United States District Court

Eastern District of North Carolina

Northern Division

Holly Lynn Koerber and

Committee for Truth in Politics, Inc.,

Plaintiffs,

v.

Federal Election Commission,

Defendant.

Case No.

Motion to Expedite

Plaintiffs, Holly Lynn Koerber and Committee for Truth in Politics, Inc. (“CTP”), respectfully move to expedite this action. With this motion, Plaintiffs have filed their verified complaint,

preliminary-injunction motion, memorandum in support of preliminary-injunction motion, and

motion to consolidate the preliminary-injunction hearing with a trial on the merits. 

Plaintiffs’ complaint, preliminary-injunction motion, and memorandum in support of

preliminary-injunction motion set forth how Defendant has violated Plaintiffs’ rights to political

speech. These violations of the First Amendment will continue to occur unless Defendant is enjoined.

The United States Supreme Court has held that “[t]he loss of First Amendment freedoms, for

even minimal periods of time, unquestionably constitutes irreparable injury.” Steakhouse, Inc. v.

City of Raleigh, 166 F.3d 634, 637 (4th Cir. 1999) (quoting Elrod v. Burns, 427 U.S. 347, 373

(1976)). The Court has also recognized the need for rapid resolution of litigation in the First

Amendment issue-advocay context by requiring special consideration for protecting free speech

and speakers, for example, by requiring that standards of review “be objective, focusing on the

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substance of the communication rather than amorphous considerations of intent and effect,” and

that there must be “minimal if any discovery, to allow parties to resolve disputes quickly without

chilling speech through the threat of burdensome litigation.” FEC v. Wisconsin Right to Life,

Inc., 127 S. Ct. 2652, 2655 (2007) (“WRTL II”); see also North Carolina Right to Life, Inc. v.

Leake, 525 F.3d 274, 282 (4th Cir. 2008). In WRTL II, the Court spoke disapprovingly of the

burdensome, time-consuming litigation that the plaintiff in that case had to endure. The Court

rejected the defendant’s contention that it could consider an orgainization’s intent in evaluating

the meaning of political speech. See WRTL II, 127 S. Ct. at 2666 n.5. The Supreme Court has

thus come down on the side of expedition in cases, such as the present one, where issue advocacy

is being restricted.

As set forth in Plaintiffs’ verified complaint and preliminary-injunction motion and

memorandum, the Federal Election Code threatens Plaintiffs’ First Amendment rights. Certain

questions of law, such as those affecting political speech, demand rapid resolution, because

“timing is of the essence in politics. It is almost impossible to predict the political future; and

when an event occurs, it is often necessary to have one’s voice heard promptly, if it is to be

considered at all.” Shuttlesworth v. City of Birmingham, 394 U.S. 147, 163 (1969) (Harlan, J.,

concurring). Based on the communications broadcast by CTP and its refusal to comply with the

disclosure and reporting requirements, it is likely to be subject to investigations and fines by the

Federal Election Commission. Absent appropriate judicial relief, Plaintiffs will be subject to the

harms of investigations and severe penalties, and may be required to assume the severe burdens

of complying with restrictions that Plaintiff has good reason to believe are unconstitutional as

applied to it and its activities. These enforcement measures are imminent.

Plaintiff has not engaged in what WRTL II referred to as “campaign speech, or ‘express

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advocacy,’ that mentions a candidate for federal office.” WRTL II, 127 S. Ct. at 2659. WRTL II

also called issue advocacy “political speech,” id. at 2659, and held that in drawing lines in the

First Amendment area courts must “err on the side of protecting political speech rather than

suppressing it.” Id. “Issue advocacy conveys information and educates. An issue ad’s impact on

an election, if it exists at all, will come only after the voters hear the information and choose —

uninvited by the ad — to factor it into their voting decisions.” Id. at 2667. WRTL II reaffirmed

strong constitutional protection for issue advocacy, or political speech, and the sppech-protective

analysis that it had articulated in Buckley v. Valeo, 424 U.S. 1 (1976). CTP wants to educate the

general public on the public policy positions of Barack Obama. CTP has engaged in precisely the

kind of political speech protected by the Supreme Court in WRTL II. The Buckley-WRTL II

analysis controls here.

Each day the requested judicial relief is delayed further infringes upon Plaintiff’s First

Amendment rights. It is only a matter of time before they will be subject to investigations, fines,

and other penalties. CTP has the right to “discuss publicly and truthfully all matters of public

concern without previous restraint or fear of subsequent punishment.” WRTL II, 127 S. Ct. at

2666 (quoting First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 776 (1978)). Further, as set

out in the motion to consolidate, this case turns on primarily legal issues, so there is no need for

burdensome discovery, which results in a “severe burden on political speech.” Id. at 2666 n.5.

Time is of the essence.

For the foregoing reasons, Plaintiff respectfully requests that this case be expedited.

A proposed order is attached.

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Dated: October 2, 2008

/s/ Paul Stam 

Paul Stam, paulstam@bellsouth.net

State Bar No. 6865

STAM FORDHAM & DANCHI, P.A.

P.O. Box 1600

510 W. Williams Street

Apex, NC 27502

919/362-8873 telephone

919/387-7329 facsimile

Local Counsel for Plaintiffs

Respectfully submitted,

/s/ James Bopp, Jr. 

James Bopp, Jr., jboppjr@aol.com

 Ind. Bar No. 2838-84

Richard E. Coleson, rcoleson@bopplaw.com

 Ind. Bar No. 11527-70

Clayton J. Callen, ccallen@bopplaw.com

 Mo. Bar No. 59885

Sarah Troupis, stroupis@bopplaw.com

 Wis. Bar No. 1061515

BOPP, COLESON & BOSTROM

1 South Sixth Street

Terre Haute, IN 47807-3510

812/232-2434 telephone

812/234-3685 facsimile

Lead Counsel for Plaintiffs

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Certificate of Service

The undersigned hereby certifies that a true and accurate copy of the foregoing Motion to

Expedite was served by certified mail on the persons identified below on October 3, 2008. In

addition, a courtesy copy was sent by email to the FEC at tduncan@fec.gov, dkolker@fec.gov,

and kdeeley@fec.gov, and a courtesy copy was sent by FedEx overnight service to General

Mukasey.

Thomasenia P. Duncan, General Counsel

FEDERAL ELECTION COMMISSION

999 E Street, NW

Washington, DC 20436

Civil Process Clerk

UNITED STATES ATTORNEY’S OFFICE

310 New Bern Avenue, Suite 800

Terry Sanford Federal Building & U.S.

Courthouse

Raleigh, NC 27601-1461

Attorney General Michael B. Mukasey

U.S. DEPARTMENT OF JUSTICE

950 Pennsylvania Ave. NW

Washington, DC 20530

/s/ Paul Stam

Paul Stam

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