No. 08-1977 

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT 

______________________________________________________________ 

THE REAL TRUTH ABOUT OBAMA, INC., Plaintiff-Appellant, 

v. 

FEDERAL ELECTION COMMISSION, et al., Defendants-Appellees. 

______________________________________________________________ 

FEDERAL ELECTION COMMISSION’S OPPOSITION TO 

APPELLANT’S MOTION TO EXPEDITE APPEAL _____________________________________________________________________________________________________________ 

 Appellee Federal Election Commission (“Commission”) opposes the motion 

of appellant The Real Truth About Obama (“RTAO”) to expedite its appeal. 

RTAO challenges regulations that serve compelling government interests, yet its 

claims of First Amendment burdens are false. In any event, any arguable need for 

expedition will be addressed by this Court in the context of RTAO’s motion for an 

injunction pending appeal. 

This appeal raises constitutional challenges to three distinct regulations, each 

of which plays a critical role in the federal campaign finance system. Specifically, 

RTAO raises facial and as-applied constitutional challenges to regulations that: 

(1) explain the meaning of “expressly advocating” the election or defeat of 

candidates, 11 C.F.R. § 100.22; (2) define when donations made in response to 

certain solicitations are “contributions” under the Act, 11 C.F.R. § 100.57; and 

(3) implement the Supreme Court’s decision in FEC v. Wisconsin Right to Life, 

Inc. (“WRTL”), 127 S. Ct. 2652 (2007), 11 C.F.R. § 114.15. RTAO also 

challenges the Commission’s enforcement policy concerning the “major purpose” 
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test established in Buckley v. Valeo, 424 U.S. 1, 79 (1976). Any one of these 

issues would be substantial; indeed, given that RTAO seeks the facial invalidation 

of each regulation, this case potentially implicates a wide array of political 

committees and other organizations, their broadcast advertisements in this and 

future elections, and their disclosures to the public of their campaign spending. 

These regulations serve compelling government interests in preventing corruption 

and are of critical importance to the manner in which the people of the United 

States select their elected officials. 

 RTAO’s purported emergency is of the group’s own making. Although 

RTAO incorporated and filed this lawsuit in July, the challenged regulations have 

been in existence for periods ranging from nine months (11 C.F.R. § 114.15, 

effective December 2007) to more than ten years (11 C.F.R. § 100.22, effective 

July 1995). See also 11 C.F.R. § 100.57 (effective November 2004); Political 

Committee Status, 72 Fed. Reg. 5595 (Feb. 2007). According to RTAO, Senator 

Obama’s views on abortion have been known since at least his tenure in the Illinois 

State Senate, and the date of the 2008 general election has obviously been known 

for much longer. Nonetheless, RTAO waited until late July 2008 to bring this 

action, and then pressed the Commission to litigate and the district court to rule 

with great speed. RTAO asserted before the district court a right to speedy 

preliminary relief under WRTL, and that relief was considered and promptly 
3

denied; nothing in WRTL or any statute provides that further consideration must be 

conducted in a rushed manner.1

 As the Commission noted in its opposition to RTAO’s motion for an 

injunction pending appeal, RTAO does not presently face any irreparable First 

Amendment burdens under the relevant regulatory provisions. RTAO allegedly 

fears that its fundraising and advertising will qualify the organization as a 

“political committee,”2

 but, even accepting this speculative assertion as valid, 

RTAO as a political committee could pay for unlimited independent campaign 

advocacy, including express advocacy and electioneering communications. See 

FEC v. Nat’l Conservative Political Action Comm., 470 U.S. 480 (1985). In other 

words, although RTAO conclusorily alleges that its speech is being chilled, that 

allegation is groundless because FECA imposes no limits on political committees’ 

 

1

 Section 403 of the Bipartisan Campaign Reform Act of 2002, which 

required expedition of certain challenges to the Act, does not apply here. See

Pub. L. 107-155, § 403, 116 Stat. 113 (2002) (uncodified; set out as Judicial 

Review note to 2 U.S.C.A. § 437h) (West 2008). Indeed, even for those BCRA 

challenges that require expedition, Congress nonetheless made clear that it did not 

want to force courts to decide cases in haste, as one of BCRA’s principal Senate 

sponsors stated during floor debate. See 147 Cong. Rec. S3189 (Mar. 30, 2001) 

(statement of Sen. Feingold); see also id. at S3189-90 (statement of Sen. Dodd). 

2

 Under the Federal Election Campaign Act of 1971, 2 U.S.C. §§ 431-55 

(“FECA”), an organization that receives $1,000 in contributions or makes $1,000 

in expenditures in a year is a “political committee.” 2 U.S.C. § 431(4)(A). 

Political committees must register with the Commission and file periodic reports of 

their receipts and disbursements for disclosure to the public. See 2 U.S.C. §§ 433, 

434. No person may contribute more than $5,000 per calendar year to any one 

political committee. 2 U.S.C. § 441a(a)(1)(C). 
4

spending for speech of any kind. Moreover, RTAO has not alleged or shown that 

its fundraising would be harmed by abiding by the $5,000 limit per contributor on 

contributions to political committees, or that it would suffer any reprisals from 

abiding by the reporting requirements for political committees. Thus, RTAO fails 

to make even a rudimentary showing of the type of burden that would justify 

expeditious consideration of its appeal. 

 In any event, RTAO’s request for expedition is unnecessary in light of 

RTAO’s motion for an injunction pending appeal. If it were entitled to emergency 

relief — which it is not — RTAO would obtain such relief through its injunction 

motion that is currently pending and fully briefed before this Court. 

Accordingly, the Court should deny RTAO’s motion to expedite this appeal 

and instead issue a standard briefing and hearing schedule, thereby permitting the 

Commission to present its full defense of the significant provisions of federal law 

at issue here. 

 Respectfully submitted, 

Thomasenia P. Duncan, General Counsel 

 /s/ David Kolker 

David Kolker, Associate General Counsel 

Harry J. Summers, Assistant General Counsel 

Adav Noti, Attorney 

COUNSEL FOR APPELLEE 

FEDERAL ELECTION COMMISSION 

999 E Street NW 

September 26, 2008 Washington, DC 20463
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CERTIFICATE OF SERVICE

I hereby certify that on September 26, 2008, I will electronically file the 

foregoing using the Court’s CM/ECF system, which will then send a notification of 

such filing to the following: 

James Bopp, Jr., jboppjr@aol.com 

Clayton James Callen, ccallen@bopplaw.com 

Richard Eugene Coleson, rcoleson@bopplaw.com 

Eric Fleisig-Greene, eric.fleisig-greene@usdoj.gov 

Debra J. Prillaman, Assistant U.S. Attorney, debra.prillaman@usdoj.gov 

J. Gerald Hebert, ghebert@campaignlegalcenter.org 

And I will cause the foregoing to be mailed by first-class mail to: 

Michael Boos 

Suite 313 

4101 Chain Bridge Road 

Fairfax, VA 22030 

Joseph P. Chamberlain 

Columbia University School of Law 

435 West 116th Street 

New York, NY 10027 

John Allan Love 

University of Virginia School of Law 

580 Massie Road 

Charlottesville, VA 22903-1789 

 /s/ David Kolker 

David Kolker 

COUNSEL FOR APPELLEE 

FEDERAL ELECTION COMMISSION 

999 E Street NW 

Washington, DC 20463