UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

____________________________________ 

 ) 

STOP THIS INSANITY INC ) 

EMPLOYEE LEADERSHIP FUND et. al. ) 

 ) 

 Plaintiffs, ) 

 ) 

v. ) Civil Case No. ________________ 

) 

FEDERAL ELECTION COMMISSION ) 

999 E STREET, NW ) 

WASHINGTON, DC 20463, ) 

 ) 

 Defendant. ) 

____________________________________) 

____________________________________________ 

MOTION FOR PRELIMINARY INJUNCTION 

____________________________________________ 

Plaintiffs move for a preliminary injunction pursuant to Fed. R. Civ. P. 65. 

Plaintiffs file their Verified Complaint for Declaratory and Injunctive Relief and 

Memorandum in Support of Preliminary Injunction Memo concurrently. 

 As described in the Verified Complaint and Memorandum, Plaintiffs complain 

against the unconstitutionality of contribution limits at 2 U.S.C. §§ 441a(a)(1)(C) and 

441a(a)(3), source prohibitions at 2 U.S.C. § 441b(a) and solicitation restrictions at 2 

U.S.C. § 441b(b)(4)(A)(i) as applied to contributions solicited by and given to the 

Employee Leadership Fund and as applied to independent expenditures created by the 

Employee Leadership Fund, including those described in the Verified Complaint. 

Case 1:12-cv-01140-BAH Document 4 Filed 07/18/12 Page 1 of 3
 Plaintiffs have established probable success on the merits, demonstrating that they 

will be irreparably harmed, that an injunction will not substantially harm the Defendant, 

the Federal Election Commission, that an injunction serves the public interest, and there 

is no adequate remedy at law. Because a preliminary injunction sets forth no monetary 

risk to the FEC, Plaintiffs request that any bond requirement should be waived. 

 In accord with Local Rule of Civil Procedure 65.1(c), Plaintiffs have filed a 

Verified Complaint contemporaneously with this request for injunctive relief. Verified 

Complaints are the legal equivalent of an affidavit. See Neal v. Kelly, 963 F.2d 453 (D.C. 

Cir. 1992); Mallick v. Int'l Broth. of Elec. Workers, 814 F.2d 674, 680 (D.C. Cir. 1987). 

 As detailed in the accompanying Memorandum, Plaintiffs request that this court 

grant its preliminary injunction motion and preliminarily enjoin the FEC from enforcing 

2 U.S.C. §§ 441a(a)(1)(C), 441a(a)(3), 441b(a) and 441b(b)(4)(A)(i) as applied to 

contributions solicited by and given to the Employee Leadership Fund’s NonContribution Account and as applied to independent expenditures created by the 

Employee Leadership Fund, until a final hearing on the merits of this matter. 

Respectfully submitted, 

Stephen M. Hoersting* 

__/s/_Dan Backer__________________ 

Dan Backer (D.C. Bar No. 996641) 

DB CAPITOL STRATEGIES, PLLC 

209 Pennsylvania Avenue SE, Suite 2109 

Washington, DC 20003 

202. 210.5431 

Case 1:12-cv-01140-BAH Document 4 Filed 07/18/12 Page 2 of 3
202. 478.0750 facsimile 

shoersting@dbcapitolstrategies.com

dbacker@dbcapitolstrategies.com

 

Attorneys for Plaintiffs 

 *Motion for Pro Hac Vice to be filed. 

Case 1:12-cv-01140-BAH Document 4 Filed 07/18/12 Page 3 of 3
UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

____________________________________ 

 ) 

STOP THIS INSANITY INC ) 

EMPLOYEE LEADERSHIP FUND et. al. ) 

 ) 

 Plaintiffs, ) 

 ) 

v. ) Civil Case No. ________________ 

) 

FEDERAL ELECTION COMMISSION ) 

999 E STREET, NW ) 

WASHINGTON, DC 20463, ) 

 ) 

 Defendant. ) 

____________________________________) 

_____________________________________________________ 

PLAINTIFFS’ MEMORANDUM OF LAW IN SUPPORT OF 

MOTION FOR PRELIMINARY INJUNCTION 

______________________________________________________ 

Respectfully submitted, 

Stephen M. Hoersting* 

 /s/ Dan Backer 

Dan Backer (D.C. Bar No. 996641) 

DB CAPITOL STRATEGIES, PLLC 

209 Pennsylvania Avenue SE, Suite 2109 

Washington, DC 20003 

202. 210.5431 

202. 478.0750 facsimile 

shoersting@dbcapitolstrategies.com

dbacker@dbcapitolstrategies.com

 

Attorneys for Plaintiffs 

 *Motion for Pro Hac Vice to be filed. 

Case 1:12-cv-01140-BAH Document 4-1 Filed 07/18/12 Page 1 of 45
ii 

TABLE OF CONTENTS 

 Page(s) 

TABLE OF AUTHORITIES iv 

INTRODUCTION 1 

STATEMENT OF FACTS 6 

I. The Advisory Opinion Request 8 

II. Ensuing Harm to Plaintiffs 10 

III. Ongoing Harm to Plaintiffs 10 

IV. ELF and STI’s Structure and Operations 11 

V. Activities of Cefaratti, Ehlinger and Glengary LLC 13

ARGUMENT 14 

I. Plaintiffs are Substantially Likely to Succeed on the Merits 17

A. The Very Structure of the Federal Election Campaign Act Illustrates 

That Contribution Limits Applied Against Separate Segregated 

Funds Cannot Be Upheld 18

1. CalMed Does Not Support The Conclusion That A Separate 

Segregated Fund’s Independent Expenditures Corrupt 

 Candidates 21 

2. A Connected Organization And Its SSF May Be Separate 

 Legal Entities, But That Does Not Mean Separate Accounts 

 Do Not Stem Corruption In SSFs 24 

B. As a Matter of Stare Decisis, ELF’s Rights Have Already Been 

Upheld 26 

C. The FEC Cannot Demonstrate a Compelling State Interest in Limiting 

Contributions to ELF’s Independent Expenditures 27 

D. As Applied to ELF and Its Contributors, the Contribution Limits

Are Not Narrowly Tailored 31 

Case 1:12-cv-01140-BAH Document 4-1 Filed 07/18/12 Page 2 of 45
iii 

E. Section 441b(b)(B)(A)(i)’s Restrictions On Solicitations Upheld In 

National Right To Work No Longer Apply To ELF After Citizens 

United 34 

II. Plaintiffs Will Suffer Irreparable Harm Without an Injunction 36 

III. An Injunction Will Not Substantially Injure Others 36 

IV. An Injunction Will Further the Public Interest 37 

V. Plaintiffs Have Standing to Seek the Injunction 38 

VI. The Court Should Waive the Bond Requirement Under F.R.C.P 65(c) 40

CONCLUSION 41 

Case 1:12-cv-01140-BAH Document 4-1 Filed 07/18/12 Page 3 of 45
iv 

TABLE OF AUTHORITIES 

Cases Page(s) 

Ashcroft v. ACLU, 542 U.S. 656 (2004) 17 

Austin v. Michigan Chamber of Commerce, 494 U.S. 690 (1990), rev’d. 

Citizens United v. FEC,130 S. Ct. 876 (2010) 3, 20, 33 

Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289 (1979) 39 

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

*California Medical Association v. FEC, 453 U.S. 182 (1981) passim 

*Carey v. FEC, 791 F. Supp. 2d 121 (2011) passim 

Chamber of Commerce v. FEC, 69 F.3d 600 (D.C. Cir. 1995) passim 

Chaplaincy of Full Gospel Churches v. England,454 F.3d 290 (D.C. Cir. 2006) 17, 36 

Citizens Against Rent Control v. Berkeley, 454 U.S. 290 (1981) passim 

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

Cobell v. Norton, 225 F.R.D. 41 (D. D.C. 2004) 41 

Comm. on Jobs Candidate Advocacy Fund v. Herrera, 07-03199, 

2007 U.S. Dist. LEXIS 73736 (N.D. Cal. Sept. 20, 2007) 41 

Democratic Senatorial Campaign Committee v. FEC, 

918 F. Supp. 1 (D.D.C. 1994) 10 

Dombrowski v. Pfister, 380 U.S. 479 (1965) 39 

Elrod v. Burns, 427 U.S. 347 (1976) 36 

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

FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. 238 (1986) 31 

*FEC v. Nat’l Conservative Political Action Comm.,470 U.S. 480 (1985) 17, 27 

FEC v. Nat'l Rifle Ass'n of Am., 254 F.3d 173 (D.C. Cir. 2001) 40 

FEC v. Wisc. Right to Life, Inc.551 U.S. 449 (2007) 32, 37

First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765 (1978) 28 

Case 1:12-cv-01140-BAH Document 4-1 Filed 07/18/12 Page 4 of 45
v 

Garrison v. Louisiana, 379 U.S. 64 (1964) 38

Gonzales v. O Centro Espirita Beneficente Unaio do Vegetal, 

546 U.S. 418 (2006) 17 

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) 38

Marks v. United States, 430 U.S. 188 (1977) 22

McConnell v. FEC, 540 U.S. 93 (2003) 19, 28, 31 

Mills v. Alabama, 384 U.S. 214 (1966) 37 

NAACP v. Alabama, 357 U.S. 449 (1958) 28 

N.C. Right to Life, Inc. v. Leake, 482 F. Supp. 2d 686 (W.D. N.C. 2007) 32 

N.Y. Times v. Sullivan, 376 U.S. 254 (1964) 38 

Nixon v. Shrink Missouri Government PAC, 528 U.S. 377 (2000) 17 

Odgen v. Marendt, 264 F. Supp. 2d 785 (S.D. Ind. 2003) 41 

Randall v. Sorrell, 548 U.S. 230 (2006) 31

Smith v. Bd. of Election Comm’rs, 591 F. Supp. 70 (N.D. Ill. 1984) 41

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

Temple Univ. v. White, 941 F.2d 201 (3d Cir. 1991) 41 

Unity ’08 v. FEC, 596 F.3d 861 (D.C. Cir. 2010) 9, 40 

Virginia v. American Booksellers Ass’n, Inc., 484 U.S. 383 (1988) 39 

Virginia Soc’y for Human Life, Inc. v. FEC, 263 F.3d 379 (4th Cir. 2001) 39 

Codes, Rules and Statutes 

Bipartisan Campaign Reform Act of 2002, Pub. Law 107-155 (Mar. 27, 2002) 19 

F.R.C.P. 65(c) 40 

2 U.S.C. § 431(4)(B) 1, 6 

2 U.S.C. § 431(17) 8,12 

2 U.S.C. § 437g 9 

Case 1:12-cv-01140-BAH Document 4-1 Filed 07/18/12 Page 5 of 45
vi 

2 U.S.C. § 437f passim 

2 U.S.C. § 441a(a)(1)(C) passim 

2 U.S.C. § 441a(a)(3) passim

2 U.S.C. § 441b(a) passim 

2 U.S.C. 441b(b)(4)(A)(i) passim 

2 U.S.C. § 441b(b)(4)(B) 1, 4, 8 

11 CFR 100.5 25 

11 CFR 102.5 25 

Other Authorities 

122 CONG. REC. H2612 (daily ed. March 31, 1976) 4 

Explanation and Justification for Final Rules on Funds Received in Response to 

Solicitations; Allocation of Expenses by Separate Segregated Funds and 

Nonconnected Committees, 75 FR 13223, 13224 (Mar. 19 2010) 16 

Press Release, FEC Statement on Carey v. FEC: Reporting Guidance for Political 

Committees that maintain a Non-Contribution Account (October 5, 2011) 2 

Case 1:12-cv-01140-BAH Document 4-1 Filed 07/18/12 Page 6 of 45
1 

INTRODUCTION 

 This case is a constitutional challenge to laws that, as interpreted and applied by the 

Federal Election Commission (“FEC” or “Commission”), abridge the freedom of speech and 

association guaranteed under the First Amendment. These challenges are brought as-applied 

against the contributions limits of 2 U.S.C. §§ 441a(a)(1)(C), 441a(a)(3), the source prohibitions 

at 2 U.S.C. § 441b(a) and the solicitation restrictions of 2 U.S.C. § 441b(b)(A)(i). The Employee 

Leadership Fund (“ELF”) is a “connected committee” or “separate segregated fund,” defined at 2 

U.S.C. § 431(4)(B), of the corporation Stop This Insanity, Inc. (hereinafter “STI”). ELF, STI, 

and its would-be contributors’ First Amendment rights are infringed by laws enforced and 

interpreted by the FEC that prohibit ELF from opening a non-contribution account (a.k.a. “Carey 

account,” see Carey v. FEC, 791 F. Supp. 2d 121 (D. D.C. 2011) to solicit and accept 

contributions not subject to the solicitation restrictions of § 441b(b)(4)(A)(i), the limitations of 

§§ 441a(a)(1)(C) and 441a(a)(3) and the source prohibitions at § 441b(a) (a.k.a. “Carey 

contributions”) to finance independent expenditures. These citizens include individuals and 

corporations in the general public, STI’s restricted class, STI’s employees (solicited no more 

than twice per calendar year subject to certain federal restrictions, see 2 U.S.C. § 441b(b)(4)(B)), 

other political committees, and labor organizations. Such contributions and expenditures from 

ELF’s Carey account are subject to the reporting requirements at 2 U.S.C. §434(a), 11 C.F.R. 

100.19 and 11 C.F.R. 104.4 and should be subject to the Commission’s recent guidance on Carey

Accounts and Carey Contributions in its October 5, 2011 press release. Press Release, FEC 

Statement on Carey v. FEC: Reporting Guidance for Political Committees that maintain a NonContribution Account (October 5, 2011) (available at 

http://www.fec.gov/press/Press2011/20111006postcarey.shmtl). 

Case 1:12-cv-01140-BAH Document 4-1 Filed 07/18/12 Page 7 of 45
2 

In Citizens United v. FEC, 130 S. Ct. 876 (2010), the U.S. Supreme Court recognized the 

right of corporations, and all associations of American citizens, to speak out about candidates 

and elections as protected under the First Amendment. Subsequent to Citizens United, 

SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir. 2010) (en banc), EMILY’s List, 581 F.3d 1 

(D.C. Cir. 2009), and Carey v. FEC, 791 F. Supp. 2d 121 (D. D.C. 2011), STI and its restricted 

class members are each constitutionally entitled to spend unlimited sums on independent 

expenditures themselves, to do so in conjunction with others, and to make Carey Contributions 

to the Carey Accounts of other PACs. Because they may each engage in any and all of these 

activities themselves, or in concert with others, there is neither a compelling government interest 

nor a rational basis to deny ELF and its restricted class members the speech and associational 

right to do so through a Carey account within ELF, the SSF of STI. 

STI is a 501(c)(4) social welfare organization that has no interest in spending a primary 

amount of its time engaging political activity when it has a fully reporting political committee, 

ELF, willing to do so. ELF has a very small restricted class and can only speak out by 

associating with persons outside the restricted class. 

According to the landmark opinion in Citizens United, independent expenditures do not 

create apparent, or actual, quid pro quo corruption. Citizens United v. FEC, 130 S. Ct. 876, 910 

(2010). And according to the SpeechNow.org court, regulations burdening independent 

expenditures are outside the scope of government’s legitimate interest in preventing corruption. 

SpeechNow.org v. FEC, 599 F.3d 686, 692 (D.C. Cir 2010) (en banc). Likewise, the Preliminary 

Injunction issued against the FEC just one year ago in Carey held that political action 

committees (“PACs”) are constitutionally entitled to both solicit and accept amount- and sourcerestricted contributions to finance contributions to candidates, and unlimited contributions to a 

Case 1:12-cv-01140-BAH Document 4-1 Filed 07/18/12 Page 8 of 45
3 

Carey account to finance independent expenditures. Carey v. FEC, 791 F. Supp. 2d 121, 135 

(D.D.C. 2011). There is no compelling government interest in discriminating between the 

independent expenditure activities of non-connected PACs and the independent expenditure 

activity of connected PACs (a.k.a “SSFs”) such as ELF, its restricted class and persons in the 

general public who may lawfully engage in such activity themselves. To do so would 

discriminate against speakers based on how they choose to associate, in derogation of Citizens 

United, without preventing quid pro quo corruption or its appearance. The First Amendment 

protections guaranteed to the non-connected committee National Defense PAC, see Carey supra,

and EMILY’s List, see EMILY’s List, supra v. FEC, 581 F.3d 1, 12 (D.C. Cir. 2009), should be 

extended to include SSFs. 

Likewise, there is no reason SSFs like ELF may not solicit members of the general public 

for contributions to a Carey account. When the Supreme Court upheld the solicitation restrictions 

at § 441b(b)(4)(A)(i) in FEC v. National Right to Work Committee, 459 U.S. 197 (1982), they 

did so only to further a complete ban on political participation financed with corporate or union 

treasury funds. Id.; see also Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990); 

rev’d Citizens United v. FEC, 130 S. Ct. 876 (2010). Now that the corporate political 

participation ban has been lifted with regard to the funding of independent expenditures in 

Citizens United and other federal cases, there is no constitutional reason to prevent any domestic 

non-profit organization from raising the funds it needs for independent expenditures from any 

group of citizens choosing to associate with it. The only possible, relevant exception to that 

maxim, which Plaintiffs do not challenge in this case, is the prohibition on soliciting employees 

of the SSF not in the restricted class more than twice annually subject to certain restrictions. See

2 U.S.C. § 441b(b)(4)(B). Neither ELF nor STI will solicit employees who are not included in 

Case 1:12-cv-01140-BAH Document 4-1 Filed 07/18/12 Page 9 of 45
4 

STI’s restricted class outside the parameters set forth at 2 U.S.C. § 441b(b)(4)(B) and 

Commission regulations.1

 VC ¶ 9. A corporation or its SSF may solicit contributions to the SSF 

from the corporation’s executive or administrative personnel and their families, and where 

applicable, stockholders or members. 2 U.S.C. §§ 441b(b)(4)(A)(i). After Citizens United, 

EMILY’s List, SpeechNow.org and Carey, there is no constitutional justification for prohibiting 

an SSF from soliciting a member of its restricted class—but not the non-restricted-class 

employees of the corporation—to make unlimited contributions to the Carey account of the SSF 

for the purpose of making independent expenditures. 

As a matter of statutory grace, an SSF may accept from the corporation or labor 

organization that serves as its connected organization, payments for the SSF’s establishment, 

administration or solicitation costs. 2 U.S.C § 441b(b)(2)(C). Non-connected committees, on the 

other hand, do not enjoy the statutory exemption and must tailor an appropriate share of the 

funds they raise from individuals in amounts less than $5,000 per year to administer 

contributions to candidates. See Carey, 791 F. Supp. 2d at 125-26; EMILY’s List, 581 F.3d at 38 

(quoting CalMed, 453 U.S. at 203). Such payments are not “contributions” under the Act and are 

not prohibited, whether those funds help administer contributions to candidates. Id. Nonetheless, 

ELF will not solicit STI for funds to its Carey account to finance independent expenditures, but 

will accept funds from STI only to pay its administrative expenses and solicitation costs pursuant 

to the statute. VC ¶ 11. 

To date, and over the objection of three of its Commissioners, the Commission has failed 

to grant an affirmative response to plaintiffs’ advisory opinion; affirming ELF’s right to establish 

a non-contribution account to make independent expenditures. Because of this, ELF is presently 

 

1

 Congress enacted this restriction to prevent line-level employees outside the restricted class from feeling pressured 

to make contributions on pain of losing their jobs. See 122 CONG. REC. H2612 (daily ed. March 31, 1976) 

(statement of Rep. Thompson). Plaintiffs will abide by this restriction and do not challenge it here. 

Case 1:12-cv-01140-BAH Document 4-1 Filed 07/18/12 Page 10 of 45
5 

stymied in it ability to accept contributions and speak about candidates for office in 2012 and 

candidates in future elections. By failing to extend the rights enumerated in Carey, Citizens 

United, SpeechNow.org, and EMILY’s List to SSFs, the Commission as a whole has infringed 

upon the constitutionally protected rights of the plaintiffs, causing injury by forcing each to seek 

judicial relief to associate and speak freely. VC ¶ 13. 

 Specifically, ELF plans to distribute banner advertisements over various websites during 

the 2012 election cycle in the districts of congressional candidates that either expressly advocate 

the election or defeat of candidates or hyperlink to pages that expressly advocate the election or 

defeat of these candidates. ELF and Todd Cefaratti have prepared scripts for such ads and are 

prepared to raise funds to support their distribution. VC ¶¶ 27, 38, 55. At least two Plaintiffs are 

each willing and able to contribute $10,000 this year to the independent expenditure advertising 

campaign. VC ¶ 39. Contribution limits at §§ 441a(a)(1)(C) and 441a(a)(3), however, 

specifically their incorrect interpretation by the FEC, prevent ELF from accepting the individual 

Plaintiffs’ contributions and frustrate Plaintiffs’ rights to speech and association. One of these 

potential contributors is outside ELF’s restricted class making ELF unable to solicit him for a 

$1,500 contribution. Plaintiffs are entitled to a preliminary injunction that prevents the FEC from 

enforcing those laws against the Plaintiffs. 

STATEMENT OF FACTS 

Plaintiff Employee Leadership Fund (“ELF”) is a political committee known under the 

Act as a “separate segregated fund” (“SSF” or “connected PAC”), 2 U.S.C. § 431(4)(B), of its 

“connected organization,” Stop the Insanity, Inc. (“STI”). ELF registered with the Federal 

Election Commission (“FEC” or “Commission”) on January 4, 2012. Its principal mailing 

Case 1:12-cv-01140-BAH Document 4-1 Filed 07/18/12 Page 11 of 45
6 

address is in Washington, DC. Plaintiff Stop This Insanity, Inc. (“STI”) is a not-for-profit social 

welfare organization, incorporated in Arizona, and exempt from taxation under §501(c)(4) of the 

Internal Revenue Code whose status has been pending the past two years. STI is the connected 

organization of ELF. 

ELF wants to make contributions to federal candidates in the 2012 election cycle subject 

to the limits, source restrictions and reporting requirements of the Act. VC ¶ 22. It is also 

interested in making independent expenditures with funds unlimited as to amount and 

unrestricted as to source. See id. for ELF’s advertising plans. 

To engage in this activity, ELF needs to pool resources with like-minded citizens. 

Plaintiff Todd Cefaratti is a resident of the State of Arizona, the President of STI, and a member 

of the restricted class of ELF. VC ¶ 18. Cefaratti wants to contribute $10,000 of his personal 

funds to the Carey account located within ELF to finance independent expenditures in 2012. VC 

¶ 25. Plaintiff Glengary LLC is a limited liability corporation located in the State of Arizona and 

interested in contributing $10,000 to a Carey account located within ELF to finance independent 

expenditures in 2012. VC ¶¶ 19, 24. Glengary LLC is not a member of the restricted class of 

STI. VC ¶ 77. Plaintiff Ladd Ehlinger is a resident of Georgia and a political consultant who is 

neither an employee of STI nor a member of STI’s restricted class. VC ¶¶ 20, 26. Ehlinger is best 

described, vis-a-vis ELF and STI, as a member of the general public. Mr. Ehlinger has generally 

expressed an interest in seeing independent expenditures made against the candidates to be 

targeted by ELF. VC ¶ 26. ELF wants to solicit Mr. Ehlinger to make a $1,500 contribution to a 

Carey account to be located within ELF to finance independent expenditures. ELF will not 

solicit national banks, federal contractors or foreign nationals. 2 U.S.C. §§ 441b(a), 441c(a)(2) 

Case 1:12-cv-01140-BAH Document 4-1 Filed 07/18/12 Page 12 of 45
7 

and 441e. Id. ELF’s administrative expenses may be paid by its connected organization, Stop the 

Insanity, Inc. (“STI”), but ELF will not solicit or accept funds from STI to its Carey account. 

In the wake of what most campaign-finance experts have deemed a sea change in election 

law through Carey v FEC, 791 F. Supp. 2d 121 (D.D.C. 2011), SpeechNow.org v. Federal 

Election Commission, 599 F.3d 686 (D.C. Cir 2010), Citizens United v. FEC, 130 S.Ct. 876 

(2010), and EMILY’s List v. Federal Election Commission, 581 F.3d 1 (D.C. Cir. 2009), 

plaintiffs hope to secure and make full use of their First Amendment rights. ELF, which already 

maintains direct contribution account subject to the limitations, prohibitions, and reporting 

requirements of the Act, seeks to establish a separate bank account within ELF—a Carey

account—to finance independent expenditures. VC ¶ 27. ELF would solicit and disclose 

unlimited contributions from individuals, corporations, and unions into this Carey account. The 

independent expenditure campaigns that ELF seeks to engage in advocate the election or defeat 

of clearly identified candidates for federal office. See 2 U.S.C. § 431(17). Part and parcel of 

ELF’s ability to engage in this speech is in its ability to raise funds to make independent 

expenditures and meet the costs of producing and distributing banner advertising, and perhaps in 

the future, other media. Thus, ELF seeks to be freed of limits on contributions given to it for 

independent expenditures and to be freed of solicitation restrictions no longer permissible after 

Citizens United. While the Carey, SpeechNow.org, EMILY’s List and Citizens United courts 

could not have been clearer in protecting these rights, the Commission today refuses to find the 

necessary four votes to extend these rights to SSFs such as ELF. 

Case 1:12-cv-01140-BAH Document 4-1 Filed 07/18/12 Page 13 of 45
8 

I. The Advisory Opinion Request 

On January, 4 2012, the Employee Leadership Fund (“ELF”) submitted an advisory 

opinion request (“AOR”), attached as EXHIBIT A, to the Commission pursuant to 2 U.S.C. § 

437f. ELF’s AOR asked: 

a. May a connected PAC establish a non-contribution account (Carey account) to 

solicit and accept contributions from the general public, corporations and unions 

(Carey contributions) not subject to the restrictions of 2 U.S.C. § 441b(b)(4)(A)(i) 

and 2 U.S.C. § 441b(b)(4)(B)? and 

b. How must ELF report the administrative and operating expenses paid by STI, if 

any, in connection with ELF’s Carey account, particularly where such expenses 

may not be readily determinable? 

The Commission accepted the AOR for review, pursuant to 11 C.F.R. § 112.1, assigned it AOR 

number 2012-01 and posted it on the Commission’s website for public commentary. VC ¶ 30. 

On February 17, 2012, the Commission’s general counsel issued a draft advisory opinion in 

response to ELF’s AOR. VC ¶ 31. The draft advisory opinion, Draft A, concluded that the 

Commission is compelled by judicial decisions to hold that entities be permitted to establish noncontribution accounts or Carey accounts to finance independent expenditures. Thus, Draft A 

concluded that ELF may establish a separate, Carey account into which it may receive unlimited 

contributions for the purpose of financing its independent expenditure activity. This “Draft A” 

advisory opinion is included as EXHIBIT B. An alternate draft, Draft B, was issued on February 

17, 2012 and concluded that the Act and Commission regulations prohibit ELF from establishing 

a Carey account that would receive unlimited contributions solicited from members of ELF’s 

restricted class or the general public for the purpose of financing independent expenditures. VC ¶ 

32. The alternative “Draft B” advisory opinion is included as EXHIBIT C. 

On March 1, 2012, at an open meeting of the Commission, the Commission failed by a 

vote of 3-3 to approve Draft A and also failed by a vote of 3-3 to approve Draft B. Pursuant to 11 

Case 1:12-cv-01140-BAH Document 4-1 Filed 07/18/12 Page 14 of 45
9 

C.F.R. § 112.4(a), the Commission certified on March 2, 2012 that it was unable to approve 

ELF’s AOR because it lacked the necessary four votes to approve the AOR. See EXHIBIT D. 

The Commission’s failure to affirmatively provide a four-vote, binding advisory opinion in 

response to ELF’s request subjects ELF to civil or criminal penalties under 2 U.S.C. § 437g 

merely for speaking about candidates and engaging in political association, because it deprives 

plaintiffs of a legal reliance defense they could otherwise receive under 2 U.S.C. § 437f(c). The 

failed vote completes the advisory opinion process in this matter and deprives plaintiffs of a legal 

right—to engage freely in constitutionally protected speech and association. See Unity 08 v. 

Federal Election Commission, 596 F.3d 861 (D.C. Cir. 2010) (“parties are commonly not 

required to violate an agency's legal position and risk an enforcement proceeding before they 

may seek judicial review”); see also Democratic Senatorial Campaign Committee v. Federal 

Election Commission, 918 F. Supp. 1 (D.D.C. 1994). 

II. Ensuing Harm to Plaintiffs 

At the time of filing the advisory opinion request, several primary elections were less 

than 60 days away. VC ¶ 34. ELF filed its request as promptly as possible to ensure that its 

planned speech and association would be deemed lawful under the Act and related regulations. 

VC ¶ 36. More than 40 days later, the Commission had not issued an advisory opinion. Given 

that the Commission could not issue a definitive statement concerning the legality of any portion 

of ELF’s planned actions, even in light of Carey v. FEC, ELF was required to mute itself and 

curtail its activities during the 2012 primary election cycle. 

During the 2012 primary election cycle, ELF plans to deploy independent expenditure 

communications targeting candidates to federal office. VC ¶ 37. The contribution limits at 

§441a(a), the source restrictions at §441b(a) and the solicitation restrictions at § 441b(b)(A)(i) 

Case 1:12-cv-01140-BAH Document 4-1 Filed 07/18/12 Page 15 of 45
10 

limit the pool of contributors from whom ELF may solicit and the size of their contributions. 

Because the Commission will not recognize ELF’s right to accept unlimited contributions for 

independent expenditures, ELF is unable to gather the resources necessary to be heard during the 

2012 primary election cycle. 

III. Ongoing Harm to Plaintiffs 

As soon as possible, and certainly before the 2012 general election, ELF would like to 

make independent expenditures from a Carey account, see VC ¶ 38, EXHIBIT E, and to make 

additional independent expenditures in the months leading up to the 2012 general election. VC ¶ 

39. Without an immediate ruling from this court, ELF will not have the necessary time to 

fundraise and generate monetary support for its message from likeminded persons. 

ELF would like to solicit contributions for its independent expenditures in amounts 

greater than $5,000.00 per calendar year. VC ¶ 40. ELF has contacted persons donors willing to 

contribute more than $5,000 to fund independent expenditures out of a separate bank located 

within ELF (a Carey account), but has not solicited or accepted such amounts due to the 

contribution limits improperly applied at §§ 441a(a)(1)(C) and 441a(a)(3), the source 

prohibitions at § 441b(a), and the solicitation restrictions at § 441b(b)(4)(A)(i). VC ¶ 40. 

ELF would like to make contributions to candidates for federal office subject to source 

and amount limits found at 2 U.S.C. §§ 441a(a)(1)(C) and (2)(C). Because it plans to make 

unlimited independent expenditures while receiving unlimited contributions for them, the 

Commission’s interpretation of the law prohibits ELF from soliciting and making sourcerestricted and amount-limited contributions to candidates out of a separate bank account at the 

same time. VC ¶ 43. 

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11 

IV. ELF and STI’s Structure and Operations 

ELF and STI operate independently of political candidates, committees, and political 

parties. VC ¶ 44. These organizations do not coordinate any activities with candidates or 

national, state, district or local political party committees or their agents as defined in 2 U.S.C. 

§§ 441a(a)(7)(B) and (C); 11 C.F.R. 109.21 et seq. VC ¶ 44. In addition, ELF and STI do not and 

will not coordinate its activities with other political committees. Id.

ELF’s expenditures for advertisements will be “independent expenditures” under 2 

U.S.C. § 431(17) because they will be expenditures by a person “expressly advocating the 

election or defeat of a clearly identified candidate” that are “not made in concert or cooperation 

with or at the request or suggestion of such candidate, the candidate’s authorized [campaign] 

committee, or their agents, or a political party committee or its agents.” VC ¶ 45. 

ELF has not yet solicited or accepted any contributions in excess of the $5,000 limit, or 

from individuals beyond the restricted class, because the Commission’s incorrect interpretation 

of the Act’s contribution limits, source prohibitions and solicitation restrictions as-applied to 

ELF’s Carey account would subject ELF to civil and criminal penalties. VC ¶ 46. These limits, 

prohibitions and restrictions prevent ELF from accepting a $10,000 contribution to ELF’s Carey

account from Todd Cefaratti, a member of the restricted class. The limits, prohibitions and 

restrictions prevent ELF from soliciting and accepting a $10,000 contribution to its Carey

account from Glengary LLC. And the solicitation restrictions prevent ELF from soliciting a 

$1,500 contribution to its Carey account from Ladd Ehlinger, a citizen in the general public and 

not a member of ELF’s restricted class. VC ¶ 42. Even if ELF could somehow raise enough 

money in increments of $5,000 or less per donor per calendar year to pay for its advertisements, 

the contribution limits and source prohibitions would, by making it harder to gather funds, limit 

Case 1:12-cv-01140-BAH Document 4-1 Filed 07/18/12 Page 17 of 45
12 

the type and number of times it could run advertisements. VC ¶ 49. The limits, prohibitions and 

restrictions would also diminish ELF’s ability to run additional advertisements concerning 

candidates in other races. This is precisely the muting effect the law has had on ELF’s operations 

during the 2012 primary cycle as described above. This constitutes a direct impediment on ELF’s 

rights to association and speech. 

ELF will face a credible threat of prosecution if it solicits or accepts contributions in 

excess of the limits contained in §§ 441a(a)(1)(C) and 441a(a)(3), the source prohibitions at § 

441a(b) or solicits beyond its restricted class to fund independent expenditures—other than to 

solicit employees of STI not in STI’s restricted class, a provision Plaintiffs do not challenge, see

2 U.S.C. § 441b(b)(B)(4). VC ¶ 50-51. 

V. Activities of Cefaratti, Ehlinger and Glengary LLC 

The contribution limits contained in §§ 441a(a)(1)(C) and 441a(a)(3) as improperly 

interpreted by the Commission prevent plaintiff Todd Cefaratti, a member of STI’s restricted 

class, from making the contributions he wants to make to ELF’s Carey account and associating 

with other like-minded persons. VC ¶ 59. Similarly, the contribution limits found at §§ 

441a(a)(1)(C) and 441a(a)(3), the source prohibitions at § 441b(a), and the solicitation 

restrictions at § 441b(b)(4)(A)(i) prevent Plaintiff Glengary LLC from being asked to contribute 

more than $5,000 to a Carey account within ELF to finance independent expenditures in 

contravention of SpeechNow.org and Citizens United. VC ¶ 1. 

ELF will face a credible threat of prosecution if it solicits a $1,500 contribution to its 

Carey account from Plaintiff Ladd Ehlinger, who is not a member of ELF’s restricted class. VC ¶ 

42. And Plaintiffs Ehlinger and Cefaratti should not have their contributions to a Carey account 

located within ELF count against the amount of money they may contribute to federal candidates 

Case 1:12-cv-01140-BAH Document 4-1 Filed 07/18/12 Page 18 of 45
13 

in any biennium, see 2 U.S.C. § 441a(a)(3). Furthermore, ELF and its agents will face a credible 

threat of prosecution if they solicit contributions to ELF’s Carey account in excess of the limits, 

in violation of the source prohibitions or to members outside ELF’s restricted class. VC ¶ 50.

ARGUMENT 

 Less than one year ago, the United States District Court for the District of Columbia 

issued a Preliminary Injunction holding that Political Action Committees are constitutionally 

entitled to a) solicit and accept amount- and source-restricted contributions for use in direct 

candidate support, as well as b) solicit and accept unlimited contributions (Carey Contributions) 

to a non-contribution account (Carey Account) to finance independent expenditures. Carey v. 

FEC, 791 F. Supp. 2d 121 (D.D.C. 2011); see also Press Release, FEC Statement on Carey v. 

FEC: Reporting Guidance for Political Committees that Maintain a Non-Contribution Account 

(Oct. 5, 2011) (available: http://www.fec.gov/press/Press2011/20111006postcarey.shtml). The 

Preliminary Injunction in Carey followed the reasoning of a long line of cases issued in the past 

few years, including two from the United States Court of Appeals for the District of Columbia 

Circuit: non-connected political action committees that receive dollar-limited and sourcerestricted contributions to in turn make contributions to candidates also have the First 

Amendment right to receive unlimited funds for independent expenditures. EMILY’s List v. 

Federal Election Commission, 581 F.3d 1, 12 (D.C. Cir. 2009). A non-connected committee that 

“makes independent expenditures to support federal candidates does not suddenly forfeit its First 

Amendment rights when it decides also to make direct contributions to parties or candidates.” Id.

Recent federal decisions, based upon Supreme Court precedent, have clearly established that 

“neither contribution nor expenditure limitations involving independent expenditure activities are 

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14 

constitutional under the First Amendment.” Carey v. FEC, 791 F. Supp. 2d 121, 135 (D.D.C. 

2011). See also SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir. 2010), Citizens United v. FEC,

130 S. Ct. 876 (2010), EMILY’s List v. FEC, 581 F.3d 1 (D.C. Cir. 2009), Buckley v. Valeo, 424 

U.S. 1 (1976). Given the paramount importance of these First Amendment rights, the 

Commission should have found four votes to recognize the same First Amendment protections 

as-applied to SSFs, such as ELF, that have been afforded to non-connected committees such as 

EMILY’s List. 

 It is well-settled that corporations like STI, including the members of its restricted class 

of employees, may lawfully make unlimited independent expenditures, and may lawfully make 

unlimited contributions to the Carey accounts of other organizations as well. There is no added 

corruption that arises from STI engaging in this activity through a vehicle of its choosing—the 

Carey account of ELF, STI’s SSF. There is no compelling government interest in discriminating 

between the independent expenditure activities of non-connected committees, which may solicit 

funds from the general public to finance independent expenditures, and the independent 

expenditure activity of SSFs and their restricted class employees and others in the general public 

who may lawfully engage in such activity themselves (except non-member employees twice per 

year)—to do so would in effect discriminate against speakers based on how they choose to 

associate. Further, there is nothing inherent in the structure or operation of an SSF that suggests 

that there is an enhanced threat of actual or apparent quid pro quo corruption when compared to 

the independent expenditures made by non-connected PACs. This is evidenced by a recent 

Commission rulemaking that amended regulations that apply with equal force to non-connected 

committees and SSFs, alike, following the D.C. Circuit Court’s opinion in EMILY’s List. See

Explanation and Justification for Final Rules on Funds Received in Response to Solicitations; 

Case 1:12-cv-01140-BAH Document 4-1 Filed 07/18/12 Page 20 of 45
15 

Allocation of Expenses by Separate Segregated Funds and Nonconnected Committees, 75 FR 

13223, 13224 (Mar. 19 2010). (“The Commission agrees...that the [EMILY’s List] court’s 

holding applies to SSFs as well as to nonconnected committees.”). 

 Despite the decisions in Carey, EMILY’s List, Citizens United, SpeechNow.org, and 

Buckley, the Federal Election Commission failed to find four votes to guide ELF in its advisory 

opinion request. See Certification of FEC Recording Secretary Shawn Woodhead Werth, AO 

2012-01 (date) (hereinafter “Certification”) VC, EXHIBIT D. Three of the Commission’s six 

members rightly understood that they were bound by the reasoning of Carey, EMILY’s List, 

Citizens United, Buckley, and SpeechNow.org. See FEC Agenda Document No. 12-13, VC at 

EXHIBIT B.] Three commissioners voted otherwise. See Certification, VC at EXHIBIT C. The 

Commission’s failure to follow Carey and EMILY’s List, and the Supreme Court precedents that 

comprise them, leaves plaintiffs with the unmistakable conclusion that they will be liable if they 

establish a non-contribution account (Carey account), not subject to the solicitation restrictions 

of § 441b(b)(4)(A)(i), to solicit and accept funds for independent expenditures in excess of the 

$5,000 contribution limit at §§ 441a(a)(1)(C) and 441a(a)(3) and the source prohibitions at § 

441b(a). See 2 U.S.C. § 437f. 

Plaintiffs seek to preliminarily enjoin contribution limits, source prohibitions and 

solicitation restrictions that, if applied exclusively to ELF’s independent expenditure activities, 

will prevent plaintiffs from exercising their rights to speech and association during the time those 

rights are most effective—the election season. To warrant preliminary injunctive relief, the 

moving party must show (1) a substantial likelihood of success on the merits, (2) that it would 

suffer irreparable injury if the injunction were not granted, (3) that an injunction would not 

substantially injure other interested parties, and (4) that the public interest would be furthered by 

Case 1:12-cv-01140-BAH Document 4-1 Filed 07/18/12 Page 21 of 45
16 

the injunction. Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 

2006). As demonstrated below, each of these factors weighs in plaintiffs’ favor. 

I. Plaintiffs Are Substantially Likely Succeed on the Merits 

 The burden of proof at the preliminary injunction stage tracks the burden of proof at trial. 

Where First Amendment rights are at stake, the FEC must demonstrate the likelihood that the 

law will be upheld. See Gonzales v. O Centro Espirita Beneficente Unaio do Vegetal, 546 U.S. 

418, 429 (2006); Ashcroft v. ACLU, 542 U.S. 656, 666 (2004). The FEC must demonstrate that 

the contribution limits, source prohibitions and solicitation restrictions further either a 

compelling or substantial governmental interest as applied to plaintiffs. Whether the standard of 

review for limits or source prohibitions on contributions to ELF’s independent-expenditure 

account is tested under the strict scrutiny applicable to restrictions on expenditures, see FEC v. 

Nat’l Conservative Political Action Committee, 470 U.S. 480 (1985)(“NCPAC”), the exacting 

scrutiny discussed in Citizens Against Rent Control v. Berkeley, 454 U.S. 290 (1981), or the “less 

rigorous review” applicable to limits on contributions to candidates, see Nixon v. Shrink Missouri 

Government PAC, 528 U.S. 377 (2000), the FEC cannot meet its burden. 

A. The Very Structure of the Federal Election Campaign Act Illustrates That 

Contribution Limits Applied Against Separate Segregated Funds Cannot Be 

Upheld 

 The FEC cannot meet its burden here for the primary reason that independent 

expenditures made from a separate account do not present any threat of corruption or its 

appearance that would justify limiting the contributions ELF solicits and accepts for independent 

expenditures. Carey, 791 F. 2d at 126 (“limits on soft money contributions used for independent 

expenditures are unconstitutional because such a limitation violates a contributor's First 

Amendment rights.”) See also EMILY’s List, 581 F.3d at 7 (Supreme Court “has consistently 

Case 1:12-cv-01140-BAH Document 4-1 Filed 07/18/12 Page 22 of 45
17 

dismissed the notion that expenditures implicate the anti-corruption interest.”). ELF has stated it 

will establish a separate account to make its independent expenditures and will ensure that the 

costs of administering the funds from which it makes candidate contributions are paid from that 

candidate contribution account. VC ¶¶ 27, 60. 

 ELF is a separate segregated fund of STI, a not-for-profit social welfare organization. Id.

at ¶ 17. It claims a major purpose of campaign activity. Id. Yet, ELF’s major purpose cannot be 

the basis for prohibiting it from establishing a separate account to make independent 

expenditures from unlimited funds. In SpeechNow.org v. FEC, the organization claimed a major 

purpose of campaign activity and the SpeechNow.org opinion permits the organization to make 

independent expenditures from unlimited funds. SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir. 

2010) (en banc). The FEC’s reasoning then—to the extent a split decision admits of reasoning—

must be based upon a need to combat some potential corruption. That potential for corruption 

would have to be based upon ELF’s connection to candidates in some way. See Buckley v. Valeo,

424 U.S. 1 (1976). The lack of any corruption here is illustrated by reviewing the rights of other 

political organizations. 

Organizations comprised of or controlled by candidates can pose a threat of corruption, as 

in the case of national party committees. See McConnell v. FEC, 540 U.S. 93 (2003). It is worth 

noting that, despite the unique form of corruption posed by the party committee, the McConnell 

Court did not uphold a provision of the Bipartisan Campaign Reform Act of 2002, Pub. Law, 

107-155 (March 27, 2002), that required parties to choose between making independent 

expenditures on behalf of candidates and making in-kind contributions to candidates. See 

McConnell v. FEC, 540 U.S. 93, 213-18 (2003). 

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But ELF is not a party committee, and the Carey and EMILY’s List opinions hold that 

non-profits do not pose the threat of corruption posed by party committees. See EMILY’s List v. 

FEC, 581 F.3d 1, 13 (2009) (“[M]cConnell does not support such regulation of non-profits”). 

See also Carey, 791 F. Supp. 2d at 131. The non-profit reviewed in EMILY’s List technically 

administered a non-connected political committee, not an SSF committee connected to a nonprofit corporation. But the distinction is irrelevant under constitutional law. 

Even after the landmark opinion in Citizens United v. Federal Election Commission, 130 

S. Ct. 876 (2010), it remains a crime for corporations and labor unions to make contributions to 

candidates from treasury funds. See 2 U.S.C. 441b. Nonetheless, corporations, such as STI, and 

labor unions are permitted by statute to use treasury funds (soft money) to pay the expenses of 

administering a separate segregated fund (“SSF”) such as ELF to make contributions to 

candidates from hard money. 2 U.S.C. § 441b. It is the prophylactic effect of separate accounts 

that allows the SSF to make contributions to candidates with hard money while paying the SSF’s 

administrative expenses with soft money. This same prophylactic will allow STI to pay the 

administrative expenses of the Carey account: another account inside ELF for independent 

expenditures will address the anti-corruption interest without curtailing independent speech. 

Corporations and labor unions may make unlimited independent expenditures from 

treasury funds while using SSFs to make contributions to candidates. Citizens United, 130 S. Ct. 

876 (2010). Indeed, the Citizens United organization operated an SSF for a decade and made 

candidate contributions. This did not prevent the Court from overruling Austin v. Michigan 

Chamber of Commerce on its behalf and recognizing its right to make unrestricted independent 

expenditures. Citizens United, 130 S. Ct. at 913. Justice Stevens noted the fact of Citizens 

United’s PAC in his dissenting opinion. 

Case 1:12-cv-01140-BAH Document 4-1 Filed 07/18/12 Page 24 of 45
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In the case at hand, all Citizens United needed to do to broadcast Hillary right 

before the primary was to abjure business contributions or use the funds in its 

PAC, which by its own account is "one of the most active conservative PACs in 

America," Citizens United Political Victory Fund, http://www.cupvf.org/. 40

*** 

40. Citizens United has administered this PAC for over a decade. [citation 

omitted]. Citizens United also operates multiple "527" organizations that engage 

in partisan political activity. See Defendant FEC's Statement of Material Facts as 

to Which There Is No Genuine Dispute in No. 07-2240 (DC), PP 22-24. 

Citizens United, 130 S. Ct . 876, 944 n.40 (2010), (Stevens, J., dissenting). 

The Supreme Court recognized Citizens United’s right to make independent expenditures 

with unrestricted funds while fully aware that the organization maintained a separate segregated 

fund for making contributions to candidates. Id. An SSF political committee also must be 

permitted to make independent expenditures with unlimited funds. Maintaining separate 

accounts cures any potential corruption of candidates. 

The FEC may rely upon two more arguments to deny Plaintiffs their rights to make 

independent expenditures with unlimited funds. It may argue that the Citizens United opinion is 

not instructive because the Citizens United organization and the Citizens United Voter Fund are 

separate legal entities. It may also attempt to rely on the California Medical Association opinion 

to conclude that SSF committees cannot make independent expenditures with unlimited funds 

because doing so will corrupt candidates. Both arguments fail. 

1. CalMed Does Not Support The Conclusion That A Separate 

Segregated Fund’s Independent Expenditures Corrupt Candidates 

While the Supreme Court has never directly addressed whether the government has a 

compelling interest in limiting contributions to an SSF making independent expenditures, its 

decision in California Medical Association v. FEC, 453 U.S. 182 (1981) [hereinafter CalMed], 

Case 1:12-cv-01140-BAH Document 4-1 Filed 07/18/12 Page 25 of 45
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provides guidance on the proper analysis of the issue in this case. CalMed involved a challenge 

by a multi-candidate committee—defined as a political committee that makes contributions to 

five or more federal candidates—to the $5,000 annual contribution limit under § 441a(a)(1)(C). 

Id. at 194. Concluding that contributions to the multi-candidate committee amounted merely to 

“speech by proxy” of the PAC’s contributors—which was entitled to lesser protections under the 

First Amendment—a plurality of the Court upheld the limit on the ground that it served the 

government’s interest in preventing circumvention of the limits on contributions made directly to 

candidates. Id. at 196-98. The multi-candidate committee made contributions directly to 

candidates. Thus, according to the plurality, contributors seeking to avoid the (at the time) 

$1,000 annual candidate contribution limits could make larger contributions to multi-candidate 

committees, which could then be funneled to candidates. Id. at 197-98. 

 Justice Blackmun separately concurred and concluded that the plurality’s anticircumvention rationale applied only because the committee at issue was a multi-candidate 

committee that made direct contributions to candidates. Id. at 203. Justice Blackmun rejected the 

plurality’s conclusion that contributions to the multi-candidate committee were not entitled to 

full First Amendment protection, id. at 201-02, and concurred in the plurality’s judgment, 

however, because he recognized that, as applied to multi-candidate committees, the annual 

contribution limit was a narrow means of preventing circumvention of the limits that applied to 

direct contributions to candidates. Id. at 203. 

 Justice Blackmun made clear that the same analysis would not apply to limits on 

contributions to committees “established for the purpose of making independent expenditures.” 

Id. In sharp contrast to multi-candidate committees—which are “conduits for contributions to 

Case 1:12-cv-01140-BAH Document 4-1 Filed 07/18/12 Page 26 of 45
21 

candidates” and thus raise concerns about corruption—“contributions to a committee that makes 

only independent expenditures pose no such threat.” Id. As Justice Blackmun explained, 

[t]he Court repeatedly has recognized that effective advocacy of both public and 

private points of view, particularly controversial ones, is undeniably enhanced by 

group association.... By pooling their resources, adherents of an association 

amplify their voices...; the association is but the medium through which its 

individual members seek to make more effective the expression of their own 

views. 

Id. (internal quotation marks and citations omitted). Because Justice Blackmun’s decision is the 

narrower one, his is the controlling decision in the case. See Marks v. United States, 430 U.S. 

188, 193 (1977) (stating that when the Court issues a fragmented decision, the position of the 

narrowest concurrence controls). 

Two principles emerge from CalMed. First and foremost, under Justice Blackmun’s 

controlling opinion, the government may limit contributions to groups only where they implicate 

the interest in preventing corruption or its appearance. 453 U.S. at 203. While contributions to 

multi-candidate committees that in turn fund contributions to candidates can raise such concerns, 

contributions for independent expenditures cannot. Id. at 203-04; see also Citizens United v. 

FEC, 130 S. Ct 876, 909 (2010) (independent expenditures do not create quid pro quo corruption 

or its appearance). 

Second, even the plurality’s conclusions apply only to multi-candidate committees that 

make contributions directly to candidates. See EMILY’s List, 581 F.3d 1, 9 n.8 (discussing 

CalMed); 12 n.10 (“The CalMed Court never stated that non-profits could be required to use 

hard money for advertisements.”). This point is not only implicit in the plurality’s analysis; it is 

also stated expressly in the opinion. In a footnote, the plurality noted that the ACLU in an amicus

brief claimed that the contribution limit at issue “would violate the First Amendment if construed 

to limit the amount individuals could jointly expend to express their political views.” Id. at 197 

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22 

n.17. This concern was not at issue in the case, however, because it involved only a multicandidate committee that made contributions directly to candidates. Id. As the plurality 

explained, “[c]ontributions to such committees are therefore distinguishable from expenditures 

made jointly by groups of individuals in order to express common political views.” Id. See also 

Cal. Med. Ass’n. v. FEC, 641 F.2d 619, 625 (9th Cir. 1980) (Kennedy, J.) (multi-candidate 

committee is “natural conduit for candidate contributions... and the essential purpose of the 

provision here in question is to limit those contributions, not to limit expenditures for any other 

type of political advocacy) (emphasis added). In short, ELF’s case is distinguishable from the 

fact pattern in CalMed—ELF asks to make independent expenditures, the California Medical 

Association did not—and falls squarely within the reasoning of Justice Blackmun’s controlling 

concurrence. 

2. A Connected Organization And Its SSF May Be Separate Legal 

Entities, But That Does Not Mean Separate Accounts Do Not Stem 

Corruption In SSFs. 

The FEC may attempt to distinguish the rights of non-connected committees like the 

National Defense PAC, (discussed in Carey v. FEC, supra) and EMILY’s List from the rights of 

connected committees, a.k.a. SSFs. It may point out that a corporation or labor union (the 

“connected organization”) and its separate segregated fund are legally separate entities. See 

CalMed, 453 U.S. at 183; Citizens United, 130 S. Ct. at 903. It is this separation, the FEC might 

argue, that permits a non-profit like California Medical Association to accept unlimited 

contributions for independent expenditures but prevents a non-connected committee that makes 

candidate contributions, like CALPAC, from doing the same. The FEC may argue that the 

Citizens United opinion really means the Citizens United organization is permitted to use 

unrestricted funds for its independent expenditures, but the Citizens United Political Voter Fund, 

a separate legal entity, may not. Any argument of this kind would have to be based on the belief 

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23 

that separating the accounts for soft-money independent expenditures and hard-money candidate 

contributions is an insufficient prophylactic against any potential corruption to candidates. 

But this argument is undermined and invalidated by the FEC’s longstanding policy of 

recognizing the right of political committees to maintain one hard-money account to make 

contributions to federal candidates while maintaining a soft money account to make non-federal 

disbursements and donations. See 11 CFR 102.5. For years, the FEC’s regulations have required 

each organization “that finances political activity in connection with both Federal and nonFederal elections and that qualifies as a political committee under 11 CFR 100.5,” which 

includes SSFs and non-connected committees alike, to either pay for all non-federal activity with 

federal dollars or establish two accounts: one federal, the other non-federal (or soft money). 11 

CFR 102.5 

 The federal account “shall be treated as a separate Federal political committee that must 

comply with the requirements of the Act including the registration and reporting requirements of 

11 CFR parts 102 and 104. Only funds subject to the prohibitions and limitations of the Act 

[a.k.a. “hard money” or “Federal funds”] shall be deposited in such separate Federal account.” 

Id. What safeguard ensures that federal candidates are not corrupted by non-federal funds housed 

inside the SSF? The same requirement that ELF would follow in financing its proposed 

independent expenditures with unrestricted funds: the restrictions of 11 CFR 102.5. “No transfers 

may be made to such Federal account from any other account(s) maintained by such organization 

for the purpose of financing activity in connection with non-Federal elections.” Id.

If separate accounts are the trusted method of ensuring that a political committee’s nonfederal funds for non-federal activity do not corrupt federal candidates, then separate accounts 

must serve the same anti-corruption interests here. That is, separate accounts and a prohibition on 

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transfers between accounts will ensure that non-federal funds for independent expenditures will 

not corrupt federal candidates. It is beyond dispute that separate accounts are the method by 

which corporate and labor treasury funds have been permitted to pay the administrative expenses 

of political committees that make contributions to candidates, without corrupting candidates, 

over the past thirty years. And separate accounts have the virtue of being a narrowly drawn 

remedy to further any interest in protecting against quid pro quo corruption while recognizing 

Plaintiffs’ rights to speak effectively. EMILY’s List v. FEC, 581 F.3d at 184. After all, that is 

exactly what the EMILY’s List court decided as a matter of binding precedent. 

B. As a Matter of Stare Decisis, ELF’s Rights Have Already Been Upheld

Finally, this question has already been squarely decided by the D.C. Circuit Court of 

Appeals in EMILY’s List v. FEC, 581 F.3d 1 (2009). 

What about a non-profit entity that falls into both categories -- in other words, a 

non-profit that makes expenditures and makes contributions to candidates or 

parties? EMILY's List is a good example of such a hybrid non-profit: It makes 

expenditures for advertisements, get-out-the-vote efforts, and voter registration 

drives; it also makes direct contributions to candidates and parties. 

*** 

The constitutional principles that govern such a hybrid non-profit entity follow 

ineluctably from the well-established principles governing the other two 

categories of non-profits. To prevent circumvention of contribution limits by 

individual donors, non-profit entities may be required to make their own 

contributions to federal candidates and parties out of a hard-money account -- that 

is, an account subject to source and amount limitations ($ 5000 annually per 

contributor). Similarly, non-profits also may be compelled to use their hardmoney accounts to pay an appropriately tailored share of administrative expenses 

associated with their contributions. See Cal. Med, 453 U.S. at 198-99 n.19

(opinion of Marshall, J.). But non-profit entities are entitled to make their 

expenditures -- such as advertisements, get-out-the-vote efforts, and voter 

registration drives -- out of a soft-money or general treasury account that is not 

subject to source and amount limits. Stated another way: A non-profit that makes 

expenditures to support federal candidates does not suddenly forfeit its First 

Amendment rights when it decides also to make direct contributions to parties or 

candidates. Rather, it simply must ensure, to avoid circumvention of individual 

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contribution limits by its donors, that its contributions to parties or candidates 

come from a hard-money account. 

EMILY’s List, 581 F.3d at 12. 

 The constitutional principles espoused in EMILY’s List must apply not just to the 

independent expenditures of non-connected committees but also to the independent expenditures 

of SSFs. And the EMILY’s List opinion is no outlier. It is firmly grounded in the Supreme 

Court’s campaign finance jurisprudence. The Supreme Court has held that independent 

expenditures, whether by individuals, committees, corporations or labor unions, cannot 

constitutionally be limited, because they are, by definition, separate from candidates and thus 

cannot raise any concerns about corruption. See Citizens United v. FEC, 130 S. Ct. 876 (2010); 

FEC v. Nat’l Conservative Political Action Committee, 470 U.S. 480, 496-97 (1985) [hereinafter 

NCPAC]; Buckley v. Valeo, 424 U.S. 1 (1976). The Court has also held that limits on 

contributions to groups that make independent expenditures are necessarily restrictions on their 

expenditures. See Citizens Against Rent Control v. City of Berkeley, 454 U.S. 290, 299-300 

(1981); EMILY’s List v. FEC, 581 F.3d 1 (D.C. Cir. 2009). Combined, these principles make 

clear that the contribution limits that apply to the funding of candidate contributions cannot 

constitutionally be applied to the independent expenditures of ELF. 

C. The FEC Cannot Demonstrate a Compelling, Substantial or Legitimate 

Interest in Limiting Contributions to ELF.

 As the Supreme Court has repeatedly stated, a fundamental purpose of the First 

Amendment was to protect the discussion of candidates, in order to “ensure the unfettered 

interchange of ideas for the bringing about of political and social changes desired by the people.” 

Buckley, 424 U.S. at 14. Thus, the First Amendment protects vigorous advocacy intended to 

influence the outcome of elections no less than the discussion of ideas. See First Nat’l Bank of 

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26 

Boston v. Bellotti, 435 U.S. 765, 790 (1978). It also protects the right of individuals to associate 

with one another because “effective advocacy of both public and private points of view, 

particularly controversial ones, is undeniably enhanced by group association.” NAACP v. 

Alabama, 357 U.S. 449, 460 (1958). By associating with others, “individuals can make their 

views known, when, individually, their voices would be faint or lost.” Citizens Against Rent 

Control, 454 U.S. at 294. See also Buckley, 424 U.S. at 22 (stating that the purpose of the right of 

association is to allow individuals to amplify their voices by associating with others). All this 

rests at the very heart of what ELF hopes to accomplish. 

The Supreme Court has held that “[i]ndependent expenditures constitute expression ‘at 

the core of our electoral process and of the First Amendment freedoms.’” MCFL, 479 U.S. at 254 

(quoting Buckley, 424 U.S. at 39). See also, NCPAC, 470 U.S. at 493 (stating that independent 

expenditures “produce speech at the core of the First Amendment”). As a result, limits on what 

committees can spend independently of candidates and party committees are subject to the 

highest constitutional protection. As the Court stated in NCPAC, “[a] restriction on the amount of 

money a person or group can spend on political communications during a campaign necessarily 

reduces the quantity of expression by restricting the number of issues discussed, the depth of 

their exploration, and the size of the audience reached. This is because virtually every means of 

communicating ideas in today’s mass society requires the expenditure of money.” Id. at 493-94 

(quoting Buckley, 424 U.S. at 19). 

 While the limit at issue in NCPAC operated directly on expenditures by the group, rather 

than contributions to it, limits on contributions for independent expenditures automatically 

operate to limit the group’s expenditures. EMILY’s List, 581 F.3d at 14, n.13 (“Limits on 

donations to non-profit entities are analytically akin to limits on expenditures by the donors.”). 

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The conclusion necessarily follows from the Supreme Court’s decision in Citizens Against Rent 

Control. That case involved a $250 limit on contributions to support or oppose a ballot measure. 

454 U.S. at 292. Concluding that the limit prevented individuals from pooling their funds in 

order to finance their collective advocacy, the Court applied exacting scrutiny and struck it 

down. See id. at 294-95, 300. In arriving at that conclusion, the Court recognized that the limit on 

contributions necessarily limited the funds that the group could spend on its own speech. See id.

at 299. As the Court explained, while an individual may make unlimited expenditures under the 

law, she may not “contribute beyond the $250 limit when joining with others to advocate 

common views. The contribution limit thus automatically affects expenditures, and limits on 

expenditures operate as a direct restraint on freedom of expression....” Id. See also id. (“Placing 

limits on contributions which in turn limit expenditures plainly impairs freedom of expression.”). 

 The same is true here. To produce and distribute just the initial ads for which ELF has a 

production quote and outline for will cost upwards of $10,000 to produce and distribute. See

EXHIBIT E. Without contributions from Plaintiffs Glengary, Cefaratti, and Ehlinger, ELF will 

be unable to produce and distribute these ads. VC ¶ 39, EXHIBIT E. Even assuming that ELF 

could raise sufficient funds in increments of less than $5,000 to pay for these ads, the 

contribution limits would still significantly limit the number of times it could run those ads and 

limit its ability to run additional ads concerning other federal candidates in other races. Id. at ¶ 

49.

 As in NCPAC, 470 U.S. at 495; Citizens Against Rent Control, 454 U.S. at 296; EMILY’s 

List, SpeechNow.org and Carey, the contribution limits that apply to ELF restrict plaintiffs’ 

rights to pool their funds in order to amplify their voices beyond what any of them would be able 

to achieve on their own. Citizens Against Rent Control, 454 U.S. at 299-300 (stating that the 

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28 

rights of speech and association “blend and overlap” and are both implicated by contribution 

limits imposed on groups that support or oppose ballot issues). The contribution limits restrict 

not only ELF’s right to free speech by limiting the funds it has available to spend on its 

advertisements, the limits also restrict its supporters’ rights to free speech by preventing them 

from pooling their funds and speaking collectively through ELF. See NCPAC, 470 U.S. at 495. 

 As applied to ELF’s independent expenditures, the contribution limits contained in §§ 

441a(a)(1)(C) and the source prohibitions of 441b operate very differently from the contribution 

limits in the circumstances in which the Supreme Court upheld them in Buckley. There, the Court 

addressed limits that applied to contributions made directly to candidates or their committees. 

424 U.S. at 23-38. Finding that contributions to candidates served as only a “general expression 

of support for the candidate and his views but does not communicate the underlying basis for the 

support” and that the contributors’ expression “rests solely on the undifferentiated symbolic act 

of giving,” the Court concluded that the speech element in contributions to candidates was 

minimal. See id. at 21. Support for ELF’s independent expenditures conveys much more than the 

“undifferentiated, symbolic act of giving.” Buckley, 424 U.S. at 21. It conveys agreement with 

ELF’s message. As the Court stated in rejecting the “speech by proxy” argument in NCPAC, “the 

contributors obviously like the message they are hearing from these organizations and want to 

add their voices to that message; otherwise, they would not part with their money.” 470 U.S. at 

95. 

 In its recent landmark decision, the Citizens United Court again identified the sole 

interest sufficiently compelling to limit contributions to political organizations: that of 

preventing the actual or apparent quid pro quo corruption of candidates. 130 S. Ct. at 908-909. 

As the Court has stated, “preventing corruption or the appearance of corruption are the only 

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29 

legitimate and compelling government interests thus far identified for restricting campaign 

finances.” NCPAC, 470 U.S. at 496-97; Randall v. Sorrell, 548 U.S. 230, 246-248 (2006) 

(recognizing corruption as the only interest that can support contribution limits and striking 

down limits as broader than necessary to achieve that interest); Citizens Against Rent Control,

434 U.S. at 437-38 (“Buckley identified only a single narrow exception to the rule that limits on 

political activity were contrary to the First Amendment. The exception relates to the perception 

of undue influence of large contributors to a candidate.”) (emphasis in original). 

D. As Applied to ELF and its Supporters, the Contribution Limits and Source 

Prohibitions Are Not Narrowly Tailored 

 “Where at all possible, government must curtail speech only to the degree necessary to 

meet the particular problem at hand, and must avoid infringing on speech that does not pose the 

danger that has prompted regulation.” FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. 

238, 265 (1986) (“MCFL”). The “problem” for which Congress passed FECA’s contribution 

limits and source prohibitions was the appearance of or actual corruption of candidates. See 

Buckley, 424 U.S. at 23-38. Regulating “only to the degree necessary” to address that problem 

would mean applying contribution limits only to those groups that raise concerns about 

corruption. Here the FEC wields far too blunt an instrument to cure any form of recognized quid 

pro quo corruption. ELF’s establishment of an independent expenditure account cannot raise 

such concerns and cannot be used to circumvent the limits on contributions to candidates. As a 

result, applying contribution limits to ELF and its supporters is not narrowly tailored. See, e.g., 

NCPAC, 470 U.S. at 498; CalMed, 453 U.S. at 203-04 (Blackmun, J. concurring). It is no answer 

to say that ELF could speak adequately with less money. As the Supreme Court made clear in 

WRTL, cheaper alternatives are not reasonable alternatives in terms of “impact and 

effectiveness.” 551 U.S. 449, 477 n.9. Even under “less rigorous review,” limits are permissible 

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30 

only if they are “closely drawn” to serve a “sufficiently important governmental interest.” 

Randall, 548 U.S. at 247 (quoting Buckley, 424 U.S. at 25). This is not a cursory review, and, to 

date, the Supreme Court has identified only the interest in combating corruption of candidates as 

important enough to justify contribution limits. See, e.g., NCPAC, 470 U.S. at 496-97; Buckley,

424 U.S. at 25, 28. The establishment of ELF’s Carey account cannot raise any concerns about 

corruption or its appearance and cannot be used to circumvent the limits on contributions to 

candidates. Thus, even if this court concludes that strict scrutiny does not apply, Plaintiffs have 

still demonstrated a substantial likelihood of success on the merits to justify a preliminary 

injunction. See Carey, 791 F. Supp. 2d at 128, see also N.C. Right to Life, Inc. v. Leake, 482 F. 

Supp. 2d 686, 698-99 (W.D. N.C. 2007) (holding contribution limit unconstitutional as applied 

to independent expenditure committee even under the lesser scrutiny that applies to limits on 

contributions to candidates). 

ELF’s independent expenditures pose no threat of corruption. Its willingness to maintain 

a separate account for its candidate contributions will pose no threat of corruption to candidates. 

The government’s interest is furthered by the narrowly tailored requirement that ELF not make 

transfers between accounts. The FEC’s failure to respond to ELF’s request, to recognize the 

relation between the government’s interest and the remedy of separate accounts, and its failure to 

provide Plaintiffs with a defense to prosecution, place Plaintiffs in harm that can only be cured 

with an injunction. 

An SSF may accept from the corporation or labor organization that serves as its 

connected organization, payments for the SSF’s establishment, administration or solicitation 

costs. 2 U.S.C § 441b(b)(2)(C). Such payments are not “contributions” under the Act and are not 

prohibited. Id. At the time this statutory dispensation was provided to corporations and labor 

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unions, corporate and labor participation in federal elections—both contributions and 

independent expenditures—was strictly prohibited. See Austin v. Michigan Chamber of 

Commerce, 494 U.S. 690 (1995); rev’d in Citizens United v. FEC, 130 S. Ct. 876 (2010). 

Regulators and practitioners are unaccustomed to applying the dispensation to corporate 

administration of SSFs now that corporations may finance independent expenditures. But the 

dispensation only ever included funds to establish an SSF, administer its operating expenses and 

pay for its solicitations. See 2 U.S.C. § 441b(b)(2)(C). Payments “made for the purpose of 

influencing an election,” 2 U.S.C. § 431(8), that is, “contributions” to finance independent 

expenditures were never included in the dispensation and are not included today. Corporate 

contributions to an SSF to finance independent political speech—well beyond mere 

administration—would be considered a “contribution” to the SSF, fully reportable to the public 

by the SSF under 2 U.S.C. §434(a) (political committee reporting). This is made plain by another 

provision in the Act. Exempt from the definition of “contribution” is “any payment” by a 

corporation which, “under section 441b(b) of this title, would not constitute an expenditure by 

such corporation.” 2 U.S.C. § 431(8)(B)(vi)(emphasis added). Funds to make independent 

expenditures plainly would constitute an “expenditure” under the Act. Payments by STI to ELF 

to make independent expenditures would plainly constitute a “contribution,” fully reportable by 

ELF. Nonetheless, STI has no interest in financing independent expenditures, and ELF will not 

solicit STI for funds to ELF’s Carey account to finance independent expenditures. VC ¶ 11. ELF 

will accept funds from STI only to pay the administrative expenses and solicitation costs of its 

Carey account. 

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E. Section 441b(b)(B)(A)(i)’s Restrictions On Solicitations Upheld In National 

Right To Work No Longer Apply To ELF After Citizens United

The FEC may point to FEC v. National Right to Work Committee, 459 U.S. 197 (1982) 

(“NRWC”), to support a prohibition on soliciting contributions to ELF’s Carey account beyond 

the restricted class. 2 U.S.C. § 441b(b)(4). Any reliance on NRWC here drops the relevant 

context. In Citizens United v. FEC, 130 S. Ct. 876 (2010) the Supreme Court rejected the 

premise on which NRWC upheld the solicitation prohibition—namely, a now-rejected ban on 

political participation by corporate entities. 

NRWC involved a challenge to § 441b(b)(4)(A)(i)’s prohibition on a SSFs soliciting 

beyond the membership of its restricted class. NRWC, 459 U.S. at 198. NRWC upheld this 

restriction based upon an anti-distortion rationale. Specifically, the NRWC Court worried that 

“[s]ubstantial aggregations of wealth amassed by the special advantages which go with the 

corporate form [would] be converted into political war chests” if corporate treasury funds were 

not kept from financing independent political speech. National Right to Work Committee, 459 

U.S. at 208. 

Citizens United rejected the anti-distortion interest at the heart of the NRWC opinion and 

held that, “Independent expenditures, including those made by corporations, do not give rise to 

corruption or the appearance of corruption.” 130 S. Ct. at 909 (2010). The Citizens United Court 

specifically addressed and limited NRWC’s holding to restrictions on solicitations for funds that 

would finance direct contributions to candidates. See id. at 909 (NRWC was “no more than . . . a 

restriction on a corporation’s ability to solicit funds for its segregated PAC, which made direct 

contributions to candidates”). ELF’s proposed solicitation of funds into a Carey account to 

finance independent expenditures will not finance candidate contributions. Given Citizens United

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33 

broad approval of corporate political participation and its narrowing of NRWC, the FEC can no 

longer rely on NRWC as authority for § 441b(b)(4)(A)(i)’s prohibition on solicitations beyond 

the restricted class to finance independent expenditures—with the exception of solicitations to 

employees not in the restricted class more than twice annually, a provision not challenged by 

Plaintiffs. 

The EMILY’s List court held that solicitations to finance independent expenditures cannot 

be prohibited under constitutional law. 581 F.3d at 18 (D.C. Cir. 2009). Although contribution 

restrictions for SSFs were not technically before the court in EMILY’s List, Citizens United

eliminates the rationale on which NRWC relies for restricting PAC solicitations: the antidistortion rationale that justified a ban on independent corporate political participation. The 

Citizens United Court also held that the PAC structure, with its $5,000 limit on contributions to 

be received solely from individuals, is an insufficient alternative for corporate speakers. 130 S. 

Ct. at 897 (“PACs [do] not alleviate the First Amendment problems with §441b”). The antidistortion rationale explained in NRWC in 1982 and rejected in Citizens United in 2010 cannot 

be reified to restrict the independent speech of SSFs. Any reliance on NRWC to restrict 

solicitations for independent expenditures to a Carey account must fail. 

II. Plaintiffs Will Suffer Irreparable Harm Without an Injunction 

 “The loss of First Amendment freedoms, for even minimal periods of time, 

unquestionably constitutes irreparable harm.” Elrod v. Burns, 427 U.S. 347, 373 (1976). Under 

the contribution limits of 2 U.S.C. §§ 441a(a)(1)(C) and 441b, ELF cannot solicit and accept 

unlimited contributions in order to conduct independent expenditures. Due to these limits, ELF 

cannot distribute the ads for which it currently has scripts. Plaintiffs are ready, willing, and able 

to contribute the necessary funds, and ELF will distribute those ads if it is legally permitted to 

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34 

accept those funds. VC ¶¶ 56-57. The only thing standing between ELF and its ability to speak 

are the contribution limits contained in 2 U.S.C. §§ 441a(a)(1)(C) and the solicitation restrictions 

of § 441b(a). Plaintiffs’ rights are being impaired now and there is nothing speculative about 

their claims. See Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 301 (D.C. Cir. 

2006) (stating that “[w]here a plaintiff alleges injury from a rule or regulation that directly limits 

speech, the irreparable nature of the harm may be presumed”). That harm is ongoing and 

increases as time passes. Any money that ELF cannot collect now deletes the amount of speech it 

can plan on making in the 2012 general election. 

III. An Injunction Will Not Substantially Injure Others 

 The Supreme Court has made clear that in any conflict between First Amendment rights 

and regulation, courts “must give the benefit of any doubt to protecting rather stifling speech,” 

and that “the tie goes to the speaker, not the censor.” WRTL, 551 U.S. at 469, 474. Thus, while 

the FEC can be said to have an interest in enforcing the campaign finance laws, under the 

Supreme Court’s approach to First Amendment rights in WRTL, the FEC’s interest simply cannot 

trump the First Amendment rights of Plaintiffs. An injunction will not harm the FEC. 

IV. An Injunction Will Further the Public Interest 

The Supreme Court “has long viewed the First Amendment as protecting a marketplace 

for the clash of differing views and conflicting ideas. That concept has been stated and restated 

almost since the Constitution was drafted.” Citizens Against Rent Control, 454 U.S. at 295. 

“Speech is an essential mechanism of democracy, for it is the means to hold officials accountable 

to the people. The right of citizens to inquire, to hear, to speak, and to use information to reach 

consensus is a precondition to enlightened self-government and a necessary means to protect it. 

The First Amendment has its fullest and most urgent application to speech uttered during a 

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35 

campaign for political office.” Citizens United v. FEC at 898 (U.S. 2010) (citations and 

quotations omitted). Plaintiffs wish to participate in the marketplace of ideas by attempting to 

convince citizens to support candidates who share their views and to oppose candidates who do 

not. 

 “[T]here is practically universal agreement that a major purpose of [the First] 

Amendment was to protect the free discussion of governmental affairs ... includ[ing] discussion 

of candidates.” Mills v. Alabama, 384 U.S. 214, 218 (1966). Thus “speech concerning public 

affairs is more than self-expression; it is the essence of self-government.” Garrison v. Louisiana,

379 U.S. 64, 74-75 (1964). “Discussion of public issues and debate on the qualifications of 

candidates are integral to the operation of the system of government established by our 

Constitution.” Buckley v. Valeo, 424 U.S. 1, 14 (U.S. 1976). 

 The First Amendment reflects our “profound national commitment to the principle that 

debate on public issues should be uninhibited, robust, and wide-open.” N.Y. Times v. Sullivan,

376 U.S. 254, 270 (1964). In short, Plaintiffs’ activities are at the core of the First Amendment. 

ELF, and all other SSFs, must be permitted to make independent expenditures out of unlimited 

corporate, union or individual funds, even though it maintains a separate bank account that 

contributes to candidates from amount- and source-restricted funds. Citizens United v. FEC, 130 

S. Ct. 876, 909 (2010) (“[W]e now conclude that independent expenditures, including those 

made by corporations, do not give rise to corruption or the appearance of corruption.”); see also 

Carey v. FEC, 791 F. Supp. 2d. 121 (D.D.C. 2011). And such recognition by this court will 

remedy the injury to plaintiffs’ First Amendment interests. 

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V. Plaintiffs Have Standing to Seek the Injunction 

To establish standing, plaintiffs must demonstrate three elements: (1) an injury in fact, (2) 

a causal connection between the injury and the defendant's conduct, and (3) a likelihood that the 

injury will be redressed by a decision favorable to the plaintiff. See Lujan v. Defenders of 

Wildlife, 504 U.S. 555, 560-61 (1992). An injury in fact is satisfied when plaintiffs make a 

showing of an “an invasion of a legally protected interest which is (a) concrete and 

particularized, and (b) actual or imminent, not conjectural or hypothetical.” Id. at 560. (internal 

quotation marks and citations omitted). Plaintiffs have established an injury in fact capable of 

relief issued by this court. Moreover, there exists a causal connection between the FEC’s failure 

to issue an affirmative advisory opinion and the Plaintiffs’ injuries, and a decision issued by this 

court will redress those injuries. 

Within the context of the First Amendment, the Supreme Court has announced relaxed 

standing requirements for pre-enforcement challenges. See, e.g., Dombrowski v. Pfister, 380 U.S. 

479 (1965) (detailing expanded standing principles for pre-enforcement First Amendment 

challenges); Virginia v. American Booksellers Ass’n, Inc., 484 U.S. 383, 393 (1988) (selfcensorship is a harm that can be alleged without actual prosecution); Chamber of Commerce v. 

FEC, 69 F.3d 600, 603-04 (“A party has standing to challenge, pre-enforcement, even the 

constitutionality of a statute if First Amendment rights are arguably chilled, so long as there is a 

credible threat of prosecution”). Would-be speakers bringing pre-enforcement challenges must 

allege “an intention to engage in a course of conduct arguably affected with a constitutional 

interest,” and illustrate that there exists a “credible threat of prosecution” under the law in 

question. Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298 (1979). In this special 

arena, where a statute on its face “restricts a party from engaging in expressive activity, there is a 

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37 

presumption of a credible threat of prosecution.” Virginia Soc’y for Human Life, Inc. v. FEC, 

263 F.3d 379, 388 (4th Cir. 2001). 

ELF has alleged an “intention to engage in a course of conduct arguably affected with a 

constitutional interest, but proscribed” by law. Babbitt, 442 U.S. at 298. Specifically, ELF has 

prepared independent expenditure advertisements for the upcoming 2012 electoral cycle, but 

cannot solicit and accept contributions to fund them due to the reach of §§ 441a(a)(1)(C) and 

441b(b)(4). ELF would like to establish a non-contribution account (Carey account) in order to 

fundraise and accept contributions for additional independent expenditure campaigns in the 2012 

electoral cycle, but its actions are prohibited just the same. 

ELF must hinder its speech and association until a definitive ruling is issued by this court 

protecting the constitutional rights of ELF, its donors, and STI’s restricted class employees. 

Because federal elections occur every two years, its injuries are ongoing. See Virginia Soc’y, 263 

F.3d at 389 (First Amendment injury is ongoing where it relates to proscribed speech concerning 

federal elections). 

 ELF has established concrete plans to engage in constitutionally protected conduct that is 

subject to the reach of the challenged laws. Its speech and association are chilled by fear of 

prosecution by the FEC. The Commission’s refusal to issue an advisory opinion deprives ELF of 

a legal reliance defense which it could otherwise receive under 2 U.S.C. § 437f(c). See FEC v. 

Nat'l Rifle Ass'n of Am., 254 F.3d 173, 185 (D.C. Cir. 2001) (noting that “advisory opinions have 

binding legal effect on the Commission”). As recognized by the D.C. Circuit Court of Appeals in 

Unity ’08 v. FEC, this failure to issue an advisory opinion “denies a right with consequences 

sufficient to warrant review.” 596 F.3d 861, 865 (D.C. Cir. 2010) (internal quotations omitted). 

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ELF’s only other course of action is to risk enforcement penalties—a jeopardy never permitted 

by the First Amendment.

VI. The Court Should Waive the Bond Requirement Under F.R.C.P. 65(c). 

 Federal Rule of Civil Procedure 65(c) provides that no preliminary injunction shall issue 

without the giving of security by the applicant in an amount determined by the court. However, 

“[i]t is within the Court’s discretion to waive Rule 65(c)’s security requirement where it finds 

such a waiver to be appropriate in the circumstances.” Cobell v. Norton, 225 F.R.D. 41, 50 n.4 

(D.D.C. 2004). In non-commercial cases, courts often waive the bond requirement where the 

likelihood of harm to the non-moving party is slight and the bond requirements would impose a 

significant burden on the moving party. See, e.g., Temple Univ. v. White, 941 F.2d 201, 219 (3d 

Cir. 1991); Comm. on Jobs Candidate Advocacy Fund v. Herrera, 2007 U.S. Dist. LEXIS 73736, 

at *17-*18. Cases raising constitutional issues are particularly appropriate for a waiver of the 

bond requirement. See Odgen v. Marendt, 264 F. Supp. 2d 785, 795 (S.D. Ind. 2003); Smith v. 

Bd. of Election Comm’rs, 591 F. Supp. 70, 71 (N.D. Ill. 1984). Accordingly, Plaintiffs 

respectfully request that the court waive the bond requirement in the event that it grants 

Plaintiffs’ motion for preliminary injunction. 

CONCLUSION 

 For the foregoing reasons, the Court should grant Plaintiffs’ motion for preliminary 

injunction and enjoin the contribution limits contained in 2 U.S.C. §§ 441a(a)(1)(C), the source 

prohibitions at § 441b(a) and the solicitation restrictions at § 441b(b)(4)(A)(i) and applicable 

regulatory requirements as they apply to Plaintiffs. The Court should also waive the bond 

requirement under the Federal Rules of Civil Procedure 65(c). 

Case 1:12-cv-01140-BAH Document 4-1 Filed 07/18/12 Page 44 of 45
39 

 Dated: July 10, 2012 

Respectfully submitted, 

Stephen M. Hoersting* 

 /s/ Dan Backer 

Dan Backer (D.C. Bar No. 996641) 

DB CAPITOL STRATEGIES, PLLC 

209 Pennsylvania Avenue SE, Suite 2109 

Washington, DC 20003 

202. 210.5431 

202. 478.0750 facsimile 

shoersting@dbcapitolstrategies.com

dbacker@dbcapitolstrategies.com

 

Attorneys for Plaintiffs 

 *Motion for Pro Hac Vice to be filed. 

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