutional command.” McConnell, 540 U.S. at 191-92, 194-99. See supra p. 24. 

23 Establishing that such a dismissal was “contrary to law” is not “easy,” as plaintiff 

assumes. (Pl. Mem. at 20.) The Commission’s dismissal of an administrative complaint cannot 

be disturbed unless it is based on “an impermissible interpretation of [FECA]” or is “arbitrary or 

capricious, or an abuse of discretion.” Orloski v. FEC, 795 F.2d 156, 161 (D.C. Cir. 1986); see 

FEC v. Democratic Senatorial Campaign Comm., 454 U.S. 27, 31 (1981) (“DSCC”). To affirm 

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30 

“direct the Commission to conform with such declaration within 30 days.” Id. § 437g(a)(8)(C). 

Only if the Commission then fails to conform to the court’s declaration may the complainant 

bring a civil action to remedy the alleged violation. Id. 

Plaintiff’s description of the Commission enforcement process as a system “where 

opponents and those who do not understand the speech in controversy may suppress it” is just 

wrong. (Pl. Mem. at 21.) Setting aside plaintiff’s rhetoric of speech “suppress[ion],” FECA’s 

explicit preclusion of the private right of action Free Speech imagines was designed to prevent 

the very evil plaintiff complains about: No formal investigation can take place until at least four 

Commissioners agree that there is “reason to believe” a violation has occurred. 2 U.S.C. 

§ 437g(a)(2). Plaintiff’s extended allegations (see Pl. Mem. at 21-22) regarding a complaint 

against another group, its speculation about “a likely investigation into [the other group’s] 

affairs,” and its unsupported characterization of what “is enough to get speakers in trouble” all 

demonstrate plaintiff’s fundamental misunderstanding of the Commission’s enforcement process 

and fail to identify any flaws in section 100.22(b) or the Commission’s actual application of it. 

c. There is no “sordid” history of enforcement of section 100.22(b) 

Plaintiff argues that the Commission has a “sordid” history of enforcing section 

100.22(b), but fails to offer specific facts or legitimate arguments in support of this claim. 

Plaintiff cites various matters under review (“MURs”) in which the Commission supposedly 

“found express advocacy under Section 100.22(b)” or which otherwise “detail[] the reach of 

Section 100.22(b).” (Pl. Mem. at 14-15, 18 n.9.) But six of those MURs were closed without a 

Commission finding that there was even reason to believe any violation premised on express 

advocacy had occurred, i.e., before any formal investigation could have begun.24 

                                                                                                                                                                                               

the agency’s action, “it is not necessary for a court to find that the agency’s construction was the 

only reasonable one or even the reading the court would have reached if the question initially had 

arisen in a judicial proceeding.” DSCC, 454 U.S. at 39. 

24 See In the Matter of Economic Freedom Fund, et al., MUR 5842, Certification (Apr. 16, 

2009), available at http://eqs.nictusa.com/eqsdocsMUR/29044240853.pdf; In the Matter of 

Patriot Majority, et al., MUR 6073, Certification (Apr. 3, 2009), available at

http://eqs.nictusa.com/eqsdocsMUR/29044234187.pdf; In the Matter of American Future Fund, 

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Plaintiff’s characterizations of out-of-context snippets of statements from unspecified 

documents in unspecified MURs fail to identify any specific flaws in any particular MURs. 

(See, e.g., Pl. Mem. at 14 (claiming Commission or its staff “found express advocacy under 

Section 100.22(b) when an advertisement or communication ‘lacked legislative focus’ or did not 

sufficiently urge a candidate to take a specific action”).)25 Such out-of-context excerpts do not 

demonstrate any deficiency in section 100.22(b) or the Commission’s actual interpretation and 

application of the regulation.26 

                                                                                                                                                                                               

MUR 5988, Amended Certification (Mar. 17, 2009), available at 

http://eqs.nictusa.com/eqsdocsMUR/29044232280.pdf; In the Matter of Americans for Job 

Security, Inc., et al., MURs 5694 & 5910, Certification (Feb. 27, 2009), available at 

http://eqs.nictusa.com/eqsdocsMUR/29044232232.pdf; In the Matter of Gun Owners of Amer., 

Inc., et al., MURs 5874 & 5875, Certification (Oct. 10, 2007), available at 

http://eqs.nictusa.com/eqsdocsMUR/000067A7.pdf. MUR 5024R and MUR 5634 (which 

plaintiff mistakenly cited as MUR 5631) were both resolved through the Commission’s 

conciliation process. See 2 U.S.C. § 437g(a)(4) (outlining Commission conciliation process); In 

the Matter of Council for Responsible Gov’t, et al., MUR 5024R, Conciliation Agreement (Nov. 

17, 2005), available at http://eqs.nictusa.com/eqsdocs MUR/00004C5F.pdf; In the Matter of 

Sierra Club, Inc., MUR 5634, Conciliation Agreement (Nov. 15, 2006), available at

http://eqs.nictusa.com/eqsdocsMUR/00005815.pdf. 

25 Even when plaintiff actually identifies specific documents, its argument fares no better. 

None of the MURs cited in footnote 9 of plaintiff’s Memorandum (Pl. Mem. at 18 n.9) “detail[] 

the reach of Section 100.22(b).” And predecisional statements by “the Commission’s lawyers” 

(Pl. Mem. at 14) or an individual Commissioner (id. at 18 n.9) that have not been adopted by a 

majority of the Commission do not constitute an official Commission interpretation. See, e.g., 

Ad Hoc Metals Coalition v. Whitman, 227 F. Supp. 2d 134, 143 (D.D.C. 2002) (explaining that 

judicial review is not based on predecisional process); Serono Labs., Inc. v. Shalala, 158 F.3d 

1313, 1321 (D.C. Cir. 1998) (“Chevron deference is owed to the decisionmaker authorized to 

speak on behalf of the agency, not to each individual agency employee . . . .”); Deukmejian v. 

Nuclear Regulatory Comm’n, 751 F.2d 1287, 1327 (D.C. Cir. 1984) (observing that NRC 

majority is not “required to accept the advice of some members of their legal and technical 

staff”), aff’d in relevant part sub. nom., San Luis Obispo Mothers for Peace v. U.S. Nuclear 

Regulatory Comm’n, 789 F.2d 26 (D.C Cir. 1986) (en banc). 

26 Moreover, it is simply not true that the regulation “[o]n its face . . . may regulate issue 

advocacy if an ‘external event’ proves significant to the Commission” or “if the speech is close 

to an election or if the communication discusses issues deemed too ‘electoral’ during an electoral 

season” (Pl. Mem. at 17); nor is the regulation a “speech test tied to public perception or the 

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32 

More fundamentally, plaintiff’s implicit legal arguments are undermined by Citizens 

United and WRTL. For example, plaintiff criticizes consideration of whether a communication 

“address[es] the character, qualifications or fitness of a candidate for office” without explaining 

why such a consideration is constitutionally flawed. (Pl. Mem. at 14-15.) The Supreme Court 

itself explicitly identified such factors as “indicial of express advocacy,” WRTL, 551 U.S. at 470, 

and in Citizens United concluded that a movie was the functional equivalent of express advocacy 

because it “would be understood by most viewers as an extended criticism of Senator [Hillary] 

Clinton’s character and her fitness for the office of the Presidency,” 130 S. Ct. at 889-90. 

In sum, plaintiff fails to demonstrate any constitutional flaw in section 100.22(b), 

including in the Commission’s interpretation and application of the regulation. The regulation is 

neither vague nor overbroad, and it is consistent with the “functional equivalent” test that the 

Supreme Court articulated in WRTL and applied in Citizens United. 

C. The Commission’s Method of Determining Political Committee Status and 

the Registration and Disclosure Requirements for PACs Are Constitutional 

As explained supra p. 5, a “political committee” includes any organization that receives 

more than $1,000 in contributions or more makes more than $1,000 in expenditures, 2 U.S.C. 

§ 431(4)(A), and is “under the control of a candidate” or has as its “major purpose” “the 

nomination or election of a candidate,” Buckley, 424 U.S. at 79; see also McConnell, 540 U.S. 

at 170 n.64. Under this construction of “political committee,” FECA’s organizational and 

disclosure requirements for political committees “directly serve substantial government 

interests.” Buckley, 424 U.S. at 68. Such requirements further the “public . . . interest in 

knowing who is speaking about a candidate and who is funding that speech”; they also “deter[] 

and help[] expose violations of other campaign finance restrictions, such as those barring 

contributions from foreign corporations and individuals.” SpeechNow, 599 F.3d at 698; see 

Brumsickle, 624 F.3d at 1013. 

                                                                                                                                                                                               

government’s perception about the intent, import or effect of speech” (id. at 26). These are just 

two examples of plaintiff’s many inaccurate statements concerning the Commission’s application 

of section 100.22(b). 

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1. The Commission’s Method for Determining a Group’s Major Purpose 

Is Constitutional 

 The Commission’s case-by-case approach to determining political committee status has 

been upheld by the courts. RTAA, 681 F.3d at 556; Shays, 511 F. Supp. 2d at 29-31.27 Indeed, 

Free Speech concedes that that it is “undoubtedly true that in conducting the major purpose 

analysis, fact-intensive inquiries are often appropriate” (Pl. Mem. at 33, 35). 

For decades, the Commission has determined on a case-by-case basis whether an 

organization is a political committee, including whether its major purpose is the nomination or 

election of candidates. See 72 Fed. Reg. at 5,596. The Commission’s Political Committee Status 

Supplemental Explanation and Justification (“PAC-Status Supplemental E&J”) describes the 

Commission’s policy for making such determinations. See generally 72 Fed. Reg. 5,595 passim. 

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

organization has met the statutory criteria for political committee status, either by making more 

than $1,000 in expenditures or receiving more than $1,000 in contributions. See id. at 5,603-04; 

2 U.S.C. § 431(4)(A). To apply the major purpose test, the Commission has consulted sources 

such as the group’s public statements, fundraising appeals, government filings (e.g., IRS 

notices), charters, and bylaws. See id. at 5,601, 5,605 (describing sources). Because no two 

groups are exactly alike, the Commission’s analysis has frequently turned on a group’s specific 

activities, such as spending on a particular election or issue-advocacy campaign. See id. at 

5,601-02, 5,605. 

The Commission decided in 2007 not to promulgate a per se rule classifying section 527 

organizations like Free Speech as political committees. See 26 U.S.C. § 527. Instead of creating 

categorical regulations that might have led to overbroad or underinclusive PAC determinations, 

see 72 Fed. Reg. at 5,598-5,601 (analyzing differences between political organizations under tax 

law and PACs under FECA), the Commission, in an exercise of discretion, decided to continue 

its practice of implementing the major purpose test on a case-by-case basis. See id. at 

                                                           

27 Although Buckley created the major purpose test, it “did not mandate a particular 

methodology for determining an organization’s major purpose.” RTAA, 681 F.3d at 556. 

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5,595-5,602. The Commission’s PAC-Status Supplemental E&J “discusse[d] several recently 

resolved administrative matters that provide[d] considerable guidance to all organizations 

regarding . . . political committee status.” Id. at 5,595; see id. at 5,601-5,606 (discussing 

matters). 

 The MURs plaintiff cites (Pl. Mem. at 33-34) are consistent with this approach, which 

courts have endorsed.28 The Commission’s specific decision to make PAC-status determinations 

on a case-by-case basis was challenged and upheld in Shays, 511 F. Supp. 2d at 29-31. And the 

Fourth Circuit in RTAA concluded that the Commission’s approach to determining an 

organization’s major purpose is “sensible, . . . consistent with Supreme Court precedent,” and, 

most importantly, “constitutional.” RTAA, 681 F.3d at 558. Plaintiff does not even address 

RTAA’s analysis on this issue. 

 As the Fourth Circuit recognized, the “determination of whether the election or defeat of 

federal candidates for office is the major purpose of an organization, and not simply a major 

purpose, is inherently a comparative task, and in most instances it will require weighing the 

importance of some of a group’s activities against others.” RTAA, 681 F.3d at 556. And “[t]he 

necessity of a contextual inquiry is supported by judicial decisions applying the major purpose 

test, which have used the same fact-intensive analysis that the Commission has adopted.” Id.

at 557 (collecting cases). Indeed, courts not only have endorsed the Commission’s examination 

of these factors, they have relied on the very same factors to make their own major purpose 

determinations. Koerber v. FEC, 583 F. Supp. 2d 740, 748 (E.D.N.C. 2008) (denying 

preliminary relief in challenge to Commission’s approach to determining PAC status, and noting 

                                                           

28 Notably, half of plaintiff’s examples of the Commission’s supposed “vague and 

overbroad approach to determining the major purpose of an organization” are matters in which 

the Commission failed to find that a group met the major purpose test. See MUR 5988, 

Amended Certification (Mar. 17, 2009); MURs 5694 & 5910, Certification (Feb. 27, 2009); see 

supra p. 30 n.24. In plaintiff’s other examples (see Pl. Mem. at 34), MUR 5753 and MUR 5754, 

“the Commission conducted a thorough investigation of all aspects of the organization’s 

statements and activities to determine first if the organization exceeded the $1,000 statutory and 

regulatory threshold for expenditures or contributions . . . and then whether the organization’s 

major purpose was Federal campaign activity.” 72 Fed. Reg. at 5,603-04. 

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35 

that “an organization’s ‘major purpose’ is inherently comparative and necessarily requires an 

understanding of an organization’s overall activities, as opposed to its stated purpose”); FEC v. 

Malenick, 310 F. Supp. 2d 230, 234-37 (D.D.C. 2004) (considering organization’s statements in 

brochures and “fax alerts” sent to potential and actual contributors, as well as its spending 

influencing federal elections); FEC v. GOPAC, Inc., 917 F. Supp. 851, 859 (D.D.C. 1996) (“The 

organization’s purpose may be evidenced by its public statements of its purpose or by other 

means, such as its expenditures in cash or in kind to or for the benefit of a particular candidate or 

candidates.”); id. at 864, 866 (description of organizations’ meetings attended by national 

leaders; references to organization’s “Political Strategy Campaign Plan and Budget”).29 

 The Commission’s approach, moreover, is consistent with the law in this Circuit. The 

state campaign finance law at issue in Coffman, unlike the law here, defined a group as a 

political committee without any consideration of its major purpose; instead, “any group that 

spen[t] more than $200 a year to support or oppose the nomination or election of one or more 

candidates” was deemed a political committee. 498 F.3d at 1153. In describing the major 

purpose requirement, the Tenth Circuit cited the Supreme Court’s endorsement of “two methods 

to determine an organization’s ‘major purpose’: (1) examination of the organization’s central 

organizational purpose; or (2) comparison of the organization’s independent [express advocacy] 

spending with overall spending.” Id. at 1152. The Commission applies the major purpose test 

by examining an “organization’s central organizational purpose”; its approach is thus entirely 

consistent with the Tenth Circuit’s understanding of the major purpose test. See id.; Herrera, 

611 F.3d at 677-78 (citing Coffman’s “two methods” for analyzing an organization’s “major 

purpose” and determining organization’s purpose by “comprehensive examination of its 

activities”). 

                                                           

29 GOPAC does not, as plaintiff suggests (Pl. Mem. at 34), undermine the Commission’s 

general application of the major purpose test. The court itself undertook a highly fact-intensive 

inquiry to determine GOPAC’s major purpose, see 917 F. Supp. at 853-58, but ultimately 

concluded that the organization did not have as its major purpose the election of federal 

candidates, id. at 862-66. 

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Finally, plaintiff relies on Citizens United’s rejection of “‘case-by-case determinations to 

verify whether political speech is banned’” to argue that case-by-case analyses are impermissible 

in determining political committee status. (Pl. Mem. at 32 (quoting Citizens United, 130 S. Ct. 

at 892) (emphasis added).) But this argument ignores the Court’s express refusal to import its 

holding regarding prohibitions on independent expenditures into its analysis of disclosure 

requirements. Citizens United, 130 S. Ct. at 876. 

2. The Consequences of Political Committee Status Are Constitutional 

Organizational and Disclosure Obligations 

The primary obligation of PACs that make no candidate contributions is disclosure, 

which is not much more burdensome than the reporting requirements the Supreme Court upheld 

in Citizens United. Indeed, relying upon Citizens United, the D.C. Circuit upheld the 

organizational and reporting requirements for independent expenditure-only “super PACs,” 

noting that the additional reporting requirements “are minimal” and the organizational 

requirements do not “impose much of an additional burden” compared to independentexpenditure reporting. See SpeechNow, 599 F.3d at 697-98 (emphasis added); see also RTAA, 

681 F.3d 558 (describing PAC status as entailing “‘minimal’ reporting and organizational 

obligations”) (citing SpeechNow, 599 F.3d at 697-98). In light of Citizens United’s upholding of 

disclosure requirements for entities whose major purpose is not campaign activity, plaintiff’s 

generalized arguments about the burdens of PAC status is unsustainable.30

                                                           

30 Plaintiff has not produced any evidence or even alleged specific facts demonstrating that 

complying with the PAC registration and reporting requirements would be unduly burdensome 

for plaintiff, i.e., that the PAC requirement as applied to Free Speech is unconstitutional. See 

Tooker, 795 F. Supp. 2d at 862 n.16 (noting plaintiff’s failure to distinguish its as-applied 

challenge from its facial challenge, including its failure to explain how the challenged disclosure 

requirements “‘impinge[] upon its associational freedoms’”) (citing Brumsickle, 624 F.3d at 

1021-22). It is unclear, therefore, why plaintiff invokes (Pl. Mem. at 29) Buckley’s discussion of 

NAACP v. Alabama, 357 U.S. 449 (1958), in which the Court distinguished the facts in Buckley 

from the NAACP’s “uncontroverted showing” of the harms it had suffered from past disclosures 

of its members, which included “economic reprisal, loss of employment, threat of physical 

coercion, and other manifestations of public hostility.” Buckley, 424 U.S. at 69 (discussing 

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While it is true that Citizens United and MCFL described speaking through a corporate 

PAC as a burdensome alternative to speaking directly with corporate treasury funds, that context 

was “significantly different from the one facing [Free Speech].” RTAA, 681 F.3d at 549; see 

Tooker, 795 F. Supp. 2d at 863 (distinguishing the “statutes that prohibited corporations and 

unions from using their general treasury funds to make certain independent expenditures” at 

issue in Citizens United and MCFL from a case challenging “provisions [that] do not ban any 

independent expenditures”). As the Fourth Circuit explained in response to an argument similar 

to plaintiff’s: 

The regulation invalidated in Citizens United required corporations to set 

up a separate PAC with segregated funds before making any direct 

political speech. These corporate PACs were subject to several limitations 

on allowable contributions, including a prohibition on the acceptance of 

funds from the corporation itself. The Court accordingly held that the 

option to create a separate corporate PAC did not alleviate the burden 

imposed by § 441b on the corporation’s own speech. In contrast, the PAC 

disclosure requirements at issue here neither prevent Real Truth from 

speaking nor “impose [a] ceiling on campaign-related activities.” 

RTAA, 681 F.3d at 549 (internal citations omitted); see MCFL, 479 U.S. at 253 (“Because it is 

incorporated, . . . MCFL must establish a ‘separate segregated fund’ if it wishes to engage in any 

independent spending whatsoever.”). 

In light of this distinction, “[m]any decisions since Citizens United have analyzed various 

definitions of a ‘political committee,’ which include the burdens associated with such 

classification, and considered them to be ‘disclosure requirements.’” Yamada, 2012 WL 983559, 

at *20 (collecting cases and noting, “[t]his makes sense — the purpose of requiring registration 

as a noncandidate committee is transparency and to enable disclosure”). Among those decisions 

is the Tenth Circuit’s opinion in Herrera, in which the court observed that regulations classifying 

                                                                                                                                                                                               

NAACP, 357 U.S. at 462). NAACP lends no support to Free Speech’s generalized arguments for 

avoiding disclosure here. 

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groups as political committees “require disclosure, thus distinguishing them from regulations that 

limit the amount of speech a group may undertake.” 611 F.3d at 675-76.31

D. The Commission’s Solicitation Standard Is Constitutional 

FECA authorizes the Commission to regulate “contributions” but does not specify the 

circumstances under which proceeds from a solicitation will be considered contributions. Free 

Speech and the Commission agree that the Second Circuit’s test for defining “solicitation” is the 

proper standard for determining whether a request for funds seeks a “contribution” under FECA. 

See FEC v. Survival Educ. Fund, Inc., 65 F.3d 285 (2d Cir. 1995) (“SEF”); Pl. Mem. at 35-36 

(invoking SEF standard for solicitations); Free Speech AO at 9 (referencing standard from SEF). 

In SEF, the Second Circuit held that “[e]ven if a communication does not itself constitute 

express advocacy, it may still fall within the reach of § 441d(a) if it contains solicitations clearly 

indicating that the contributions will be targeted to the election or defeat of a clearly identified 

candidate for federal office.” 65 F.3d at 295. The court analyzed a solicitation that was mailed 

to nearly 31,000 members of the general public between July 23 and 27, 1984, and stated that 

“‘your special election-year contribution today will help us communicate your views to hundreds 

of thousands of members of the voting public, letting them know why Ronald Reagan and his 

anti-people policies must be stopped.’” Id. at 288-89, 295. The Second Circuit concluded that 

this solicitation left “no doubt that that the funds contributed would be used to advocate 

President Reagan’s defeat at the polls, [and] not simply to criticize his policies during the 

election year,” and it was thus properly subject to FECA’s disclosure and disclaimer 

requirements for solicitations for contributions. Id. at 295. 

                                                           

31 See also, e.g., McKee, 649 F.3d at 54 n.29 (“Maine’s requirement that non-major-purpose 

PACs register with the Commission is . . . first and foremost a disclosure provision.”); 

Brumsickle, 624 F.3d at 1012 (concluding that “the definition of ‘political committee’ does not 

violate the First Amendment”; analyzing “the disclosure requirements attached to political 

committee status”); Madigan, 735 F. Supp. 2d at 1000 (comparing “registration requirements, 

including related reporting, recordkeeping, and disclosure requirements” with “election-law 

disclosure requirements” upheld in Citizens United). 

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39 

 Draft B reasonably applies the SEF standard for “solicitations” in concluding that two 

of plaintiff’s proposed donation requests are solicitations for contributions. First, Draft B 

concludes that the “War Chest” Donation Request is a solicitation under the SEF standard 

because its statements that “‘[d]onations given to Free Speech are funds spent on beating back 

the Obama agenda’ and ‘against his $1 billion war chest,’ and that Free Speech can use 

donations most effectively ‘this coming fall’” collectively “make plain that funds received in 

response to the request will be used to advocate the electoral defeat of President Obama ‘this 

coming fall.’” (Draft B at 18 (quoting “War Chest” Donation Request).) 

Second, Draft B concludes that the “Make Them Listen” Donation Request is a 

solicitation because its statement “‘Let’s win big this fall. Donate to Free Speech today,’ and 

criticiz[ism] [of] ‘President Obama and his pals in Congress’ who didn’t get the message’ after 

the 2010 electoral victories of ‘the Tea Party movement’ . . . make plain that funds received in 

response to the request will be used to advocate the defeat of President Obama and to ‘win big 

this fall.’” (Id. at 20 (quoting “Make Them Listen” Donation Request).) 

Plaintiff fails to identify any flaw in Draft B’s analysis or conclusions regarding 

plaintiff’s donation requests; its limited discussion of these requests is based on erroneous 

descriptions of Draft B’s conclusions. (See Pl. Mem. at 36.) Contrary to plaintiff’s assertion, 

Draft B did not conclude that use of the terms “war chest,” “win big this fall,” or “references to 

this ‘coming fall,” in the abstract, are “clearly campaign references,” nor did it conclude that 

mere inclusion of a campaign reference triggers regulation. (Id.) 

Moreover, plaintiff does not even attempt to demonstrate how the Commission’s 

solicitation standard hinders its “ability to raise funds to support” its advocacy, and the cases it 

cites concerning the right to fundraise are therefore inapposite. (Pl. Mem. at 37.) Plaintiff is free 

to spend unlimited funds on its solicitations and to solicit unlimited funds for its express 

advocacy. See supra pp. 6 & n.4, 9. The disclaimers required for solicitations for contributions 

are substantially related to the government’s interest in disclosure. As Citizens United explained, 

in the context of electioneering communications that need not be targeted to the election or 

defeat of a federal candidate, “[a]t the very least, the disclaimers avoid confusion by making 

Case 2:12-cv-00127-SWS Document 26 Filed 08/10/12 Page 49 of 58
40 

clear that the [communications] are not funded by a candidate or political party.” 130 S. Ct. at 

915. The Second Circuit in SEF similarly recognized that the disclosure requirements for 

solicitations “serve[] important First Amendment values. Potential contributors are entitled to 

know that they are supporting independent critics of a candidate and not a group that may be in 

league with that candidate’s opponent.” 65 F.3d at 296. Disclosure is “‘a reasonable and 

minimally restrictive method’ of ensuring open electoral competition that does not unduly trench 

upon [individuals’] First Amendment rights.” Id. (quoting Buckley, 424 U.S. at 82).32

                                                           

32 Free Speech misconstrues the note in Draft B stating that the decision in EMILY’s List v. 

FEC, 581 F.3d 1 (D.C. Cir. 2009), has not undermined the Commission’s application of the SEF

standard. (See Pl. Mem. at 35-36.) Unlike SEF, EMILY’s List involved a challenge to 

Commission regulations governing how certain “mixed” federal and nonfederal activity (such as 

a voter registration drive) could be financed, and whether funds solicited in certain ways would 

be considered federal, rather than nonfederal, contributions. The regulation addressing 

solicitations, 11 C.F.R. § 100.57, had been promulgated as part of the Commission’s effort to 

“significantly curb[] the raising and spending of non-Federal funds in connection with Federal 

elections,” 72 Fed. Reg. 5,595, 5,602 (Feb. 7. 2007). Section 100.57 treated as “hard-money 

‘contributions’” “all funds given in response to solicitations indicating that ‘any portion’ of the 

funds received will be used to support or oppose the election of a federal candidate” — even if 

the solicitations also stated that some portion of the money would be used for non-federal

elections. EMILY’s List, 581 F.3d at 21 (emphases added). The D.C. Circuit held that the 

“statutory defect in the rule is that, depending on the particular solicitation at issue, it requires 

covered non-profits to treat as hard money certain donations that are not actually made ‘for the 

purpose of influencing’ federal elections.” Id. 

No Commissioner has indicated that section 100.57 “still lives on” or has been 

“resurrect[ed].” (Pl. Mem. at 36, 37.) To the contrary, the Commission has announced that until 

it adopts a final rule regarding the removal of section 100.57, that provision “will not be 

enforced.” Press Release, FEC Statement on the D.C. Circuit Court of Appeals Decision in 

EMILY’s List v. FEC, http://www.fec.gov/press/press2010/20100112EmilyList.shtml (Jan. 12, 

2010). Draft B merely notes that the basis for the regulation’s invalidation in EMILY’s List was 

the way the regulation treated too many funds as federal instead of nonfederal, not that it too 

expansively treated donations as given for the purpose of supporting or opposing candidates. 

Thus, EMILY’s List did not undermine SEF’s general premise “that a solicitation that indicates 

that donated funds will be used to support or oppose the election of a clearly identified federal 

candidate results in ‘contributions.’” (Draft B at 17-18 n.6.) Indeed, that premise was not 

discussed in EMILY’s List, and plaintiff fails to offer any legal basis for challenging it here. 

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In sum, Free Speech fails to demonstrate any constitutional flaw in the Commission’s 

approach to determining whether a communication is a solicitation for contributions. 

E. Plaintiff Fails to Identify Any “Prior Restraint” On Speech 

Plaintiff utterly fails to demonstrate how any of the challenged provisions, none of which 

imposes any restrictions on plaintiff’s speech, functions as a “prior restraint” on such speech. 

(Pl. Mem. at 37.) Free Speech is free to run its ads. 

Although Citizens United described requirements that actually prohibit speech as “the 

equivalent of prior restraint,” 130 S. Ct. at 896, nothing in that decision suggests that FECA’s 

disclosure requirements function that way. Again, plaintiff ignores the Court’s refusal to 

“import” its analysis regarding restrictions on independent expenditures into the separate context 

of disclosure requirements. Citizens United, 130 S. Ct. at 915; see supra pp. 28, 36. Because 

neither section 100.22(b) nor the Commission’s policy regarding political committee status 

imposes a restraint on speech — let alone a prior restraint — plaintiff’s entire discussion of the 

law of “prior restraint” is misplaced. (See Pl. Mem. at 37-39.) 

III. PLAINTIFF FAILS TO DEMONSTRATE IRREPARABLE HARM 

As demonstrated above, the provisions challenged here do not limit plaintiff’s speech. 

The only actual harms alleged here are the administrative burdens associated with registration 

and disclosure. (Amend. Compl. ¶ 6 (alleging that challenged provisions “prohibit Free Speech 

from engaging in protected issue advocacy without complying with burdensome registration, 

reporting and disclaimer requirements”).) Because plaintiff has not suffered any “loss of First 

Amendment freedoms,” Elrod v. Burns, 427 U.S. 347, 373 (1976), the presumption of 

irreparable harm from a law that “deprives” speech rights is inapplicable. Utah Licensed 

Beverage Ass’n v. Leavitt, 256 F.3d 1061, 1076 (10th Cir. 2001). And plaintiff has failed to 

identify any irreparable harm that would result from compliance with the Act’s disclosure, 

reporting, and registration requirements. (See, e.g., Amend. Compl. ¶¶ 6, 43 (complaining of 

burden of “having to expend time and money complying with FEC registration, reporting and 

disclaimer requirements”).) 

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42 

Proof of irreparable harm would require evidence of burdensome reprisals against its 

members, see Citizens United, 130 S. Ct. at 914, but as discussed supra p. 36 n.30, Free Speech 

has alleged no such harm. Serious harm of this kind has been demonstrated only in cases 

involving organizations, such as the NAACP and the Socialist Workers Party, whose members 

faced actual, documented danger at the relevant time. See Buckley, 424 U.S. at 69 (noting that 

NAACP members faced “economic reprisal, loss of employment, threat of physical coercion, 

and other manifestations of public hostility”) (citation omitted); McConnell, 540 U.S. at 198-99 

(quoting Brown v. Socialist Workers ’74 Campaign Comm., 459 U.S 87 (1982), in which Court 

found “‘reasonable probability’” of “‘threats, harassment, and reprisals’”); see also Nat’l Ass’n 

of Mfrs. v. Taylor, 549 F. Supp. 2d 68, 75-76 (D.D.C. 2008) (trade association suffers no 

irreparable harm in disclosing membership list under lobbying disclosure provisions). 

The administrative and financial burdens associated with the Act’s disclosure, reporting, 

and registration requirements do not begin to rise to the level of irreparable harm. And since 

“[t]he basis of injunctive relief in the federal courts has always been irreparable harm,” Sampson 

v. Murray, 415 U.S. 61, 88 (1974) (citation omitted), Free Speech’s failure on this element alone 

warrants denial of the requested preliminary injunction. 

IV. THE BALANCE OF HARMS FAVORS THE COMMISSION AND AN 

INJUNCTION WOULD BE ADVERSE TO THE PUBLIC INTEREST 

In contrast to the administrative burdens plaintiff seeks to avoid, enjoining the 

Commission from enforcing its regulation and policies would substantially harm the 

Commission and the public. “[A]ny time a State is enjoined by a court from effectuating statutes 

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

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

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

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

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

The imminent harm to the public if the Commission is enjoined from requiring Free 

Speech — and every other organization, see infra pp. 44-46 — to comply with these 

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43 

organizational and disclosure requirements in the months leading up to a presidential election far 

outweighs Free Speech’s interest in avoiding the relatively modest administrative burdens 

resulting from such compliance. See Citizens United, 130 S. Ct. at 914-15 (disclosure and 

disclaimer requirements are justified by governmental interest in “providing information to the 

electorate” and “‘insur[ing] that the voters are fully informed’ about the person or group who is 

speaking” about a candidate). 

Indeed, for the same reasons that Free Speech is especially interested in distributing its 

ads now, in the run-up to a presidential election, the public has “a heightened interest in knowing 

who [is] trying to sway [its] views on the [candidates] and how much they were willing to spend 

to achieve that goal.” Brumsickle, 624 F.3d at 1019. 

The disclosure requirements implicated by plaintiff’s challenge are among the key means 

of informing the electorate about who is speaking about a candidate. As the district court in 

RTAO explained when it refused to enjoin enforcement of the same requirements, entry of a 

preliminary injunction during this period immediately before a general election would impede 

the Commission’s performance of its governmental functions and deprive the public of 

important information. Real Truth About Obama v. FEC, No. 3:08-CV-483, 2008 WL 4416282, 

at *16 (E.D. Va. Sept. 24, 2008), aff’d, 575 F.3d 342 (4th Cir. 2009), vacated on other grounds, 

130 S. Ct. 2371 (2010). Such an injunction also could cause confusion among political actors, 

and undermine the public’s confidence in the federal campaign finance system. Id.; see Purcell, 

549 U.S. at 4-5 (“Court orders affecting elections . . . can themselves result in voter confusion,” 

and “[a]s an election draws closer, that risk will increase.”); Smithson, 750 F. Supp. 2d at 1049 

(declining to impose preliminary injunction that would “radically change Iowa’s campaign 

finance rules mid-stream during an election”). 

Free Speech fails to make any showing, much less a strong one, that the balance of harms 

tips in its favor. See Awad, 670 F.3d at 1125. For this reason as well, its motion should be 

denied.

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V. A NATIONWIDE INJUNCTION WOULD BE ESPECIALLY IMPROPER HERE 

Free Speech asks this Court to commit reversible error by issuing a nationwide injunction 

that covers other parties in every jurisdiction in the country. Not only is such a sweeping 

injunction plainly unwarranted by the circumstances here, it would violate several fundamental 

legal principles concerning the proper scope of injunctive relief, judicial comity, stare decisis, 

and the government’s right to engage in intercircuit nonacquiescence. 

As plaintiff acknowledges, in an earlier case concerning the constitutionality of section 

100.22(b), the Fourth Circuit “conclude[d] that the district court abused its discretion by issuing 

a nationwide injunction . . . that prevents the FEC from enforcing the regulation against any 

party anywhere in the United States.” VSHL, 263 F.3d at 393, overruled on other grounds, 

RTAA, 681 F.3d 544. The Fourth Circuit’s analysis is directly applicable here. 

First, as in VSHL, an injunction that prevents the Commission from enforcing its 

regulation and policies against any party anywhere in the country “is broader than necessary to 

afford full relief to [Free Speech].” VSHL, 263 F.3d at 393. A nationwide injunction, therefore, 

would violate the Supreme Court’s admonition that “injunctive relief should be no more 

burdensome to the defendant than necessary to provide complete relief to the plaintiffs.” 

Califano v. Yamasaki, 442 U.S. 682, 702 (1979). Even if Free Speech were entitled to an 

injunction — and it is not — “[a]n injunction covering [Free Speech] alone adequately protects it 

from the feared [enforcement],” while “[p]reventing the FEC from enforcing [the challenged 

provisions] against other parties in other circuits does not provide any additional relief to [Free 

Speech.” VSHL, 263 F.3d at 393. 

Second, a nationwide injunction would violate principles of judicial comity and stare 

decisis, purporting to supersede, for example, the Fourth Circuit’s recent decision upholding the 

constitutionality of the provisions challenged here and precluding other circuits from deciding 

the constitutionality of the challenged provisions for themselves.33 See VSHL, 263 F.3d at 393-

                                                           

33 Although plaintiff asserts that section 100.22(b) “remains unconstitutional in the First 

Circuit and other federal district courts” (Pl. Mem. at 46), it is far from clear that the two 

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94. But a single federal district court has no jurisdiction to bind other courts in other circuits, let 

alone to overrule a decision by the Fourth Circuit. “In the absence of a controlling decision by 

the Supreme Court, the respective courts of appeals express the law of the circuit.” Hyatt v. 

Heckler, 807 F.2d 376, 379 (4th Cir. 1986); see, e.g., Jordan v. Sosa, 654 F.3d 1012, 1034 (10th 

Cir. 2011) (stating that “[w]e have rejected the notion that ‘we [a]re bound by opinions handed 

down in other circuits,’” and explaining that “considerations of prudence and comity” weigh 

against issuing an injunction affecting “non-party [prison] officials outside this Circuit . . . in the 

very manner that our case law discourages”) (quoting Hill v. Kan. Gas Serv. Co., 323 F.3d 858, 

869 (10th Cir. 2003); citing VSHL, 263 F.3d at 393); United States v. Glaser, 14 F.3d 1213, 1216 

(7th Cir. 1994) (explaining that another circuit’s decision is not binding on courts outside its 

territory because “[o]pinions ‘bind’ only within a vertical hierarchy”). 

Third, the requested relief would foreclose the policy of intercircuit nonacquiescence by 

the government that the Supreme Court relies on to develop important questions of law. VSHL, 

263 F.3d at 393 (citing United States v. Mendoza, 464 U.S. 154, 160 (1984)). As the Supreme 

Court has explained, “[g]overnment litigation frequently involves questions of substantial public 

importance” and preventing the government from relitigating such issues “would substantially 

thwart the development of important questions of law by freezing the first final decision rendered 

on a particular legal issue.” Mendoza, 464 U.S. at 160. Granting the relief requested here not 

only would “thwart the development of important questions of law,” it would pervert the federal 

judicial hierarchy by empowering a single district court to decide constitutional questions in the 

first instance for every federal circuit and to effectively overrule the Fourth Circuit. See United 

States v. AMC Entm’t, Inc., 549 F.3d 760, 771 (9th Cir. 2008) (“In instances where the circuits 

do not agree on the interpretation of a statute or regulation, those disagreements should be 

                                                                                                                                                                                               

decisions plaintiff cites remain valid. As discussed supra pp. 27-29, those decisions predated, 

and are inconsistent with, McConnell, WRTL, and Citizens United. 

Case 2:12-cv-00127-SWS Document 26 Filed 08/10/12 Page 55 of 58
46 

resolved by the Supreme Court.”). Plaintiff’s opinion that “questions of Section 100.22(b) are as 

developed as they need to be” (Pl. Mem. at 46) is irrelevant and directly at odds with Mendoza.

34 

Plaintiff fails to distinguish VSHL and none of its other authority supports the relief it 

seeks here. The Fourth Circuit never indicated that an injunction limited to VSHL was 

appropriate because it “planned to broadcast its communications only in Virginia, possibly in the 

District of Columbia.” (Pl. Mem. at 46.) Instead, the court explained that while nationwide 

relief may be appropriate in a case where the plaintiffs hail from across the country, such was not 

the case in VSHL. 263 F.3d at 393. Nor is it the case here. (Amend. Compl. ¶ 1 (Free Speech is 

“a Wyoming organization comprised of three Wyoming residents”).) 

Plaintiff’s attempt to minimize the distinction drawn in Hedges v. Obama fails for the 

same reason. See Hedges v. Obama, No. 12 Civ. 331, 2012 WL 2044565, at *3 (S.D.N.Y. June 

6, 2012) (explaining that unlike in VSHL, “the plaintiffs in this case hail from across the nation”). 

And the Supreme Court’s holding in Reno v. ACLU — which affirmed an order enjoining laws 

that prohibited certain online speech without addressing the propriety of the nationwide scope of 

the injunction — has no bearing on the propriety of an injunction here, which would halt 

disclosure of important election-related information. See 521 U.S. 844, 885 (1997). 

 

                                                           

34 Moreover, plaintiff’s concern about “a flood of duplicative litigation” is premised on its 

incomplete reading of Nat’l Mining Ass’n v. U.S. Army Corps of Eng’rs, 145 F.3d 1399, 1409 

(D.C. Cir. 1998). (Pl. Mem. at 43 n.14.) In that case, the court explained that the propriety of 

“broad injunction[s]” to avoid “duplicative litigation” in the D.C. Circuit is a unique aspect of 

lawsuits brought in that circuit challenging federal agency rules. Nat’l Mining Ass’n, 145 F.3d at 

1409. Plaintiff fails to note the court’s key clarification regarding the special role of the D.C. 

Circuit: Courts outside the D.C. Circuit “need not fear a flood of relitigation since venue 

restrictions would exclude many would-be plaintiffs from access to the invalidating court.” Id. at 

1409-10 (emphasis added). 

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CONCLUSION 

Plaintiff has failed to carry its heavy burden to satisfy the criteria for an extraordinary 

preliminary injunction that would alter the status quo in the months leading up to a presidential 

election and limit disclosure of campaign finance information to the public. Accordingly, the 

Court should deny plaintiff’s motion. 

Respectfully submitted, 

Anthony Herman 

General Counsel 

David Kolker 

Associate General Counsel 

Lisa J. Stevenson 

Special Counsel to the General 

Counsel 

Adav Noti 

Acting Assistant General Counsel 

/s/ Erin Chlopak

Erin Chlopak 

Attorney 

Counsel for Defendant 

Federal Election Commission 

999 E Street, NW 

Washington, DC 20463 

 

Christopher A. Crofts 

United States Attorney 

/s/ Nicholas Vassallo

Nicholas Vassallo 

Assistant United States Attorney 

Dated: August 10, 2012 

Case 2:12-cv-00127-SWS Document 26 Filed 08/10/12 Page 57 of 58
CERTIFICATE OF SERVICE 

 I hereby certify that on August 10, 2012, the foregoing Federal Election Commission’s 

Opposition to Plaintiff’s Motion for Preliminary Injunction was filed electronically with the 

Clerk of Court through the Court’s ECF system, and served by electronic filing on the following 

recipients: 

John B. Speight 

4021 Snyder 

Cheyenne, WY 82001 

jbspeight@gmail.com

Stephen R. Klein 

Wyoming Liberty Group 

1902 Thomas Avenue, Suite 201 

Cheyenne, WY 82001 

Stephen.klein@wyliberty.org

Benjamin T. Barr 

10737 Hunting Lane 

Rockville, MD 20850 

benjamin.barr@gmail.com

/s/ Erin Chlopak

Erin Chlopak 

Case 2:12-cv-00127-SWS Document 26 Filed 08/10/12 Page 58 of 58