Jack Speight (Wyoming Bar No. 4-0983)

4021 Snyder Ave

Cheyenne, WY 82001

307.635.1239 [Tel.]

jbspeight@gmail.com

Benjamin T. Barr

10737 Hunting Lane

Rockville, MD 20850

202.595.4671 [Tel.]

benjamin.barr@gmail.com

Stephen R. Klein

Wyoming Liberty Group

1902 Thomes Ave

Ste. 201

Cheyenne, WY 82001

307.632.7020 [Tel.]

307.632.7024 [Fax.]

stephen.klein@wyliberty.org

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF WYOMING

____________________________________

)

FREE SPEECH )

)

Plaintiff, )

)

v. ) Civil Case No. 12-CV-127-S

)

FEDERAL ELECTION COMMISSION )

)

Defendant. )

____________________________________)

___________________________________________

PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS

____________________________________________

Case 2:12-cv-00127-SWS Document 38 Filed 10/02/12 Page 1 of 4
1

Plaintiff Free Speech opposes Defendant Federal Election Commission (FEC)’s Motion 

to Dismiss. Plaintiff agrees that “the resolution of this case depends exclusively on legal 

questions that have been fully and extensively briefed.” Def.’s Motion to Dismiss (Docket No. 

33) at 2. However, as the Plaintiff’s First Amended Verified Complaint (Docket No. 24) and 

Memorandum in Support of Preliminary Injunction (Docket No. 20) establish, it is the FEC’s 

regulations that are legally and constitutionally deficient, not the Plaintiff’s claims. 

The Defendant’s central argument attempts to foreclose the Plaintiff’s claims as settled 

law. To the contrary, the Plaintiff has established that imposing political committee (PAC) status 

on issue advocacy organizations is a burden on political speech—far above the “disclosure” 

approved in Citizens United v. FEC—and thus brightline rules must prevent arbitrary and 

discriminatory assignment of PAC status. However, the FEC’s vague and overbroad definitions 

of “express advocacy” under 11 C.F.R. § 100.22(b), “solicitation,” and its consideration and 

application of the “major purpose” test individually and collectively allow the Defendant to 

ensnare groups like Free Speech that only wish to speak about important political issues and how 

they relate to political candidates. Given these arguments and the ample record supporting facial 

and as-applied unconstitutionality of these regulations, this Court should not dismiss this case for 

failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). 

The Commission’s alternative argument is also without merit. In its First Amended 

Verified Complaint, the Plaintiff carefully breaks down a complex regulatory structure into four 

specific areas with relevant facts that support as-applied and facial claims against each under the 

First Amendment and Administrative Procedure Act. Building on this, the Plaintiff challenges 

the entire regulatory structure in question as a system of prior restraint. Less detailed pleadings

would risk depriving this Court of information necessary to afford relief to the Plaintiff. See 

Real Truth About Abortion v. FEC, 681 F.3d 544, 558 n.5 (4th Cir. 2012). Plaintiff’s First 

Amended Verified Complaint comports with Federal Rule of Civil Procedure 8 by properly 

alleging its claims and making allegations as “simple, concise, and direct” as possible. Fed. R. 

Civ. P. 8(a)(2), (d)(1). Thus, this Court should not dismiss without prejudice under Federal Rule 

of Civil Procedure 41(b). 

Case 2:12-cv-00127-SWS Document 38 Filed 10/02/12 Page 2 of 4
2

For these reasons and those set forth in the accompanying Memorandum in Support of 

Opposition to Motion to Dismiss, the Plaintiff requests that the Court deny the Commission’s 

Motion to dismiss this case. 

Dated: October 2, 2012

Respectfully submitted,

/s/ Stephen R. Klein

Stephen R. Klein

Wyoming Liberty Group

1902 Thomes Ave

Ste. 201

Cheyenne, WY 82001

307.632.7020 [Tel.]

307.632.7024 [Fax.]

stephen.klein@wyliberty.org

Benjamin T. Barr

10737 Hunting Lane

Rockville, MD 20850

202.595.4671 [Tel.]

benjamin.barr@gmail.com

Jack Speight (Wyoming Bar No. 4-0983)

4021 Snyder Ave

Cheyenne, WY 82001

307.635.1239 [Tel.]

jbspeight@gmail.com

Case 2:12-cv-00127-SWS Document 38 Filed 10/02/12 Page 3 of 4
CERTIFICATE OF SERVICE

I hereby certify that on October 2, 2012, I the below listed persons received copies of this 

document by electronic mail via Electronic Case Filing pursuant to Fed. R. Civ. P. 5(b)(2)(E):

Anthony Herman

Federal Election Commission

aherman@fec.gov

Erin Chlopak

Federal Election Commission

echlopak@fec.gov

David Kolker

Federal Election Commission

dkolker@fec.gov

Lisa Stevenson

Federal Election Commission

lstevenson@fec.gov

Nicholas Vassallo

United States Attorney’s Office

nick.vassallo@usdoj.gov

/s/ Stephen Klein________________

Stephen Klein 

Case 2:12-cv-00127-SWS Document 38 Filed 10/02/12 Page 4 of 4