UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF VIRGINIA 

RICHMOND DIVISION 

THE REAL TRUTH ABOUT OBAMA, INC., ) 

 ) 

 Plaintiff, ) 

 ) 

 v. ) No. 3:08-cv-00483-JRS 

 ) 

FEDERAL ELECTION COMMISSION and ) OPPOSITION TO SECOND 

UNITED STATES DEPARTMENT OF ) PRELIMINARY INJUNCTION 

JUSTICE, ) 

 ) 

 Defendants. ) 

DEFENDANT FEDERAL ELECTION COMMISSION’S 

MEMORANDUM IN OPPOSITION TO PLAINTIFF’S 

SECOND PRELIMINARY INJUNCTION MOTION 

 Following the Commission’s demonstration that plaintiff The Real Truth About Obama, 

Inc.’s (“RTAO”) rush to the courthouse was unnecessary, plaintiff has filed a second motion for 

preliminary injunction with new factual allegations in an apparent attempt to address the 

jurisdictional deficiencies of the complaint and initial preliminary injunction motion. Although 

plaintiff’s new draft advertisement is, in fact, a campaign advertisement within the meaning of 

federal campaign finance law, plaintiff still has not demonstrated that it will suffer any 

irreparable harm by complying with reporting requirements and contribution limits during the 

pendency of this action or demonstrated that two of its causes of actions are properly before the 

Court. In any event, the provisions at issue here are constitutional, both as applied to plaintiff’s 

new advertisement and facially. 

I. BACKGROUND 

 The Commission incorporates by reference the factual and legal background set forth in 

the Commission’s opposition to RTAO’s first preliminary injunction motion. (FEC’s Mem. in 

Opp. to Pl.’s Mot. for Prelim. Inj. (“First P.I. Opp.”) at 1-5.) 

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In its second preliminary injunction motion and affidavit, RTAO alleges that it has 

“developed” an advertisement entitled Survivors. (Allen Aff. ¶ 3.) This ad states that Senator 

Barack Obama “has been lying” about his voting history, thereby demonstrating “callousness” 

and “a lack of character and compassion that should give everyone pause.” (Id.) RTAO 

allegedly intends to broadcast Survivors on the radio “in heartland states” during the sixty-day 

period preceding the 2008 general election. (Id. ¶ 4.) Plaintiff’s affidavit does not allege that 

RTAO has taken any concrete steps towards creating or distributing the ad. RTAO also does not 

provide evidence that it has raised or spent any money in relation to its advertising, or that it has 

identified any potential donors or specific donations that it would like to accept to fund its 

activities. 

II. RTAO HAS NOT MET ITS BURDEN FOR A PRELIMINARY INJUNCTION 

 A. Plaintiff Fails To Demonstrate Irreparable Harm 

 As the Commission explained in its first opposition memorandum, RTAO has not met its 

burden of demonstrating that it will suffer irreparable harm without the requested temporary 

relief. (First P.I. Opp. at 8-10.) Plaintiff’s new motion does not strengthen its case. Even 

though the Survivors advertisement is express advocacy, see infra Part II.C.1, the ad would 

trigger political committee status only if RTAO’s major purpose is federal campaign activity. 

Buckley v. Valeo, 424 U.S. 1, 79 (1976); Political Committee Status, 72 Fed. Reg. 5595, 5601 

(Feb. 7, 2007). In turn, even if RTAO were a political committee, there is no evidence in the 

record that RTAO would suffer any irreparable harm were it to comply with the Federal Election 

Campaign Act (“FECA”), 2 U.S.C. §§ 431-55. As a political committee, RTAO could pay 

directly for unlimited express advocacy and electioneering communications, provided that the 

funds used for these activities were contributed by individuals or other political committees in 

increments of $5,000 or less. See 2 U.S.C. § 441a(a)(1)(C),(2)(C). Alternatively, RTAO’s 

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planned activities would be permissible if funded from a “separate segregated fund” established 

and maintained by RTAO and comprising contributions made by individuals at or under the 

$5,000 limit. See 2 U.S.C. §§ 441b(b)(2)(C), 431(4)(b), 441a(a)(1)(C). RTAO’s complaint and 

affidavits do not allege that RTAO intends to accept corporate contributions or contributions 

from individuals in excess of $5,000, or that it would suffer burdensome reprisals against its 

members if it were to comply with the Act’s reporting requirements while this action is pending.1 

(See First P.I. Opp. at 9). Thus, RTAO has entirely failed to meet its burden of establishing that 

actual, irreparable harm will ensue absent a preliminary injunction. RTAO’s failure is fatal to its 

motion for preliminary injunction. (Id. at 8-10). 

B. The Balance Of Harms Weighs In Favor Of The Commission

 For the reasons set forth in the Commission’s first opposition memorandum (First P.I. 

Opp. at 10-11), the balance of harms weighs against entry of a preliminary injunction. 

C. RTAO Is Unlikely To Succeed On The Merits 

1. RTAO Is Not Likely To Succeed On The Merits Of Its Challenge To 

The Definition Of Express Advocacy In 11 C.F.R. § 100.22(b) 

 RTAO alleges that the Commission’s regulatory definition of express advocacy, 

11 C.F.R. § 100.22(b), is unconstitutionally overbroad — both facially and as applied to RTAO’s 

Survivors ad — and unconstitutionally vague on its face. “[A] plaintiff can only succeed in a 

facial challenge by ‘establish[ing] that no set of circumstances exists under which the Act would 

be valid,’ i.e., that the law is unconstitutional in all of its applications,” Wash. State Grange v. 

 

1

 In its reply brief in support of its first preliminary injunction motion, RTAO states that it 

has “received” a $10,000 donation from an individual. (Pl.’s Reply in Supp. of Prelim. Inj. Mot. 

at 20.) Such an assertion in a brief — unsupported by RTAO’s verified complaint or any of its 

affidavits — is not evidence. Regardless, RTAO has not shown that retaining only $5,000 of this 

alleged $10,000 donation would affect the organization’s ability to advertise, or, more generally, 

that RTAO is unable to raise sufficient funds within the permissible limits. 

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Wash. State Republican Party, 128 S. Ct. 1184, 1190 (2008) (quoting United States v. Salerno,

481 U.S. 739 (1987)), or, at a minimum, that the regulations apply to a substantial amount of 

protected speech and a substantial amount relative to legitimate applications of the statute (see 

First P.I. Opp. at 11). 

The Commission’s application of section 100.22(b) to the advertisements at issue in this 

case demonstrates the precision of the regulatory definition of express advocacy, as well as the 

care that the Commission takes in narrowly applying it. In its first opposition memorandum, the 

Commission explained why RTAO’s Change ad is not express advocacy under section 

100.22(b). Specifically, that ad is not express advocacy because, inter alia: 

(1) a reasonable person could conclude that the ad encouraged listeners to seek 

information regarding Senator Obama’s position on abortion; 

(2) the ad was devoted to speech regarding abortion as a public policy issue; 

(3) the ad contained only indirect and oblique references to the presidential 

campaign; and 

(4) the ad did not question Senator Obama’s leadership qualities. 

(See First P.I. Opp. at 12 & n.5.) The Commission then noted that the lack of any express 

advocacy in this case at that time rendered RTAO’s challenge to the regulation nonjusticiable. 

(Id. at 6, 12-13.) 

In response, RTAO now seeks to establish Article III jurisdiction by “develop[ing]” an 

advertisement that falls within the definition of 11 C.F.R. § 100.22(b). (See Allen Aff. ¶ 3.) 

Indeed, the new ad does contain express advocacy, including almost all of the elements of 

express advocacy that the Commission noted were absent from Change. First, Survivors directly 

criticizes Senator Obama’s character, saying that he has demonstrated “callousness” and “a lack 

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of character and compassion.” These character attacks are precisely what the Supreme Court has 

called “indicia of express advocacy.” See FEC v. Wisconsin Right to Life, Inc., 127 S. Ct. 2652, 

2667 (2007) (“WRTL”) (holding that “indicia of express advocacy” includes “tak[ing] a position 

on a candidate’s character, qualifications, or fitness for office”).2

 Second, Survivors says that 

Senator Obama “has been lying” for years — another statement that attacks the candidate 

personally. Third, to the extent that Survivors mentions abortion as an issue, it explicitly 

characterizes Obama’s alleged voting record as “horrendous” and uses it as evidence for the ad’s 

ultimate conclusion regarding Senator Obama’s “callousness” and “lack of character and 

compassion.” This is in contrast with Change, which contained no explicit characterizations of 

the positions on abortion-related issues attributed to Senator Obama and did not use the 

referenced positions to attack his character overtly. Fourth, Survivors does not implore listeners 

to take action relative to any public policy on abortion, nor does it refer them to a source of 

additional information on such policies. Finally, and most importantly, Survivors says that 

“Obama’s callousness . . . reveals a lack of character and compassion that should give everyone 

pause” (emphasis added). Because the ad makes no appeal for action on any public policy, and 

because the phrase “give pause” is explicitly linked to Senator Obama’s character, there is only 

one reasonable interpretation of that phrase: “Everyone” should “pause” before voting for 

Senator Obama, who “lack[s] character and compassion” and “has been lying.” To ask listeners 

to defer action or hesitate before supporting a candidate is to expressly advocate against that 

candidate. Indeed, the ad’s use of the word “everyone” emphasizes not only that abortion 

opponents should reject Senator Obama because of his “horrendous” views, but also that 

 

2

 Like Change, Survivors refers to Senator Obama’s political party, which is another mark 

of express advocacy. WRTL, 127 S. Ct. at 2667 (“mention[ing] an election, candidacy, political 

party, or challenger”). 

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“everyone,” regardless of his or her position on abortion, should hesitate because Senator Obama 

has demonstrated various character flaws. Thus, “[w]hen taken as a whole,” “[r]easonable minds 

could not differ as to whether” Survivors encourages listeners not to vote for Senator Obama. 

RTAO’s new ad is therefore express advocacy under section 100.22(b) and can constitutionally 

be regulated as a campaign expenditure. 

The Commission also incorporates here its prior response to RTAO’s facial overbreadth 

and vagueness challenges. (First P.I. Opp. at 13-17.) RTAO’s supplemental advertisement 

demonstrates neither overbreadth nor vagueness of section 100.22(b), and the regulation is 

entirely consistent with Buckley, McConnell v. FEC, 540 U.S. 93 (2003), and WRTL. In addition 

to the reasons discussed in the Commission’s prior memorandum, the Commission’s analysis of 

Change and Survivors acutely demonstrates why the regulation is neither overbroad nor vague. 

The Change ad contained nuanced text that was subject to multiple interpretations, and the 

Commission therefore analyzed the ad in accordance with its regulation to ensure that if 

reasonable minds could differ about whether the ad encourages an electoral result, then it is not 

express advocacy. In contrast, the Survivors ad is “unmistakable” and “unambiguous,” 

containing the express advocacy that Change omitted. In other words, the Commission applies 

the same regulatory criteria to both ads but reaches different results because of the distinct 

elements of their texts. There is no vagueness here, and the Commission’s narrow application of 

its regulation is fully consistent with WRTL’s teaching that any “tie goes to the speaker,” WRTL, 

127 S. Ct. at 2669. RTAO, like all other advertisers, can determine from the regulation and the 

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Commission’s precedent whether a given communication is or is not express advocacy. (See

First P.I. Opp. at 17 n.8.)3

2. RTAO Is Not Likely To Succeed On The Merits Of Its Challenge To 

11 C.F.R. § 114.15 

 For substantially the same reasons that Survivors is express advocacy under 11 C.F.R. 

§ 100.22(b), it also qualifies as the functional equivalent of express advocacy under 11 C.F.R. 

§ 114.15(a). See supra Part II.C.1. Specifically, the ad contains multiple indicia of express 

advocacy (i.e., repeated critiques of a candidate’s character, as well as a reference to the 

candidate’s political party), and it lacks the indicia of a “genuine issue ad” because it does not 

“focus on a legislative issue, take a position on the issue, exhort the public to adopt that position, 

[or] urge the public to contact public officials with respect to the matter.” WRTL, 127 S. Ct. at 

2667; 11 C.F.R. § 114.15(c). Indeed, the ad explicitly “condemn[s Senator Obama’s] record on 

a particular issue,” the precise distinction that Chief Justice Roberts drew between the ads at 

issue in WRTL and the hypothetical Jane Doe ad that formed part of the holding in McConnell. 

See WRTL, 127 S. Ct. at 2667 n.6. RTAO’s ad “is susceptible of no reasonable interpretation 

other than as an appeal to vote . . . against a specific candidate.” WRTL, 127 S. Ct. at 2667; 

11 C.F.R. § 114.15(c). 

 

3

 Advertisers have the option of requesting an advisory opinion from the Commission as to 

any given communication. 2 U.S.C. § 437f(a). The Commission is required by law to respond 

to such a request within sixty days. 2 U.S.C. § 437f(a)(1). When necessary, the Commission 

expedites its response to an urgent request for an advisory opinion, providing an answer in well 

under sixty days. See, e.g., FEC Advisory Opinion 2006-16, 

http://saos.nictusa.com/aodocs/2006-16.pdf (May 10, 2006) (issued in 16 days); FEC Advisory 

Opinion 2007-03, http://saos.nictusa.com/aodocs/2007-03.pdf (Mar. 1, 2007) (issued in 28 days); 

FEC Advisory Opinion 2008-09, http://saos.nictusa.com/aodocs/AO 2008-09 final.pdf (Aug 21, 

2008) (issued in 27 days); see also Press Release, FEC Releases Draft Advisory Opinion Under 

Expedited Process (May 4, 2006), http://www.fec.gov/press/press2006/20060504detertao.html 

(explaining expedited process for issuance of an advisory opinion). 

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Because Survivors satisfies the test for the functional equivalence of express advocacy 

under WRTL, the application of FECA’s corporate financing restrictions to the ad is 

constitutional. See WRTL, 127 S. Ct. at 2664 (“[FECA] survives strict scrutiny to the extent it 

regulates express advocacy or its functional equivalent.”). And because the Commission’s 

regulatory criteria for making this determination are essentially identical to the language of 

WRTL itself, section 114.15 is neither vague nor overbroad on its face. (See First P.I. Opp. 

at 28-30.) 

3. RTAO Is Not Likely To Succeed On The Merits Of Its Challenge To 

The Regulation Regarding Solicitations Or The Commission’s 

Analysis Of Political Committee Status

 Although RTAO now allegedly intends to make more than $1,000 in expenditures, thus 

meeting one of the statutory criteria for “political committee,” 2 U.S.C. § 431(4)(A), RTAO still 

has not shown that there is any final agency action regarding political committee status under 

review here. The Administrative Procedure Act does not provide for judicial review of the 

principles discussed in the Commission’s explanation of its decision not to promulgate a 

regulation broadly defining political committee status (see First P.I. Opp. at 23-24), and, in any 

event, the Commission’s approach to enforcement is constitutional and properly within the 

Commission’s discretion (id. at 24-26). 

Plaintiff’s complaint and first preliminary injunction motion also challenged a 

Commission regulation governing solicitations, 11 C.F.R. § 100.57(a). This regulation is not 

directly implicated by RTAO’s second preliminary injunction motion, and so it remains 

nonjusticiable for the reasons stated in the Commission’s first opposition memorandum. (First 

P.I. Opp. at 18.) 

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III. CONCLUSION 

For the foregoing reasons, RTAO’s second motion for preliminary injunction should be 

denied. 

Respectfully submitted, 

 /s/ 

Audra Hale-Maddox, Attorney, ahale-maddox@fec.gov 

VA Bar No. 46929 

Thomasenia P. Duncan,* General Counsel, tduncan@fec.gov 

David B. Kolker,* Associate General Counsel, dkolker@fec.gov 

Kevin Deeley,* Assistant General Counsel, kdeeley@fec.gov 

Harry Summers,* Assistant General Counsel, hsummers@fec.gov 

Adav Noti,* Attorney, anoti@fec.gov 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street NW 

Washington, DC 20463 

Telephone: (202) 694-1650 

Fax: (202) 219-0260 

* pro hac vice

September 5, 2008 

Case 3:08-cv-00483-JRS Document 56 Filed 09/05/2008 Page 9 of 10
CERTIFICATE OF SERVICE

I hereby certify that on the 5th day of September, 2008, I will electronically file the 

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

of such filing (NEF) to the following: 

Michael Boos, michael.boos@gte.net 

Attorney & Counselor at Law 

4101 Chain Bridge Road, Suite 313 

Fairfax, VA 22030 

James Bopp, Jr., jboppjr@aol.com 

Barry Alan Bostrom, bbostrom@bopplaw.com 

Clayton James Callen, ccallen@bopplaw.com 

Richard Eugene Coleson, rcoleson@bopplaw.com 

Bopp, Coleson and Bostrom 

1 South 6th St. 

Terre Haute, IN 47807-3510 

John Richard Griffiths, john.griffiths@usdoj.gov 

United States Department of Justice 

Civil Division, Federal Programs Branch 

Post Office Box 883 

Washington, DC 20044 

Debra Jean Prillaman, debra.prillaman@usdoj.gov 

Office Of The U.S. Attorney 

600 East Main Street, Suite 1800 

Richmond, VA 23219 

 /s/ 

Audra Hale-Maddox 

VA Bar No. 46929 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street NW 

Washington, DC 20463 

Telephone: (202) 694-1650 

Fax: (202) 219-0260 

ahale-maddox@fec.gov 

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