No. 

In The

Supreme Court of the United States

____________

The Real Truth About Obama, Inc., Petitioner

v.

Federal Election Commission and

United States Department of Justice

____________

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Fourth Circuit

 ____________

Petition for a Writ of Certiorari

____________

Michael Boos

LAW OFFICE OF MICHAEL

BOOS

Suite 313

4101 Chain Bridge Road

Fairfax, VA 22030

703/691-7717

703-691-7543 (facsimile)

James Bopp, Jr.

 Counsel of Record

Richard E. Coleson

Kaylan L. Phillips

BOPP, COLESON &

BOSTROM

1 South 6th Street

Terre Haute, IN 47807

812/232-2434

812/235-3685 (facsimile)

Counsel for Petitioner
Questions Presented

1. Whether the district court abused its discretion

by applying improper legal standards to deny a preliminary injunction permitting The Real Truth About

Obama, Inc. (“RTAO”) to engage in issue advocacy

concerning the positions of a public figure on issues in

public debate.

2. Whether the First Amendment requires speechprotective preliminary-injunction standards for issue

advocacy.

3. Whether RTAO had likely success on the merits

(and so met the other preliminary-injunction standards) because the following provisions violate the

First Amendment, Fifth Amendment, and/or exceed

statutory authority:

a. 11 C.F.R. § 100.22(b) ( Federal Election Commission’s (“FEC”) non-“magic words” “express advocacy” definition);

b. 11 C.F.R. § 100.57 (FEC’s rule treating all of a

donation as a regulable “contribution” if made in

response to a communication “indicat[ing] that

any portion . . . will be used to support or oppose

the election of a . . . federal candidate”);

c. FEC’s enforcement policy for imposing “political

committee” status based on activity other than

regulable election-related activity; and

d. 11 C.F.R. § 114.15 (FEC’s test for determining

regulable “electioneering communications” that

purports to implement the “appeal to vote” test

of FEC v. Wisconsin Right to Life, 551 U.S. 449,

469-70 (2007) (Roberts, C.J., joined by Alito, J.),

but makes that test merely part of FEC’s test).

(i)
Corporate Disclosure

The Real Truth About Obama, Inc. has no parent

corporation and is a nonstock corporation, so no

publicly held company owns ten percent or more of its

stock.

(ii)
Table of Contents

Questions Presented . . . . . . . . . . . . . . . . . . . . . . . . (i)

Corporate Disclosure . . . . . . . . . . . . . . . . . . . . . . . (ii)

Appendix Contents . . . . . . . . . . . . . . . . . . . . . . . . (vi)

Table of Authorities . . . . . . . . . . . . . . . . . . . . . . (vii)

Petition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Opinions Below . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Constitution, Statutes & Regulations . . . . . . . . . . . 1

Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Reasons to Grant the Petition . . . . . . . . . . . . . . . . . 7

I. This Case Involves a Matter of Great National Importance. . . . . . . . . . . . . . . . . . . . . . 7

II. The Appellate Court’s Preliminary-Injunction Standard Conflicts With This Court’s

Decisions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

A. The Appellate Court Misinterpreted

Winter. ............................8

B. The Courts Below Did Not Require the

Burden to Follow the Merits Burden. . . 10

(iii)
C. Speech-Protective Standards Apply to

Preliminary Injunctions Involving Issue

Advocacy. . . . . . . . . . . . . . . . . . . . . . . . . . 11

1. Preliminary Injunction Denials Effectively Decide Time-Sensitive Speech

Cases. . . . . . . . . . . . . . . . . . . . . . . . . . 11

2. This Case Should Be Accepted to Establish Speech-Protective Preliminary-Injunction Tests and Interests. 12

III. The Holding Below on Likely Success Conflicts With Decisions of This and Other

Courts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

A. Section 100.22(b): “Express Advocacy”

Requires “Magic Words.” . . . . . . . . . . . . 15

1. The Holding Conflicts With Other

Circuit Decisions. . . . . . . . . . . . . . . . . 15

2. The Holding Conflicts With This

Court’s Decisions. . . . . . . . . . . . . . . . 16

3. The Lower Court’s Justification Is

Flawed. . . . . . . . . . . . . . . . . . . . . . . . . 17

B. Section 100.57: Donations May Not Be

Deemed “Contributions” Under Vague,

Overbroad Standards. . . . . . . . . . . . . . . . 18

1. The Holding Conflicts With Other

Circuit Decisions. . . . . . . . . . . . . . . . . 19

(iv)
2. The Holding Conflicts With This

Court’s Decisions. . . . . . . . . . . . . . . . 20

3. The Lower Court’s Justification Is

Flawed. . . . . . . . . . . . . . . . . . . . . . . . . 21

C. PAC Status May Only Be Imposed on

Groups With the Primary Purpose of

Regulable, Campaign-Related Activity. . 22

1. The Holding Conflicts With Other

Circuit Decisions. . . . . . . . . . . . . . . . . 23

2. The Holding Conflicts With Decisions

of This Court. . . . . . . . . . . . . . . . . . . . 26

3. The Court’s Justification Is Erroneous. . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

D. WRTL-II’s “Appeal to Vote” Test for Regulable “Electioneering Communications”

May Not Be Demoted to a Mere Part of

FEC’s Test. . . . . . . . . . . . . . . . . . . . . . . . 28

E. This Court Restricts Campaign-Finance

Regulation to “Unambiguously Campaign

Related” Activity. . . . . . . . . . . . . . . . . . . 30

1. The Decision Below Conflicts With

Other Circuit Decisions. . . . . . . . . . . 31

2. The Decision Below Conflicts With

This Court’s Decisions. . . . . . . . . . . . 31

(v)
IV. RTAO Had Irreparable Harm And Met the

Other Preliminary-Injunction Elements. . . 33

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Appendix Contents

Opinion below, Real Truth About Obama v. FEC,

575 F.3d 342 (4th Cir. 2009) (filed August 5,

2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1a

Judgment below (filed August 5, 2009) . . . . . . . . 18a

District Court opinion on motion for preliminary

injunction (No. 3:08-CV-483) (filed September

24, 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19a

District Court order (filed September 11, 2008) . 54a

Fourth Circuit order denying rehearing (filed

October 6, 2009) . . . . . . . . . . . . . . . . . . . . . . . . 56a

U.S. Const. amend I . . . . . . . . . . . . . . . . . . . . . . . 57a

U.S. Const. amend V . . . . . . . . . . . . . . . . . . . . . . . 57a

2 U.S.C. § 431(17) . . . . . . . . . . . . . . . . . . . . . . . . . 57a

11 C.F.R. § 100.16(a) . . . . . . . . . . . . . . . . . . . . . . . 58a

11 C.F.R. § 100.22 . . . . . . . . . . . . . . . . . . . . . . . . . 58a

11 C.F.R. § 100.57(a) . . . . . . . . . . . . . . . . . . . . . . . 59a

11 C.F.R. § 114.15 . . . . . . . . . . . . . . . . . . . . . . . . . 59a

(vi)
Table of Authorities

Cases

Alaska Right to Life Committee v. Miles, 441 F.3d

773 (9th Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . 26

American Civil Liberties Union of Nevada v. Heller,

378 F.3d 979 (9th Cir. 2004) . . . . . . . . . . . . . . . 16

Anderson v. Spear, 356 F.3d 651 (6th Cir. 2004) . . 15

Ashcroft v. ACLU, 542 U.S. 656 (2004) . . . . . . . . . 10

Broward Coal. of Condos., Homeowners Ass’ns &

Cmty. Orgs., Inc. v. Browning, No. 08-445, 2009

WL 1457972 (N.D. Fla. May 22, 2009) . . . . . . . 31

Brownsburg Area Patrons Affecting Change v.

Baldwin, 714 N.E. 2d 135 (Ind. 1999) . . . . . . . . 16

Brownsburg Area Patrons Affecting Change v.

Baldwin, 137 F.3d 503 (7th Cir. 1998) . . . . . . . 16

Buckley v. Valeo, 424 U.S. 1 (1976) . . 3, 7, 8, 13, 15-

18, 20, 21, 24, 31, 32

California Pro-Life Council v. Getman, 328 F.3d 1088

(9th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 26

Center for Individual Freedom v. Carmouche, 449

F.3d 655 (5th Cir. 2006) . . . . . . . . . . . . . . . . . . . 16

Chaplaincy of Full Gospel Churches v. England,

454 F.3d 290 (D.C. Cir. 2006) . . . . . . . . . . . . . . 33

(vii)
Citizens United v. FEC (No. 08-205) ............1

Colorado Right to Life Committee v. Coffman, 498

F.3d 1137 (10th Cir. 2007) . . . . . . . . . . . . . . 24, 25

Ctr. for Individual Freedom, Inc. v. Ireland, 613 F.

Supp.2d 777 (S.D. W.Va. 2009) . . . . . . . . . . . . . 31

Ctr. for Individual Freedom, Inc. v. Ireland, Nos.

08-190 & 08-1133, 2008 WL 4642268 (S.D. W.

Va. Oct. 17, 2008) . . . . . . . . . . . . . . . . . . . . . . . . 11

Elrod v. Burns, 427 U.S. 347 (1976) . . . . . . . . . . . . 33

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

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 20

Faucher v. FEC, 928 F.2d 468 (1st Cir. 1991) . . . . 15

FEC v. Central Long Island Tax Reform, 616 F.2d

45 (2d Cir.1980) . . . . . . . . . . . . . . . . . . . . . . . . . 15

FEC v. Christian Action Network, 110 F.3d 1049

(4th Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . 15

FEC v. Faucher (No. 90-1923) . . . . . . . . . . . . . . . . 32

FEC v. Florida for Kennedy Comm., 681 F.2d 1281

(11th Cir. 1982) . . . . . . . . . . . . . . . . . . . . . . . . . 31

FEC v. Furgatch, 807 F.2d 857 (9th Cir. 1987) . . 16,

31

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

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 25

FEC v. Machinists Non-Partisan Political League,

655 F.2d 380 (D.C. Cir. 1981) . . . . . . . . . . . 25, 31

FEC v. Massachusetts Citizens for Life, 479 U.S.

238 (1986) . . . . . . . . . . . . . . 3, 7, 8, 16, 18, 24-27

FEC v. Survival Education Fund, 65 F.3d 285 (2d

Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

FEC v. Wisconsin Right to Life, 551 U.S. 449 (2007)

. . . . . . . . . . . . . (i), 5, 7-14, 17, 19, 21, 28, 29, 32

Florida Right to Life v. Lamar, 238 F.3d 1288 (11th

Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 25

Florida Right to Life v. Mortham, No. 98-

770CIVORL19A, 1999 WL 33204523 (M.D. Fla.

Dec. 15, 1999) . . . . . . . . . . . . . . . . . . . . . . . 24, 25

Gonzales v. O Centro Espirita Beneficente Uniao do

Vegetal, 546 U.S. 418 (2006) . . . . . . . . . . . . 10, 11

Iowa Right to Life Committee v. Williams, 187 F.3d

963 (8th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . 16

Mazureck v. Armstrong, 520 U.S. 968 (1997) . . . . . 10

McConnell v. FEC, 540 U.S. 93 (2003) . . 7, 16, 17, 32

(ix)
National Right to Work Legal Def. & Educ. Found.,

Inc. v. Herbert, 581 F. Supp.2d 1132 (D. Utah

2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

New York Civil Liberties Union v. Acito, 459 F.

Supp. 75 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . 25

North Carolina Right to Life v. Bartlett, 168 F.3d

705 (4th Cir. 1999) . . . . . . . . . . . . . . . . . . . . 24, 25

North Carolina Right to Life v. Leake, 525 F.3d 274

(4th Cir. 2008) . . . . . . . . . 9, 21, 23, 25, 27, 30-32

Osterberg v. Peca, 12 S.W. 3d 31 (Tex. 2000) . . . . . 16

Richey v. Tyson, 120 F. Supp. 2d 1298 (S.D. Ala.

2000 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . )25

Right to Life of Duchess County v. FEC, 6 F. Supp.

2d 248 (S.D. N.Y. 1998) . . . . . . . . . . . . . . . . . . . 15

RTAO v. FEC, 575 F.3d 342 (4th Cir. 2009) ......1

Summum v. Pleasant Grove City, 483 F.3d 1044

(10th Cir. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . 33

Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622 (1994)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

United States v. National Comm. for Impeachment,

469 F.2d 1135 (2d Cir. 1972) . . . . . . . . . . . . . . . 25

United States v. Playboy Entm’t Group, Inc., 529

U.S. 803 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . 10

(x)
Virginia Society for Human Life v. FEC, 263 F.3d

379 (4th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . 15

Volle v. Webster, 69 F. Supp. 2d 171 (D. Me. 1999)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Winter v. Natural Resources Defense Council, 129 S.

Ct. 365 (2008) ............................9

Constitutions, Statutes, Regulations & Rules

U.S. Const. amend. I . . . . . . . . . . . . . . . . . . . . passim

U.S. Const. amend. V . . . . . . . . . . . . . . . . . . . . . . . . 1

2 U.S.C. § 431 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

2 U.S.C. § 431(17) . . . . . . . . . . . . . . . . . . . . . . 1-3, 18

2 U.S.C. § 431(4) . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 8

2 U.S.C. § 431(8)(A)(i) . . . . . . . . . . . . . . . . . . . . . . . 20

2 U.S.C. § 431(9) . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

2 U.S.C. § 434(f)(3) . . . . . . . . . . . . . . . . . . . . . . . 4, 28

2 U.S.C. § 441b . . . . . . . . . . . . . . . . . . 3, 5, 18, 27, 30

2 U.S.C. § 441b(2)(c) . . . . . . . . . . . . . . . . . . . . . . . . 27

26 U.S.C. § 527 . . . . . . . . . . . . . . . . . . . . . 2, 4, 22, 23

28 U.S.C. § 1292(a)(1) ........................7

(xi)
28 U.S.C. § 1331 ............................7

5 U.S.C. § 706 . . . . . . . . . . . . . . . . . . 2, 18, 22, 28, 30

N.C. Gen. Stat. § 163-278.14A(a) (2007) . . . . . . . . 21

11 C.F.R. § 100.16(a) .........................1

11 C.F.R. § 100.22 . . . . (i), 1, 4-6, 8, 15-18, 21-22, 33

11 C.F.R. § 100.57 . . . . . . . . . . . . . . (i), 1, 18, 20-21

11 C.F.R. § 114.4 ............................3

11 C.F.R. § 114.15 . . . . . . . . . . . (i), 2, 5, 6, 28-30, 33

Other Authorities

Brief for Intervenor-Defendants Senator John

McCain et al., McConnell, 540 U.S. 93 . . . . . . . 32

FEC Advisory Opinion 2005-13 (EMILY’s List) . . . 4

FEC, “Internet Communications,” 71 Fed. Reg.

18589 (Apr. 12, 2006) ......................3

FEC, “Political Committee Status . . . ,” 69 Fed.

Reg. 68056 (Nov. 23, 2004) . . . . . . . . . . . . . . 4, 22

FEC, “Political Committee Status,” 72 Fed. Reg.

5595 (Feb. 7, 2007) . . . . . . . . . . . . . . . . 3, 4, 23, 26

Edward B. Foley, The “Major Purpose” Test: Distinguishing Between Election-Focused and IssueFocused Groups, 31 N. Ky. L. Rev. 341 (2004) . 26

(xii)
Petition1

RTAO requests certiorari review of RTAO v. FEC,

575 F.3d 342 (4th Cir. 2009).

Opinions Below

The order denying rehearing en banc (App. 56a) is

unreported. The opinion affirming the district court

(App. 1a) is reported at 575 F.3d 342. The district

court’s order denying a preliminary injunction (App.

54a) is unreported. The district court’s opinion denying

a preliminary injunction (App. 19a) is reported at

RTAO v. FEC, No. 08-483, 2008 WL 4416282 (Aug. 5,

2009).

Jurisdiction

The appellate court’s opinion (App. 1a) and judgment (App. 18a) were filed August 5, 2009. RTAO filed

a timely petition for rehearing en banc on August 17,

2009. The appellate court’s order denying rehearing en

banc (App. 56a) was entered October 6, 2009. Jurisdiction is invoked under 28 U.S.C. § 1254(1).

Constitution, Statutes & Regulations

Appended are: First Amendment (App. 57a); Fifth

Amendment (App. 57a); 2 U.S.C. § 431(17) (App. 57a);

11 C.F.R. § 100.16(a) (App. 58a); 11 C.F.R. § 100.22

(App. 58a); 11 C.F.R. § 100.57(a) (App. 59a); 11 C.F.R.

§ 114.15 (App. 59a).

Case

This case involves a pre-enforcement, as-applied

1

 As this petition goes to the printer, Citizens United v. FEC

(No. 08-205) remains undecided. Citizens may affect this case.
2

and facial challenge to an FEC policy and three regulations that restrict RTAO’s issue advocacy.

RTAO filed suit July 30, 2008, moving for preliminary injunction regarding Change (App. 20a), an ad it

intended to post on its website and broadcast, and a

fundraising solicitation (App. 22a). On August 20,

RTAO filed another preliminary injunction motion

regarding Survivors (App. 21a), an ad it intended to

post on its website and broadcast.

 RTAO sought judgment (a) declaring 11 C.F.R.

§§ 100.22(b), 100.57, and 114.15 and FEC’s policy for

determining “political committee” (“PAC”) status

unconstitutional for vagueness and overbreadth (under

the First and Fifth Amendments) and beyond statutory

authority; (b) declaring the regulations and policy void

under the Administrative Procedure Act (“APA”), 5

U.S.C. § 706; and (c) preliminarily and permanently

enjoining enforcement of the regulations and policy,

facially and as applied to RTAO and its activities.

RTAO is a nonstock, nonprofit, Virginia corporation, with its principal place of business in Richmond,

Virginia. FEC is the federal government agency with

enforcement authority over the Federal Election

Campaign Act (“FECA”), 2 U.S.C. § 431 et seq. FEC

promulgated the regulations and policy at issue. The

Department of Justice (“DOJ”) is an executive department of the federal government that controls criminal

prosecutions and civil suits in which the United States

has an interest. (Compl. ¶¶ 5-7.)

RTAO was incorporated in July 2008. It is nonprofit

under 26 U.S.C. § 527, i.e., it is a “political organization” that may receive donations and make disbursements for political purposes without paying corporate

income taxes. RTAO is an issue-advocacy 527. (Compl.
3

¶¶ 8-9.)

RTAO is not a FECA “political committee” because

none of its communications will qualify as either a

“contribution” or “expenditure” aggregating more than

$1,000 during a calendar year, the trigger requirement

under 2 U.S.C. § 431(4) (PAC definition). Under its

organic documents, RTAO may not engage in the

“express advocacy” that would make a communication

a regulable “independent expenditure” under 2 U.S.C.

§ 431(17). RTAO is also not properly a PAC because,

even if it were to reach the $1,000 trigger, it does not

meet the major-purpose test. See Buckley v. Valeo, 424

U.S. 1, 79 (1976); FEC v. Massachusetts Citizens for

Life, 479 U.S. 238, 253 (1986) (“MCFL”). (Compl.

¶¶ 10-11.)

However, RTAO had a reasonable belief that it

would be deemed a PAC by FEC because of (a) FEC’s

recent use of 11 C.F.R. §§ 100.22(b) and 100.57 and

other elements of FEC’s PAC-status enforcement

policy, see FEC, “Political Committee Status,” 72 Fed.

Reg. 5595 (Feb. 7, 2007) (“PAC-Status 2”), to declare

527s PACs, id. at 5605, and (b) the similarity of RTAO

and its intended activities to organizations identified

in PAC-Status 2. (Compl. ¶ 13.)

As a corporation, RTAO may not make “independent expenditures,” 2 U.S.C. § 431(17) (definition); 2

U.S.C. § 441b(a) (prohibition). This express-advocacy

prohibition extends to websites and emails. See FEC,

“Internet Communications,” 71 Fed. Reg. 18589 (Apr.

12, 2006); 11 C.F.R. § 114.4.

RTAO intended to provide accurate and truthful

information about then-Senator Obama’s public-policy

positions on a website and produce audio ads, Change

and Survivors, and place them on its website and
4

broadcast them within sixty days before the 2008

general election, so they would have been “electioneering communications,” 2 U.S.C. § 434(f)(3). RTAO intended to create digital postcards setting out Senator

Obama’s public-policy positions on abortion, and

website viewers could have sent them to friends. One

would have been like Change but in first person and

“signed” by “Barack Obamabortion.” (Compl. ¶¶ 16-19.)

To fund its activities, RTAO needed to solicit

potential donors. One planned means was a fundraising communication. RTAO intended to raise over

$1,000 with this communication and disburse over

$1,000 to broadcast the ads and put them on the

website. (Compl. ¶ 20.)

RTAO was chilled from proceeding by a reasonable

belief that it would be subject to investigation and

possible enforcement action potentially resulting in

civil and criminal penalties, based on the fact that FEC

has deemed 527s to be PACs based on 11 C.F.R.

§§ 100.22(b) and 100.57 and FEC’s PAC-status policy

See FEC, “Political Committee Status . . . ,” 69 Fed.

Reg. 68056 (Nov. 23, 2004) (“PAC-Status 1”); PACStatus 2, 72 Fed. Reg. 5595. (Compl. ¶ 22.)

RTAO was also chilled from proceeding because, if

it were later deemed to have been a PAC while doing

its activities, it would have violated FECA for not

using “federal funds” (funds raised subject to federal

source-and-amount restrictions) for the fundraising

communication, see FEC Advisory Opinion 2005-13 at

1 (EMILY’s List). (Compl. ¶ 23.)

RTAO’s chill was heightened by DOJ’s declaration

that investigations and criminal prosecutions of

“knowing and willful” violations of these FECA provisions by 527 corporations was a priority. (Compl. ¶ 24.)
5

Consequently, RTAO reasonably feared, if it proceeded with its intended activities: (a) that Change and

Survivors (both on RTAO’s website and as broadcast)

would be deemed express advocacy under 11 C.F.R.

§ 100.22(b) and, if RTAO were not deemed a PAC, it

would be in violation of FECA for making a forbidden

corporate independent expenditure, failing to place a

disclaimer on its ads, and failing to file independent expenditure reports; (b) that, if RTAO were deemed to be

a PAC, under FEC’s PAC enforcement policy and

because either the publication of its ads were considered an “expenditure” (under § 100.22(b)) or the

fundraising communication were considered a “contribution” (under § 100.57), RTAO would be in violation

of FECA for failure to abide by numerous PAC requirements; and (c) in any event, that RTAO would suffer

an intrusive and burdensome investigation and possible enforcement action with civil and criminal penalties. So RTAO would not proceed with its intended

activities unless it received the judicial relief requested. (Compl. ¶ 25.)

RTAO also reasonably feared, if it broadcast

Change and Survivors, that it would have broadcast

prohibited electioneering communications because

FEC’s rule at 11 C.F.R. § 114.15 (creating an exception

to the electioneering communication prohibition, 2

U.S.C. § 441b) is vague and overbroad and RTAO could

not be sure that its ads are protected communications

under FEC’s rule, although it believes that they are

protected under the “appeal to vote” test of FEC v.

Wisconsin Right to Life, 551 U.S. at 470 (Roberts, C.J.,

joined by Alito, J.).2

 It was impossible at the time of

2

 This opinion (“WRTL-II”) states the holding. Marks v. United

States, 430 U.S. 188, 193 (1977).
6

filing to tell whether FEC (or courts) might deem

Change and Survivors to be prohibited electioneering

communications under 11 C.F.R. § 114.15 or prohibited

express-advocacy independent expenditures under 11

C.F.R. § 100.22(b) because the tests are similar and

vague. So RTAO would not proceed with its plan to

broadcast Change and Survivors during electioneering

communication blackout periods absent requested

judicial relief. (Compl. ¶ 26.)

RTAO’s chill was irreparable harm because it was

the loss of First Amendment rights. RTAO would like

to do materially similar future activities, so the need

for a preliminary injunction is capable of repetition yet

evading review. There is no adequate remedy at law.

(Compl.¶¶ 27-28.)

In opposing the first preliminary injunction motion,

FEC insisted that Change was neither express advocacy under 11 C.F.R. § 100.22(b) nor a prohibited

electioneering communication under 11 C.F.R. § 114.15

and that the fundraising communication would not

solicit “contributions” under 11 C.F.R. § 100.57. So

FEC insisted that RTAO would not trigger the $1,000

“expenditure” or “contribution” thresholds for PAC

status under 2 U.S.C. § 431(4) and the case was nonjusticiable as to those. (FEC Answer ¶¶ 22-24.) But

FEC decided that Survivors was prohibited both as

express advocacy (§ 100.22(b)) and an electioneering

communication (§ 114.15). (FEC Answer ¶¶ 22, 25.)

Despite FEC’s position that Change was not express

advocacy, the district court decided that “it is clear that

reasonable people could not differ that [Change] is

promoting the defeat of Senator Obama,” so it would be

express advocacy under § 100.22(b). (App. 34a; see also

App. 36a n.3 (“clear both are expressly advocating the
7

defeat of Senator Obama”).)

This case was brought under 28 U.S.C. § 1331. On

September 10, 2008, the district heard the preliminary

injunction motions. On September 11, the court issued

an order denying the motions (and motions to expedite

and consolidate the preliminary injunction and merits

hearings). On September 12, RTAO noticed appeal

(under 28 U.S.C. § 1292(a)(1)) of the denials of preliminary injunction. On September 24, the district court

issued its preliminary-injunction Memorandum Opinion, deciding that RTAO had standing but failed its

preliminary-injunction burden. (App. 19a.)

The appellate court affirmed the district court on

August 5, 2009 (App. 1a), and denied rehearing en

banc on October 6 (App. 56a).

Reasons to Grant the Petition

I. This Case Involves a Matter of

Great National Importance.

Central to this case is the vitally important question of how to protect the issue advocacy essential to

our democratic republic. This Court has rejected attempts to restrict issue-advocacy communications and

issue-advocacy groups in Buckley, 424 U.S. 1; MCFL,

479 U.S 238; McConnell v. FEC, 540 U.S. 93 (2003);3

and WRTL-II, 551 U.S. 449. This case challenges

renewed efforts to restrict issue-advocacy communica3

 While McConnell facially upheld regulation of electioneering

communications, it worked within Buckley’s speech-protective

framework by seeking to identify the “functional equivalent of

express advocacy,” id. at 206, recognizing the need to protect issue

advocacy, id. at 206 & n.88, employing unambiguously-campaignrelated principle (see infra), id. at 192, and restating the majorpurpose test, id. at 170 n. 64.
8

tions and groups.

While WRTL-II went far to reaffirm protection for

issue-advocacy communications, there remains a concerted effort to collaterally attack issue advocacy by

trying to impose onerous PAC status on issue-advocacy

groups. Uniquely, this case brings together all three

elements involved in defining PACs, i.e., regulations

governing the “expenditures” (11 C.F.R. § 100.22(b))

and “contributions” (11 C.F.R. § 100.57) triggering PAC

status under 2 U.S.C. § 431(4) and an enforcement

policy governing the major-purpose test that Buckley,

424 U.S. at 79, and MCFL, 479 U.S. at 252 n.6, held

that the First Amendment requires to protect issueadvocacy groups. This Court’s review is again required

to protect issue advocacy groups.

II. The Appellate Court’s PreliminaryInjunction Standard Conflicts

With This Court’s Decisions.

The appellate court employed a heightened version

of the preliminary-injunction standard in Winter v.

Natural Resources Defense Council, 129 S. Ct. 365

(2008). See II.A. The court ignored this Court’s holding

that preliminary-injunction burdens follow merits burdens. See II.B. Winter did not state how the preliminary-injunction standard applies to issue-advocacy,

which this Court should decide. See II.C.

A. The Appellate Court Misinterpreted Winter.

The Fourth Circuit recited Winter’s likely-success-
9

and-harm standard4 but substituted a “stringent” test

and “heavy” burden:

Notwithstanding the numerous Supreme Court

opinions on the subject, the regulation of speech

related to political campaigns remains a difficult

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

preliminary injunction standard, [RTAO] bears

a heavy burden in showing its likelihood of

success.

App. 10a (emphasis added). This “heavy burden” on

RTAO was erroneous. First, FEC had the burden. See

II.B. Second, speakers cannot be penalized if courts

complicate the First Amendment’s prohibition on

“abridging . . . freedom of speech.” Third, if the court

had followed this Court’s unambiguously-campaignrelated analysis as explained in North Carolina Right

to Life v. Leake, 525 F.3d 274 (4th Cir. 2008), it would

have found the law simple. Fourth, perceived complexity should lower standards in an issue-advocacy case,

where doubts are resolved in favor of speakers, not

censors. See WRTL-II, 551 U.S. at 469 (“benefit of . . .

doubt to protecting . . . speech”), 474 n.7 (same), 482

(same).

The appellate court’s reliance on the required “clear

showing” of “likely” success and harm to make Winter’s

test “stringent” (App. 10a) was also erroneous because

“clear showing” applies only to whether there is “likely”

success and harm. It does not elevate “likely” to “highly

4

 “‘[P]laintiff . . . must establish that he is likely to succeed on

the merits, . . . he is likely to suffer irreparable harm . . . , that the

balance of equities tips in his favor, and that an injunction is in

the public interest.’” App. 4a (quoting Winter, 129 S. Ct. at 374)

(emphasis added).
10

likely,” as the appellate court believed. And in First

Amendment cases, burdens are raised on the Government, not speakers. See, e.g., WRTL-II, 551 U.S. at 464

(“Government must prove that applying [restriction]

. . . to . . . ads furthers a compelling interest and is

narrowly tailored to achieve that interest.”).

B. The Courts Below Did Not Require the Burden to Follow the Merits Burden.

The preliminary-injunction burden should have

fallen on government because “the burdens at the preliminary injunction stage track the burdens at trial.”

Gonzales v. O Centro Espirita Beneficente Uniao do

Vegetal, 546 U.S. 418, 429 (2006). When Winter spoke

of a “clear showing,” 129 S. Ct. at 376, it cited

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

held that the “clear showing” applies to “the burden of

persuasion,” id. at 972. That burden, under strict

scrutiny,5 requires the government, even at the preliminary-injunction stage, to prove that its regulation is

narrowly tailored to a compelling interest and that

less-restrictive means are inadequate to serve the

interest. See Gonzales, 546 U.S. at 428, citing Ashcroft

v. ACLU, 542 U.S. 656, 666 (2004). See also WRTL-II,

551 U.S. at 464, 478; United States v. Playboy Entm’t

Group, Inc., 529 U.S. 803, 816 (2000). The court below

erroneously ignored the First Amendment context in

placing a heightened burden on RTAO instead of the

government.

The burden was also on the government to prove its

argument, which the court adopted (App. 17a), that the

public-interest would be served by denying the prelimi5

 Strict scrutiny applies to the core-political-speech restrictions

in the present case. See WRTL-II, 551 U.S. at 464.
11

nary injunction because a “wild west” scenario was

likely to ensue.6 The government must provide proof,

not speculation. See Gonzales, 546 U.S. at 430 (“strict

scrutiny” rejects “categorical approach”). The government “must do more than simply posit the existence of

the disease sought to be cured. It must demonstrate

that the recited harms are real, not merely conjectural,

and that the regulation will in fact alleviate these

harms in a direct and material way.” Turner Broad.

Sys., Inc. v. FCC, 512 U.S. 622, 664 (1994) (internal citation omitted).

C. Speech-Protective Standards Apply to Preliminary Injunctions Involving Issue Advocacy.

This Court’s speech-protective standards were ignored below. This case should be accepted to establish

the protections afforded issue advocacy in the preliminary injunction context.

1. Preliminary Injunction Denials Effectively

Decide Time-Sensitive Speech Cases.

Preliminary-injunction denials deprive issue-advocacy groups of timely opportunities to advocate their

issues. RTAO wanted to talk about a politician’s publicpolicy position during hot public debate on a subject

when public attention was focused so as to make the

communication uniquely effective. While this case is

not moot because it is capable of repetition yet evading

review, see WRTL-II, 551 U.S. at 461-64, the particular

6

 Another federal district court expressly rejected this argument: “[F]inding these laws unconstitutional will not likely result

in the type of chaotic ‘wild west’ scenario Defendants . . . foretell.

Rather, it will simply result in the dissemination of more information of precisely the kind the First Amendment was designed to

protect.” Ctr. for Individual Freedom, Inc. v. Ireland, Nos. 08-190

& 08-1133, 2008 WL 4642268, at *26 (S.D. W. Va. Oct. 17, 2008).
12

public teachable moment was lost. Where issue-advocacy involves time-sensitive issues, preliminaryinjunction denials effectively decide the case. For

example, in WRTL-II, WRTL was denied a preliminary

injunction, which deprived it of the timely opportunity

to advocate against judicial-nominee filibusters, 551

U.S. at 460. The 2007 vindication of WRTL’s right to

run its 2004 ads did not repair the deprivation when

most timely. Recognizing this problem, WRTL-II set

speech-protective standards for future as-applied

challenges to assure expeditious decisions. See id. at

467-69.7

 These and other speech-protective standards

should be incorporated into the preliminary-injunction

standard. See infra.

2. This Case Should Be Accepted to Establish

Speech-Protective Preliminary-Injunction

Tests and Interests.

This Court should clarify that preliminary-injunction standards in issue-advocacy cases must protect

speech. Some of these are provided briefly:

(1) the requirements of “likely” success and irreparable harm are not made “stringent” (i.e., “highly

likely”) by the required “clear showing” of likelihood,

see supra at 8-9;

(2) the preliminary-injunction burden is not heavier

with “a difficult and complicated area of law that is

still developing,” see supra at 9;

(3) the preliminary-injunction burden follows the

merits burden, i.e., the government must justify restrictions, see supra at 10;

7

 The dissent agreed that preliminary injunctions are available, 551 U.S. at 353, meaning that the standard must be capable

of being met.
13

(4) the government must prove that alleged harms

are real, not speculative, see supra at 10-11;

(5) likelihood of success should be considered first

because other preliminary-injunction elements follow

(violating free speech is irreparable harm and the

balance of equities and public interest favor upholding

constitutional rights);

(6) WRTL-II’s streamlined procedures and protective rules must be reflected in preliminary-injunction

decisions involving issue advocacy near elections, see

551 U.S. at 478;

(7) standards involving issue advocacy must reflect

that “the people are sovereign,” Buckley, 424 U.S. at

14, there is a “‘profound national commitment to the

principle that debate on public issues should be uninhibited, robust, and wide-open,’” id. (citation omitted),

and the First Amendment mandates a “freedom of

speech” presumption;

(8) this free-speech presumption means that the

status quo in a prohibitory injunction is the state of the

law before the challenged provision regulating speech;

(9) where the unambiguously-campaign-related

requirement is at issue, see infra at 30-33, the government always has the burden of meeting that threshold

burden before meeting the burden imposed by the

required scrutiny;

(10) because strict scrutiny is the antithesis of

deference or presumed constitutionality, these are not

afforded to speech regulation;

(11) in determining the balance of harms and public

interest, “[w]here the First Amendment is implicated,

the tie goes to the speaker,” WRTL-II, 551 U.S. at 474;

(12) agencies have no per se interest in restricting
14

or regulating speech; their only interest is in enforcing

the laws as they exist, with any interest in the particular content of those laws being beyond the agency’s

interest when balancing harms;

(13) the fact that issue-advocacy cases may occur

near elections favors the plaintiffs in the preliminaryinjunction balancing because issue advocacy is most

important when public interest is highest: “a group can

certainly choose to run an issue ad to coincide with

public interest” without election proximity indicating

“electioneering,” WRTL-II, 551 U.S. at 473; and

(14) likely unconstitutional laws may not operate

just because an election is near.

Issue-advocacy cases involve our most cherished

liberties and the right of sovereign people to participate in self-governance. The high constitutional protection for issue advocacy reflects that fact. The preliminary injunction standard and cognizable interests must

reflect that protection. The First Amendment forbids

employing the same preliminary-injunction standards

to issue advocacy that apply to feuds between neighbors over fence location. Under proper standards,

RTAO would have received a preliminary injunction.

Those standards should be articulated so issue-advocacy groups may advocate when public interest is high,

as the First Amendment requires.

III. The Holding Below on Likely Success 

Conflicts With Decisions of

This and Other Courts.

The enforcement policy and three regulations challenged here conflict with decisions of this Court and of

federal district courts, see infra, and are inconsistent

with this Court’s jurisprudence, including its unambiguously-campaign-related principle (governing the
15

scope of regulable First Amendment activity in the

campaign-finance context), see infra. RTAO had a clear

likelihood of success on the merits.

A. Section 100.22(b): “Express Advocacy” Requires “Magic Words.”

RTAO challenges 11 C.F.R. § 100.22(b), FEC’s

alternate, non-magic-words, express-advocacy definition as vague, overbroad, and beyond statutory authority. The appellate panel held that RTAO lacked a

reasonable likelihood of success on the merits because

it said that the definition is similar to WRTL-II’s

appeal-to-vote test, 551 U.S. at 469-70. (App. 11-12a.)

1. The Holding Conflicts With Other Circuit

Decisions.

The panel’s decision conflicts with other circuit

decisions holding that express advocacy requires the

so-called “magic words,” i.e., “express words of advocacy of election or defeat, such as ‘vote for,’” Buckley, 424

U.S. at 44 n.52. The Fourth Circuit itself held this very

regulation, § 100.22(b), unconstitutional for not requiring magic words, Virginia Society for Human Life v.

FEC, 263 F.3d 379, 329 (4th Cir. 2001),8

 and prior

decisions held that express advocacy requires magic

words, see Leake, 525 F.3d at 283 (requires “specific

election-related words”); FEC v. Christian Action

Network, 110 F.3d 1049, 1062 (4th Cir. 1997). The

panel’s decision also conflicts with other circuits that

have held that it is a magic-words test. See Faucher v.

FEC, 928 F.2d 468, 470 (1st Cir. 1991); FEC v. Central

Long Island Tax Reform, 616 F.2d 45, 53 (2d Cir.1980);

8

 The challenged provision was also held unconstitutional by 

Right to Life of Duchess County v. FEC, 6 F. Supp. 2d 248, 253-54

(S.D. N.Y. 1998), for not employing magic words.
16

Center for Individual Freedom v. Carmouche, 449 F.3d

655, 664-65 (5th Cir. 2006); Anderson v. Spear, 356

F.3d 651, 664 (6th Cir. 2004); Brownsburg Area Patrons Affecting Change v. Baldwin, 137 F.3d 503, 506

(7th Cir. 1998); Iowa Right to Life Committee v. Williams, 187 F.3d 963, 969 (8th Cir. 1999) (striking

definition patterned on 11 C.F.R. § 100.22(b)); California Pro-Life Council v. Getman, 328 F.3d 1088, 1098

(9th Cir. 2003)9.

10

2. The Holding Conflicts With This Court’s

Decisions.

The panel’s holding also conflicts with this Court’s

holdings that—where the express-advocacy test

applies—it is a magic-words test. Buckley clearly said

that the express-advocacy test was an “express words

of advocacy” test and provided examples. 424 U.S. at

44 n.52. MCFL said that “a finding of ‘express advocacy’ depended upon the use of language such as ‘vote

for,’ ‘elect,’ ‘support,’ etc.,” 479 U.S. at 249 (citation

omitted). McConnell repeatedly equated “express

9

 This decision recognized that even FEC v. Furgatch, 807 F.2d

857 (9th Cir. 1987), on which FEC relies for the challenged

regulation, “presumed express advocacy must contain some

explicit words of advocacy.” See also American Civil Liberties

Union of Nevada v. Heller, 378 F.3d 979, 985 (9th Cir. 2004)

(“‘McConnell left intact the ability of courts to make distinctions

between express advocacy and issue advocacy, where such

distinctions are necessary to cure vagueness and over-breadth in

statutes which regulate more speech than that for which the

legislature has established a significant governmental interest’”

(citation omitted)).

10 State supreme courts have also held that “express advocacy”

requires “magic words.” See Brownsburg Area Patrons Affecting

Change v. Baldwin, 714 N.E. 2d 135 (Ind. 1999); Osterberg v. Peca,

12 S.W. 3d 31 (Tex. 2000).
17

advocacy” with “magic words.” See 540 U.S. at 126,

191-93, 217-19. McConnell’s “functionally meaningless”

statement about the express-advocacy line, id. at 193,

did not eliminate “express advocacy” as a category of

regulated speech requiring “magic words,” rather

McConnell used that analysis to add regulation of

“electioneering communications” to regulation of

magic-words express advocacy. In WRTL-II, all members of the Court equated “express advocacy” with

“magic words.” See 551 U.S. at 474 n.7 (Alito, C.J.,

joined by Alito, J.), 495 (Scalia, J., joined by Kennedy

& Thomas, JJ., concurring in part and concurring in

judgment), 513 (Souter, J., joined by Stevens,

Ginsburg, & Breyer, JJ., dissenting).

3. The Lower Court’s Justification Is Flawed.

The reliance of the appellate panel (App. 11-12a) on

the similarity of § 100.22(b) to WRTL-II’s appeal-tovote test, 551 U.S. at 469-70, is misplaced. WRTL-II’s

test is not a free-floating test that may be employed to

communications that are not federally defined “electioneering communications.” WRTL-II specifically

acknowledged that the test is impermissibly vague

absent that definition. See 551 U.S. at 474 n.7.

The disagreement of FEC and the district court over

how § 100.22(b) applies to the Change ad, see supra at

6, reveals its unconstitutional vagueness. FEC insists

that Change is not express advocacy (Dkt. 31 at 12-13,

27), but the district court declares that it is: “reasonable people could not differ that this advertisement is

promoting the defeat of Senator Obama.” (App. 34a.)

When a federal oversight agency and a federal

court—both “reasonable”—cannot agree on the application of a test, the test is unconstitutional and offers no

“‘no security for free discussion. In these conditions it
18

blankets with uncertainty whatever may be said. It

compels the speaker to hedge and trim,’” Buckley, 424

U.S. at 43 (citation omitted).

Section 100.22(b) is also beyond statutory authority.

The regulation cites as authority 2 U.S.C. § 431(17),

the “independent expenditure” definition, which

regulates only “an expenditure by a person [] expressly

advocating the election or defeat of a clearly identified

candidate.” That definition implements the magicwords, express-advocacy constructions in Buckley, 424

U.S. 44 (“expenditure” limitation), 80 (“expenditure”

disclosure), and MCFL, 479 U.S. at 249 (construing 2

U.S.C. § 441b, at issue here). There is no congressional

authority anywhere for FEC to interpret “expressly

advocating” other than as requiring magic words.

Moreover, the only “expenditure” that FEC may

regulate is one “for the purpose of influencing any

election for Federal office,” 2 U.S.C. § 431(9), and it

was precisely to such “for the purpose of influencing”

language that Buckley gave “expenditure” an expressadvocacy construction to preserve it from vagueness

and overbreadth. 424 U.S. at 77, 80.

In sum, § 100.22(b) goes beyond any permissible

construction of “express advocacy” or “expenditure,” is

unconstitutionally vague and overboad, and is “in

excess of the statutory . . . authority” and void under 5

U.S.C. § 706. RTAO had likely success on the merits.

B. Section 100.57: Donations May Not Be Deemed

“Contributions” Under Vague, Overbroad

Standards.

RTAO challenges 11 C.F.R. § 100.57(a) (App. 59a)

—which converts donations into regulable FECA

“contributions”—as vague, overbroad, and beyond

statutory authority. The appellate panel focused on
19

only one of RTAO’s arguments against the provision,

holding that RTAO lacked a reasonable likelihood of

success on the merits because language it identified as

vague (“support or oppose the election of”) had been

“sanctioned” by the Fourth Circuit.11 (App. 13a.)

1. The Holding Conflicts With Other Circuit

Decisions.

The appellate panel’s holding conflicts with two

circuits. First, it conflicts with the D.C. Circuit, which

recently vacated this regulation in its entirety12 as

unconstitutional, EMILY’s List v. FEC, 581 F.3d 1, 4,

18, 25 (D.C. Cir. 2009), and beyond statutory authority,

id. at 21, 25. That court held that § 100.57 violates the

First Amendment “right of citizens to band together

and pool their resources as an unincorporated group or

non-profit organization in order to express their views

about policy issues and candidates for public office,” id.

at 4, because it was “not ‘closely drawn’ to serve a

cognizable anticorruption interest,” id. at 18. “Nonprofits are entitled to raise money for their soft-money

accounts to help support their preferred candidates, yet

this regulation prohibits non-profits from saying as

much in their solicitations.” Id. This speech restriction

violates a speaker’s right “‘to choose the content of his

own message.’” Id. at 18 (quoting WRTL-II, 551 U.S. at

477 n. 9). The court held that § 100.57 was motivated

by an “equalization rationale” that this Court has repeatedly “repudiated.” Id. The court declared § 100.57

beyond statutory authority for “requir[ing] covered

non-profits to treat as hard money certain donations

11 This assertion is erroneous. See infra.

12 The regulation also provides allocation rules when both

federal and non-federal candidates are involved. § 100.57(b)-(c).
20

that are not actually made ‘for the purpose of influencing’ federal elections.” Id. at 21 (citation omitted).

“Under FECA, FEC’s authority extends only to regulating donations and expenditures made ‘for the purpose

of influencing any election for Federal office.’” Id. at 20

(quoting 2 U.S.C. § 431(8)(A)(i) (“contribution” definition)).

Second, this regulation conflicts with the decision

on which FEC says it is based, FEC v. Survival Education Fund, 65 F.3d 285 (2d Cir. 1995) (“SEF”). See 69

Fed. Reg. at 68057. FEC attempts to justify § 100.57(a)

under Buckley’s phrase, “earmarked for political purposes,” supra, as interpreted by SEF. But SEF does not

justify the regulation. SEF said that Buckley’s “earmarked” language would apply to solicitations for

contributions “that will be converted to expenditures

subject to regulation under FECA,” i.e., “activities or

‘communications that expressly advocate the election or

defeat of a clearly identified candidate.’” 65 F.3d at 295

(emphasis added). So for a donation to become a “contribution” under SEF, (a) the solicitation must request

donations for express advocacy and (b) the recipient

must actually “convert” the contribution into an

expenditure for express advocacy. Section 100.57(a)

fails both requirements. It waters down “express

advocacy” to vague and overbroad “support or oppose,”

and it ignores the requirement that the donation

actually be “converted” to express advocacy.

2. The Holding Conflicts With This Court’s

Decisions.

The panel’s holding also conflicts with Buckley,

which provided an authoritative construction of “contribution.” Buckley restricted the scope of “contribution”

to “funds provided to a candidate or political party or
21

campaign committee” or to “dollars given to another

person or organization that are earmarked for political

purposes.” 424 U.S. at 23 n.24. By “earmarked for

political purposes,” Buckley meant donations designated and used for regulable campaign-related activity,

e.g., express-advocacy “expenditures.” But § 100.57(a)

reaches beyond that approved “contribution” construction, creating “contributions” where they may not exist. 

3. The Lower Court’s Justification Is Flawed.

The appellate court is wrong on the one argument

on which it relied, i.e., that Leake, 525 F.3d at 301,

“sanctioned” “support or oppose” language. (App. 13a.)

While Leake is not precedent here, it provides a lucid

articulation of this Court’s unambiguously-campaignrelated principle, see infra, and the state of campaignfinance jurisprudence after WRTL-II, and it did not

endorse the sort of approach taken in § 100.57.13 The

unambiguously-campaign-related principle that Leake

recognized excludes the sort of vague, overbroad

approach to campaign-finance law taken in § 100.57.

In sum, because Buckley has authoritatively con13 Leake dealt with “whether North Carolina’s method for

determining if a communication ‘supports or opposes the nomination or election of one or more clearly identified candidates’

unconstitutionally regulates issue advocacy,” 525 F.3d at 280, and

upheld an express-advocacy definition of “supports or opposes”

while striking down another more akin to the FEC expressadvocacy test at 11 C.F.R. § 100.22(b), 525 F.3d at 280, 285. This

is the context of its statement that the state “remain[ed] free to

enforce all campaign finance regulations that incorporate the

phrase ‘to support or oppose the nomination or election of one or

more clearly identified candidates.’ See N.C. Gen. Stat.

§ 163-278.14A(a) (2007).” 525 F.3d at 301. The portion that Leake

cited as permissible was the express-advocacy definition, and it

was in no way approving “support or oppose” as defined in any

way other than express advocacy.
22

strued the definition of “contribution” and established

a constitutional limit on its application, § 100.57 is

vague, overbroad, and void as “in excess of the statutory . . . authority . . . ,” 5 U.S.C. § 706. RTAO had

likely success on the merits of this claim.

C. PAC Status May Only Be Imposed on Groups

With the Primary Purpose of Regulable, Campaign-Related Activity.

RTAO challenges FEC’s PAC-status enforcement

policy, found in PAC-Status 1, 69 Fed. Reg. 68056, and

PAC-Status 2, 72 Fed. Reg. 5595. PAC-Status 2 cites 11

C.F.R. §§ 100.22(b) and 100.57 (see supra) as central

elements of FEC’s enforcement policy, 72 Fed. Reg. at

5602-05, so the flaws in those regulations, supra, are

also fatal to this enforcement policy.

A third element of the policy is FEC’s interpretation

of Buckley’s major-purpose test. In PAC-Status 2, FEC

declined to adopt a rule for the major-purpose test,

declaring that “the major purpose doctrine . . . requires

the flexibility of a case-by-case analysis of an organization’s conduct,” id. at 5601. FEC’s vague and overbroad

enforcement policy requires “a fact intensive inquiry”

weighing vague and overbroad factors (with undisclosed weight) and “investigations into the conduct of

specific organizations that may reach well beyond

publicly available statements,” including all an organization’s “spending on Federal campaign activity” (not

limited to spending on regulable activity) and other

spending, as well as public and non-public statements,

including statements to potential donors. Id.

PAC-Status 2 also indicated that FEC would consider other factors in its ad hoc, totality-of-the-circumstances, major-purpose test when it discussed its

application of the policy to some 527 organizations in
23

previous investigations. 72 Fed. Reg. at 5603-04. These

included the fact that an entity spent much of its

money “on advertisements directed to Presidential

battleground States and direct mail attacking or

expressly advocating,” id. at 5605 (emphasis added),

the fact that groups ceased activity after an election,

id., and the fact that they didn’t make disbursements

in state and local races. Id. In addition, FEC thought

that it could determine a 527 group’s major purpose

from internal planning documents and budgets, id.,

which would normally be protected by the First

Amendment privacy right and were only obtained

because the organization was subjected to a burdensome, intrusive investigation (which this approach

encourages). Major purpose was even based on a

private thank-you letter to a donor, after the donation

had already been made. Id.

The appellate court held that RTAO lacked a

reasonable likelihood of success on the merits because

the policy “appears . . . adopted from Supreme Court

jurisprudence that takes a fact-intensive approach to

determining the major purpose of a particular organization’s contributions.” (App. 51-52a.) The court’s formulation reveals its misunderstanding of the jurisprudence. See infra.

1. The Holding Conflicts With Other Circuit

Decisions.

The appellate panel’s holding conflicts with another

Fourth Circuit panel in Leake, which held that major

purpose “is best understood as an empirical judgment

as to whether an organization primarily engages in

regulable, election-related speech,” 525 F.3d at 287 (emphasis added). That approach would examine how

much an advocacy group spends on express-advocacy
24

“independent expenditures” compared to its total disbursements in a particular year to determine if the

group was a “political committee” for that year.14 If over

fifty percent of a group’s expenditures were for express

advocacy (or for FECA “contributions”), then the major

purpose of the group would be “nominating or electing

candidates,” Buckley, 424 U.S. at 79, and PAC status

could be imposed. There would be no examination of

the non-regulable factors that FEC includes in its

enforcement policy.

The appellate panel’s holding also conflicts with

another Fourth Circuit panel in North Carolina Right

to Life v. Bartlett, 168 F.3d 705 (4th Cir. 1999), cert.

denied, 528 U.S. 1153 (2000), which held that the

“major purpose” must be “engaging in express advocacy,” 168 F.3d at 712 (emphasis in original), which

clearly requires that the activity considered to determine major purpose must be regulable election-related

activity.15

The appellate panel’s holding also conflicts with

Colorado Right to Life Committee v. Coffman, 498 F.3d

1137 (10th Cir. 2007), which took a similar objective

approach, relying on MCFL for how to determine PAC

status, id. at 1152:

In MCFL, the Court suggested two methods to

determine an organization’s “major purpose”: (1)

examination of the organization’s central organi14 See FEC v. GOPAC, 917 F. Supp. 851, 852 (D.D.C. 1996)

(PAC-status determination done by particular year).

15 See also Florida Right to Life v. Lamar, 238 F.3d 1288 (11th

Cir. 2001) (affirming Florida Right to Life v. Mortham, No. 98-

770CIVORL19A, 1999 WL 33204523 (M.D. Fla. Dec. 15,1999)

(“organizations whose major purpose is engaging in ‘express

advocacy,’” id. at *4)).
25

zational purpose; or (2) comparison of the organization’s independent spending with overall

spending to determine whether the preponderance of expenditures are for express advocacy or

contributions to candidates. 479 U.S. at 252, 107

S.Ct. 616 n. 6 (noting that MCFL’s “central organizational purpose [wa]s issue advocacy,

although it occasionally engage[d] in activities

on behalf of political candidates”); see id. at 262,

107 S.Ct. 616 (noting that “should MCFL’s independent spending become so extensive that the

organization’s major purpose may be regarded

as campaign activity, the corporation would be

classified as a political committee”).

The cited “independent spending” at issue in MCFL

was magic-words express advocacy. See MCFL, 479

U.S. at 249. In the present case, FEC’s enforcement

policy conflicts with these bright-line tests for PAC

status, and the appellate court’s holding conflicts with

these decisions.

While other circuit courts have recognized the

major-purpose test,16 only Leake, Bartlett, and Coffman, supra, provide guidance on what activities may

be considered in determining major purpose beyond

what MCFL provided, see supra. And their guidance

16 See United States v. National Comm. for Impeachment, 469

F.2d 1135, 1141 (2d Cir. 1972); FEC v. Machinists Non-Partisan

Political League, 655 F.2d 380, 392-93 (D.C. Cir. 1981), cert.

denied, 454 U.S. 897 (1981); Florida Right to Life, 238 F. 3d 1288

(affirming 1999 WL 33204523); Colorado Right to Life, 498 F.3d at

1153-54. Federal district courts have also addressed the test. See,

e.g., Richey v. Tyson, 120 F. Supp. 2d 1298 (S.D. Ala. 2000); Volle

v. Webster, 69 F. Supp. 2d 171 (D. Me. 1999); GOPAC, 917 F. Supp.

851; New York Civil Liberties Union v. Acito, 459 F. Supp. 75

(1978).
26

conflicts with FEC’s policy.

This issue is hotly debated among those affected by

it, as may be seen in the comments on how major

purpose should be determined in response to FEC’s

notice of proposed rulemaking (ending in FEC’s decision in PAC-Status 2 not to make a rule). See 69 Fed.

Reg. 68056. And Professor Foley has published an

article on the subject. See Edward B. Foley, The “Major

Purpose” Test: Distinguishing Between ElectionFocused and Issue-Focused Groups, 31 N. Ky. L. Rev.

341 (2004). But this Court’s guidance is required to

resolve the confusion.17

2. The Holding Conflicts With Decisions of

This Court.

The appellate court’s holding clearly conflicts with

this Court’s bright-line approach to determining “major

17 Confusion about PAC status and standards in the circuits is

particularly evident in Alaska Right to Life Committee v. Miles,

441 F.3d 773 (9th Cir. 2006), in which the Ninth Circuit approved

the imposition of PAC-style burdens on an MCFL-corporation,

which MCFL forbade, 479 U.S. at 262-64, 253-54. Miles said the

burdens (imposed on groups making state-defined “electioneering

communications”) were “not particularly onerous,” 441 F.3d at

791, because they did not “limit the amount that may be contributed to, or spent by, the entity,” id. But Alaska imposed the same

registration and periodic reporting requirements imposed on state

PACs, required disclosure of all transactions, forbade corporate

contributions, and required disbanding to discontinue reporting

obligations—all of which are PAC-style burdens, not the one-time

reporting of a regulated expenditure approved in MCFL for

entities lacking the major purpose of nominating or electing

candidates, 479 U.S. at 252-55. Miles conflicts with California ProLife Council, 328 F.3d 1088, which noted that MCFL “recognized

that reporting and disclosure requirements,” at issue in Miles, “are

more burdensome for multi-purpose organizations . . . than for

political action committees whose sole purpose is political advocacy,” id. at 1101.
27

purpose,” which provides no encouragement to intrusive investigations and permits ready determination of

major purpose. Major purpose may be determined by

either an entity’s expenditures, MCFL, 479 U.S. at

U.S. at 262 (major-purpose calculation looks at

express-advocacy independent expenditures in relation

to total expenditures), or by the organization’s central

purpose revealed in its organic documents, id. at 252

n.6 (“[O]n this record . . . MCFL[’s] . . . central organizational purpose is issue advocacy.”). The first test

determines major purpose based on “an empirical

judgment as to whether an organization primarily

engages in regulable, election-related speech,” Leake,

525 F.3d at 287, i.e., true “contributions” and “expenditures” would be counted. The second test requires an

examination of the entity’s organic documents to

determine if there is an express intention to operate as

a political committee, e.g., by being designated as a

“separate segregated fund” (an internal “PAC”) under

2 U.S.C. § 441b(2)(c).

3. The Court’s Justification Is Erroneous.

The lower court’s formulation reveals its misunderstanding of the jurisprudence, see supra, because

“contributions” are not even at issue here and the

major-purpose test examines the nature of the entity,

not the nature of a “contribution” (or “expenditure”), to

determine whether PAC-status may be imposed or

whether the one-time, “independent expenditure”

reports endorsed in MCFL, 479 U.S. at 262, satisfy any

government interest. The appellate court failed to

comprehend the need for a bright-line test that could

be easily understood and quickly applied without

resorting to expensive, intrusive, time-consuming

investigations (based on vague, overbroad criteria) and
28

after-the-fact determinations that a group that thought

it was not a PAC was a PAC (and so in violation of

numerous PAC requirements). FEC’s ad-hoc, case-bycase approach chills free speech and association.

In sum, because FEC’s enforcement policy goes

beyond any permissible construction of the majorpurpose test, employs invalid regulations to determine

whether the entity received a “contribution” or made

an “expenditure,” is unconstitutionally vague and

overbroad, and is “in excess of the statutory . . . authority . . .” of FEC, it is void under 5 U.S.C. § 706. RTAO

had likely success on the merits on this claim.

D. WRTL-II’s “Appeal to Vote” Test for Regulable

“Electioneering Communications” May Not Be

Demoted to a Mere Part of FEC’s Test.

RTAO challenges 11 C.F.R. § 114.15, which purports to implement WRTL-II’s appeal-to-vote test for

whether a corporate “electioneering communication”18

may be prohibited. WRTL-II’s test is as follows: “[A]n

ad is the functional equivalent of express advocacy only

if the ad is susceptible of no reasonable interpretation

other than as an appeal to vote for or against a specific

candidate.” 551 U.S. at 469-70. WRTL-II also provided

instructions on how litigation must be conducted

expeditiously without burden to challengers, id. at 469

(citations omitted), and required that the nature of an

ad be determined from its actual text, not from surrounding context or from any effort to discern the intent

behind the ad or the effect of the ad on an election, id.

at 467-68, 473-74. After stating the test, WRTL-II

18 An “electioneering communication” is essentially a “targeted” ad identifying a candidate that is broadcast within 30 and

60 days before primaries (and conventions) and general elections.

2 U.S.C. § 434(f)(3).
29

applied it to specific grassroots lobbying and addressed

arguments made by the parties in briefing, e.g., regarding “indicia of express advocacy.” But none of this

application was part of the test. That the appeal-to-vote

test is the only test is confirmed by WRTL-II’s restatement of the test without an elements of the application.

See id. at 476.

Section § 114.15(a), at first appears to set out the

appeal-to-vote test as the primary test, but that test is

never permitted to stand alone. Two FEC tests replace

it. First, is the “safe harbor” test in paragraph (b),

which is not applicable here. Second, is the “rules of

interpretation” test in paragraph (c), which is a balancing test that demotes WRTL-II’s appeal-to-vote test to

just one of two elements to be weighed on equal terms.

The rules-of-interpretation test, balances two further

equipoised tests: (1) an indicia-of-express-advocacy test

and (2) a restatement of WRTL-II’s appeal-to-vote test.

When a constitutional test is demoted to being only a

part of a statutory test to determine whether the

constitutional test is met, the statutory test is inherently vague and overbroad.

FEC then lists factors to put into the pans on the

scale (without indicating the weight assigned each

factor). Nothing in FEC’s rule requires any clear call to

action, which is essential for there to be an unambiguous “appeal to vote.” Rather than focusing on the

“appeal to vote” central to WRTL-II’s test, the factors

listed are all peripheral and could be present in a wide

range of constitutionally-protected issue advocacy. FEC

has erroneously imported the application of WRTL-II’s

appeal-to-vote test in the grassroots lobbying setting of

that case, 551 U.S. at 469-70, into the test itself.

WRTL-II limited the scope of the statutory “elec-
30

tioneering communications” prohibited by 2 U.S.C.

§ 441b, but 11 C.F.R. § 114.15 rejects this limitation.

Because WRTL-II’s appeal-to-vote test is an authoritative construction to the extent of the corporate prohibition on “electioneering communications,” and a constitutional limit on the application of the electioneering

communication prohibition, the rule is beyond FEC’s

statutory authority.

The court below held that RTAO lacked likely

success as to this challenge because “§ 114.15 mirrors

the language of [WRTL-II]” (App. 13a), but as just

shown, the regulation actually demotes WRTL-II’s test

to being merely a part of another test.

Because the regulation at 11 C.F.R. § 114.15 goes

beyond any permissible construction of WRTL-II’s

appeal-to-vote test, is unconstitutionally vague and

overboad, and is “in excess of the statutory . . . authority . . .” of FEC, it is void under 5 U.S.C. § 706. RTAO

had likely success on this claim.

E. This Court Restricts Campaign-Finance Regulation to “Unambiguously Campaign Related”

Activity.

The challenged regulations and enforcement policy

all violate this Court’s “unambiguously campaign

related” principle for determining the permissible

scope of campaign-finance regulation. See infra. The

appellate panel noted that RTAO “relied heavily on . . .

Leake, 525 F.3d 274” (App. 8a)—which articulated the

principle and relied on it to establish the scope of

regulable expenditures and the major-purpose test (see

infra)—but then ignored the principle.
31

1. The Decision Below Conflicts With Other

Circuit Decisions.

The appellate court’s decision conflicts with another

Fourth Circuit panel’s decision in Leake, which held

that “after Buckley, campaign finance laws may

constitutionally regulate only those actions that are

‘unambiguously related to the campaign of a particular

. . . candidate’” 525 F.3d at 281 (quoting Buckley, 424

U.S. at 80). It also conflicts with other circuit decisions

that have recognized the principle. See Furgatch, 807

F.2d at 860; FEC v. Florida for Kennedy Comm., 681

F.2d 1281, 1287 & n.10 (11th Cir. 1982); Machinists

Non-Partisan Political League, 655 F.2d at 391 &

n.23.19

2. The Decision Below Conflicts With This

Court’s Decisions.

The decision below—ignoring the unambiguouslycampaign-related principle—conflicts with Buckley and

other decisions of this Court applying this threshold

principle. Buckley held that disclosure may only be

compelled for expenditures for communications “unambiguously related to the campaign of a particular

federal candidate,” 424 U.S. at 80, i.e., “unambiguously

campaign related,” id. at 81. Buckley applied this

principle to expenditure limitations, id. at 42-44, PAC

status and disclosure, id. at 79, non-PAC disclosure of

contributions and independent expenditures, id. at 79-

19 Federal district courts have also recognized the

unambiguously-campaign-related principle. See Broward Coal. of

Condos., Homeowners Ass’ns & Cmty. Orgs., Inc. v. Browning, No.

08-445, 2009 WL 1457972 at *5 (N.D. Fla. May 22, 2009); Ctr. for

Individual Freedom, Inc. v. Ireland, 613 F. Supp.2d 777, 785 (S.D.

W.Va. 2009); National Right to Work Legal Def. & Educ. Found.,

Inc. v. Herbert, 581 F. Supp.2d 1132, 1141, 1144 (D. Utah 2008).
32

81, and contributions, id. at 23 n.24, 78. Buckley

employed the major-purpose and express-advocacy

tests to implement this principle. Id. at 44, 79-80.

FEC recognized and adopted the principle in its

Petition for Writ of Certiorari in FEC v. Faucher (No.

90-1923), arguing authority to regulate an “expenditure that is unambiguously election related, id. at 19.

And Senators McCain and Feingold, the other primary

BCRA sponsors, and other members of the “reform”

lobby recognized and adopted the principle in

McConnell, identifying it as the principle on which

Congress based BCRA.20 For them to reject the analysis

now would be a bait and switch.

McConnell endorsed the reformers’ reliance on

Buckley’s twin precepts. 540 U.S. at 192 (“vagueness

and overbreadth”), citing the Buckley passage to which

the reformers pointed for the unambiguouslycampaign-related precept, id. at 191 (citation omitted).

WRTL-II limited regulable “electioneering communications” to “campaign speech,” 551 U.S. at 478-79,

with the appeal-to-vote test, id. at 469-470, which is

the application of the unambiguously-campaign-related

20 They argued that

[t]wo general concerns emerge from the Court’s discussion:

Statutory requirements in this area should be clear rather

than vague, in part so they will not ‘dissolve in practical

application,’ [Buckley,] 424 U.S. at 42; and they should be

‘directed precisely to that spending that is unambiguously

related to the campaign of a particular federal candidate,’

id. at 80; see id. at 76-82. Those are precisely the precepts

to which Congress adhered in framing Title II.

Brief for Intervenor-Defendants Senator John McCain et al. at 62,

McConnell, 540 U.S. 93 (emphasis added) (available at http:// supreme.lp.findlaw.com/supreme_court/briefs/02-1674/02-1674.

mer.int.cong.pdf).
33

principle to electioneering communications, see Leake,

525 F.3d at 281-83.

The principle clarifies campaign-finance jurisprudence. It permits regulation of only express-advocacy

“independent expenditures” and appeal-to-vote “electioneering communications,” Leake, 525 F.3d at 284, so

the hybrid at 11 C.F.R. § 100.22(b) is unconstitutional.

The requirement that the only regulated activity be

“unambiguously campaign related” dooms the vague,

overbroad approach of § 100.57. The principle requires

an objective major-purpose test determined on the

basis of “regulable, election-related speech,” Leake, 525

F.3d at 287, so FEC’s vague, overbroad PAC-status

policy fails. FEC’s demotion of WRTL-II’s appeal-tovote test—the implementation of the principle for

electioneering communications—to a mere part of

FEC’s own test, dooms § 114.15.

IV. RTAO Had Irreparable Harm And Met the

Other Preliminary-Injunction Elements.

In an expressive association case, the other elements of the preliminary-injunction standard essentially follow from likely success on the merits. “Deprivations of speech rights presumptively constitute

irreparable harm for purposes of a preliminary injunction: ‘The loss of First Amendment freedoms, even for

minimal periods of time, constitute[s] irreparable

injury.’” Summum v. Pleasant Grove City, 483 F.3d

1044 (10th Cir. 2007) (quoting Elrod v. Burns, 427 U.S.

347, 373 (1976)). See also Chaplaincy of Full Gospel

Churches v. England, 454 F.3d 290, 301 (D.C. Cir.

2006) (“[w]here a plaintiff alleges injury from a rule or

regulation that directly limits speech, the irreparable

nature of the harm may be presumed.”)

The balance of harms favors RTAO, whose hardship
34

is the irreparable loss of First Amendment rights to

engage in core political speech in the form of highlyprotected issue advocacy at the most opportune time in

terms of public interest. Defendants’ interest in enforcing FEC’s regulations and policy is substantially

reduced by the showing of the high probability of

success on the merits. Clearly, if the challenged provisions are unconstitutional, Defendants have no cognizable interest in enforcing them. Moreover, there

remain numerous campaign-finance laws and regulations that will remain in effect that will adequately

protect the governmental interests that this Court has

identified in this area to the extent that they regulate

only activity that meets the unambiguously-campaignrelated requirement and the derivative express-advocacy test, “contribution” construction, major-purpose

test, and appeal-to-vote test.

The public interest analysis also follows the high

likelihood of success and favors RTAO. The public has

an interest in its government entities promulgating

and enforcing constitutional regulations and policies.

It has an interest in promoting core political speech.

And it has an interest, in the First Amendment context, in receiving RTAO’s speech. An injunction serves

these interests.
35

Conclusion

For the reasons stated, this Court should grant this

petition.

Michael Boos

LAW OFFICE OF MICHAEL

BOOS

Suite 313

4101 Chain Bridge Road

Fairfax, VA 22030

703/691-7717

703-691-7543 (facsimile)

Respectfully submitted,

James Bopp, Jr.,

Counsel of Record

Richard E. Coleson

Kaylan L. Phillips

BOPP, COLESON &

BOSTROM

1 South 6th Street

Terre Haute, IN 47807

812/232-2434

812/235-3685 (facsimile)