2

bers of this Court in WRTL-I and McConnell recog-
nized that express advocacy requires “magic words”;
that lower courts before and after McConnell recog-
nized the express-advocacy test as a magic-words test;
and that the only statutory authority is for a magic-
words test. (Pet. 15-18.) To this must now be added the
dissent’s recognition (twice) of the same in Citizens: “If
there was ever any significant uncertainty about what
counts as the functional equivalent of express advo-
cacy, there has been little doubt about what counts as
express advocacy since the ‘magic words’ test of
Buckley... ,” 180 S. Ct. at 935 n.8 (Stevens, J., joined
by Ginsburg, Breyer & Sotomayor, JJ., concurring in
part and dissenting in part); id. at 956 (equating
express advocacy with “magic words”). But despite this,
FEC argues that it is not bound by these cases because
McConnell gave FEC broad authority to regulate more
than express advocacy. (Opp’n 17.)

This is an important issue for this Court to decide.
Did McConnell insist that the “express advocacy” test
requires “magic words,” as RTAO argues, or did
McConnell give FEC broad authority to survey Amer-
ica’s political speech and prohibit, by regulation, the
speech it does not like, as FEC says it did here in
adopting 11 C.F.R. 100.22(b)?

Furthermore, FEC justifies 100.22(b) as being like
WRTL-Is appeal-to-vote test (Opp’n 15), or more
particularly, like FEC’s interpretation of that test at
FEC’s unconstitutional rule at 11 C.F.R. 114.15. (Opp’n
16). FEC describes WRTL-IIs test as “look[ing] to the
‘mention’ of an election and similar ‘indicia of express
advocacy.” (Opp’n 16.) However, that was not part of
WRTL-I?s appeal-to-vote test. FEC’s interpretation of
the test (importing elements of a particular application

3

of the test into the test) was “precisely what WRTL[-I]]
sought to avoid,” Citizens, 180 S. Ct. at 896. By its new
regulation, FEC converted the “objective ‘appeal to
vote’ test” into a subjective “two-part, 11-factor balanc-
ing test,” id. at 895, that was “onerous” and the
“function[al] . .. equivalent of prior restraint by giving

the FEC power analogous to licensing laws... .” Jd. at
895-86.

Thus, this is an important issue for this Court to
decide. Does the unconstitutional “two-part, 11-factor
balancing test” in section 114.15 live on in FEC’s
alternate definition of “express advocacy,” 100.22(b), or
is it unconstitutional as Citizens explained? Further-
more, is the appeal-to-vote test a free-floating test that
FEC may import into the express-advocacy context, or
is it rather a gloss only on the electioneering-communi-
cation prohibition imposed by WRTL-II, 551 U.S. 449,
as the Fourth Circuit held? North Carolina Right to
Life v. Leake, 525 F.3d 274, 282 (4th Cir. 2008). (Pet.
17).

FEC further claims that 100.22(b) is “identical to”
the express-advocacy test stated in FEC v. Furgatch,
807 F.2d 857 (9th Cir. 1987) (Opp’n 18), but it is not.
Furgatch said “speech may only be termed ‘advocacy’ if
it presents a clear plea for action, and... it must be
clear what action is advocated|, i.e.,] .. . a vote for or
against a candidate...” Section 100.22(b) contains no
clear-plea-for-action requirement that must be to

* Furgaich applied this to an anti-Nixon ad that pro-
claimed “DON’T LET HIM DO IT!” where the only way to
“{not}.let him do it” was to vote against him. The Ninth Circuit
decided that there was a “clear plea for action” and the action
solicited was “a vote for or against a candidate” so the commu-
nication at issue fit the test.



8

ance with PAC requirements. FEC blithely asserts that
RTAO has no irreparable harm because it can do all
the activities it seeks to do by simply being a political
committee! (Opp’n 21-22.) Citizens, however, pro-
nounced PAC burdens “onerous,” id. at 897-98, as did
WRTL-II, 551 U.S. at 477 n.9 (controlling opinion)
(PACs impose well-documented and onerous bur-
dens”). And the enormous penalties to which an ex post
facto finding of PAC status would subject RTAO, when
it did not comply with PAC requirements because it
believed it was not a PAC, are clearly irreparable
harm. This is true especially if the PAC-status enforce-
ment policy is likely unconstitutional. Thus, this Court
should accept this case to determine whether the
rejection of the PAC option in WRTL-I, 551 U.S. at
477 n.9, and Citizens, 130 S. Ct. at 897—because it
does not alleviate constitutional problems with re-
stricting speakers—controls preliminary injunctions or
whether availability of the PAC option means there is
no irreparable harm because a speaker can do the
same speech through a PAC (as FEC argues).

Second, Citizens reaffirms that the only type of
corruption justifying speech restrictions is quid pro
quo. 130 S. Ct. at 909-11. FEC claims, however, that
imposing PAC restrictions is justified by “compelling
interests in preventing .. . corruption, informing the
public, and facilitating the Commission’s enforcement
of the law.” (Opp’n 23.) Thus, FEC is claiming broad
authority to regulate speech, based not just on quid pro
quo corruption, but on two interests that have not been
previously identified as “compelling” and have only
been used so far to justify simple disclosure require-
ments. Buckley, 424 U.S. at 66-68. If mere public
desire to know about a group’s activities and FEC

9

desire to enforce PAC requirements are sufficient to
justify PAC burdens, then PAC status may be imposed
on anyone. This Court should accept this case to decide
whether interests other than preventing quid pro quo
corruption justify imposing PAC status.

Third, FEC argues that it is more important for
likely-unconstitutional restrictions to remain in place
near elections—because of the potential for public
confusion and lack of confidence in campaign finance
regulations—than for constitutional rights to be pro-
tected. (Opp’n 23-24.) WRTL-II, 551 U.S. at 469, and
Citizens, 180 S. Ct. at 895, however, recognized the
propriety of constitutional challenges near elections,
where unconstitutional laws would be challenged and
‘enjoined. Thus, this Court should accept this case to
decide whether retaining confidence in campaign-
finance regulations or in the Constitution itself must
control in public-interest balancing in the preliminary
injunction context—and whether there is any cogniza-
ble public interest in maintaining likely-unconstitu-
tional restrictions in place before an election.

IV. Protective First Amendment Preliminary-
Injunction Standards Are Required.

RTAO argued that the appellate court applied a
heightened preliminary-injunction standard and placed
a heavy burden on RTAO instead of the government to
justify the preliminary injunction. (Pet. 8-11.) The
court below said that because (“for that reason”)
campaign-finance law is “a difficult and complicated
area of law that is still developing’ RTAO’s burden
would be “heavy.” (Pet. 9.) The court also used the
“clear showing” requirement to elevate the “likely”
requirement (as to success and harm) to a highly likely
requirement. (Pet. 9-10.) FEC justifies this heavy bur-



11 C.F.R. 100.220)... 0... eee 1, 2, 4, 5

11 C.FLR. 100.57. 2... eee eee 1,5

TL C.BR. 114.15. cece eee eee 1-3

Other Authorities

Transcript of Oral Argument, Citizens United v.
FEC, 130 S. Ct. 876 (No. 08-205). ..........0. 4

“Political Committee Status,” 72 Fed. Reg. 5595

@v)

Reasons to Grant the Petition

Respondents’ (collectively “FEC”) Opposition raises
broader issues than those posed by 11 C.F.R. 100.22(b)
and FEC’s PAC-status policy. FEC claims broad
authority from McConnell v. FEC, 540 U.S. 93
(2003)—and from its authority “to ‘formulate policy’
with respect to FECA” (Opp’n 2 (citation omitted))—to
regulate speech and speakers as it chooses without
congressional action and despite court decisions. FEC’s
claim defies Buckley v. Valeo, 424 U.S. 1 (1976), FEC
v. Massachusetts Citizens for Life, 479 U.S. 238 (1986)
(“MCFL’), FEC v. Wisconsin Right to Life, 551 U.S. 449
(2007) “WRTL-IP’), Citizens United v. FEC, 180 S. Ct.
876 (2010), and McConnell itself, which all establish
that FEC has narrow authority. FEC’s broad claim of
authority raises additional issues that this Court
should decide in reconciling these case lines.’

I. This Court Should Review Whether
McConnell Granted FEC Authority to Define
Statutory “Express Advocacy” as It Chooses.

RTAO showed that Buckley and MCFL established
a magic-words “express advocacy” test; that all mem-

* FEC will not enforce 11 C.F.R. 100.57 and 114.15. (Opp’n
5-7.) The former is unconstitutional and beyond statutory
authority. EMILY’s List v. FEC, 581 F.3d 1, 17-18, 21-22 (D.C.
Cir. 2009). The latter was “precisely what WRTL[-IN] sought to
avoid,” Citizens, 130 S. Ct. at 895-96, and lacks function after
Citizens held corporate speech prohibitions unconstitutional.
Claims regarding these are moot and should be handled as
FEC suggests. (Opp’n 25.) But the district court’s clear error
of law as to them was abuse of discretion and RTAO should
have received a preliminary injunction.



4

“vote.” And the Furgatch test was narrowed by the
Ninth Circuit, which held that “Furgatch ... presumed
express advocacy must contain some explicit words of
advocacy.” California Pro-Life Council v. Getman, 328
F.3d 1088, 1098 (9th Cir. 2003) (emphasis in original).

Thus, this is an important issue for the Court to de-
cide: Does the Furgatch test live on—after McConnell,
WRTL-II, and Citizens held that express advocacy
required magic words—to justify 100.22(b), and, if it
does, does it faithfully impose the test in Furgatch, as
explained in Getman?

This Court should accept this case to determine
whether the express-advocacy test requires “magic
words.” It should accept the case to decide whether
McConnell granted FEC authority to regulate speech
as it chooses without congressional action—leaving
regulation to FEC whim.* This Court should accept
this case to eliminate chilling vagueness and provide
protection for First Amendment activity. And this
Court should accept this case to halt FEC’s overreach-
ing regarding the express-advocacy test, which is of a
kind with its overreaching on the appeal-to-vote test.
See supra.

IL. This Court Should Review Whether
FEC May Base PAC Status on the
Sort of Factors Rejected in Citizens.

RTAO set out the bright-line, protective test for
PAC status established in Buckley, 424 U.S. at 79,
MCFL, 479 U.S. at 252 n.6, 262, and other federal
court decisions, including the requirement that major

S «(W]e don’t put our First Amendment rights in the hands
of FEC bureaucrats... .” Transcript of Oral Argument at 66,
Citizens, 130 S. Ct. 876 (No. 08-205) (Roberts, C.J.).

5

purpose be determined based on “an empirical judg-
ment as to whether an organization primarily engages
in regulable, election-related speech,” North Carolina
Right to Life v. Leake, 525 F.3d 274, 287 (4th Cir. 2008)
(emphasis added). (Pet. 22-28.) Essentially, a group’s
status is readily determined based on whether its
regulable disbursements for “contributions” or “inde-
pendent expenditures” (express advocacy) exceed fifty
percent of its annual disbursements.‘

FEC, however, argues that it may employ a vague,
case-by-case analysis that does not define “major
purpose” as involving only an examination of regulable
activity as fifty-percent or more of annual activity.
FEC wants PAC status to be determined on undefined
factors other than regulable speech and on something
Jess than 50 percent of disbursements.®

This raises the problems identified in Citizens,
which was decided after the Fourth Circuit decision in
the present case. Citizens rejected regulations where

* Entities controlled by candidates or designated political
committees in organic documents, e.g., as “separate segregated
funds,” would automatically be political committees.

® PEC based its PAC-status policy on regulations expand-
ing the “contribution” (by 11 C.F.R. 100.57) and “expenditure”
(by 11 C.F.R. 100.22(b)) that can trigger statutory “political
status” under 2 U.S.C. 431(4) and on its ambiguous, case-by-
case interpretation of “major purpose.” See “Political Commit-
tee Status,” 72 Fed. Reg. 5595 (2007). It used these expansive
concepts to capture as PACs organizations that had not
thought they were PACs, so had not complied with PAC
regulations, and were thus subject to substantial penalties. Id.
at 5604-05. Despite the demise of 100.57 and the unconstitu-
tionality of 100.22(b), supra, FEC insists on defending its
overly expansive enforcement policy as to “major purpose.”



10

ae »

den by saying that the standard is always “stringent.
(Opp’n 11 (citation omitted).) This case should be ac-
cepted to decide whether the standards in Winter v.
Natural Resources Defense Council, 129 S. Ct. 365
(2008), should be applied to campaign-finance litiga-
tion or whether a heavier burden should be imposed on
First Amendment challenges to campaign-finance rules
in order to obtain preliminary relief.

RTAO also argued that the appellate court failed to
require that the government bear the burden of justify-
ing its speech regulation. (Pet. 10-11.) FEC does not
address who should have the burden regarding likely
success on the merits, but it argues that RTAO had thé
burden regarding all other preliminary-injunction
requirements. (Opp’n 12.) This case should be accepted
to decide who has the burden as to likely success and
the other elements of the preliminary-injunction
standard in cases involving campaign-finance speech
restrictions. This is important since preliminary in-
junctions in First Amendment challenges to campaign-
finance laws are essential to timely protection of
citizens’ political-speech rights.

Finally, FEC argues that “petitioner appears to
have no present need for [a preliminary injunction],” so
review should be denied. (Opp’n 13.) However, FEC’s
arguments illustrate exactly why an appeal of a
preliminary-injunction denial should be accepted for
review. If improper standards are applied and im-
proper interests considered to deny a preliminary
injunction as to a particularly important opportunity
for speech, then that moment will always be lost.
RTAO has verified its intent to do similar future
activity, so the need for preliminary injunctions to be
considered under proper standards is capable of

i

repetition yet evading review. FEC’s argument that no
preliminary injunction is now required is simply a
mootness argument in new guise and must be rejected
if proper standards are to be put in place for the next
opportune speech moment. Citizens expressly rejected
any regime whereby a citizen group “learns ... wheth-
er it could have spoken . . . long after the opportunity
to persuade ... has passed.” 130 S. Ct. at 895.

Conclusion

This Court should grant the petition and decide the
issues both as to abuse of discretion and on the merits
—as there is no need to remand this case, which turns
on issues of constitutional law. The Court should also
decide how preliminary injunction standards must be
applied in First Amendment cases.

Respectfully submitted,

James Bopp, Jr.,
Counsel of Record

Michael Boos

Law OFFICE OF MICHAEL
Boos

Suite 313

4101 Chain Bridge Road

Fairfax, VA 22030

703/691-7717

703-691-7543 (facsimile)

April 2, 2010

Richard E. Coleson
Kaylan L. Phillips
Bopp, COLESON &
BosTROM

1 South 6th Street
Terre Haute, IN 47807
jboppjr@aol.com
812/232-2434
812/235-3685 (facsimile)



No. 09-724

In The
Supreme Court of the United States

The Real Truth About Obama, Inc., Petitioner
ve
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 Circuits 9
bas Se
2

¥
30

Reply to Brief in Opposition “
70
=

James Bopp, dr. a
Counsel of Record
Richard E. Coleson

Michael Boos

Law OFFICE OF MICHAEL _ Kaylan L. Phillips
Boos Bopp, COLESON &

Suite 313 BosTRoM

4101 Chain Bridge Road _—1 South 6th Street
Fairfax, VA 22030 Terre Haute, IN 47807

703/691-7717 jboppjr@aol.com
April 2, 2010 812/232-2434

Counsel for Petitioner



6

speech is chilled by an ambiguous, multi-factor test
that is likely to lead to burdensome litigation and
provides FEC unfettered discretion to determine (ex
post facto) who may speak, all heightened by severe
civil and criminal penalties. This approach provides no
protection for speakers.

First, Citizens rejected approaches where “substan-
tial time would be required to bring clarity to the
application” of a regulation. 130 S. Ct. at 895. But
FEC’s case-by-case policy would require substantial
time before it is clear what constitutes major purpose.

Second, Citizens rejects approaches not allowing for
resolution within the “short timeframes in which
speech can have influence” on elections, leaving
speakers judicial relief “long after the opportunity to
persuade primary voters has passed.” Jd. But FEC’s
policy lacks the bright lines for ready determination of
status (instead relying on lengthy, expensive, intrusive
investigations of all activities to determine status).
And this present case demonstrates starkly the inabil-
ity to obtain judicial relief in a timely fashion.

Third, Citizens requires recognition of “the primary
importance of speech itself to the integrity of the
election process” and accordingly rejects prolix and
complex rules, subjective tests, balancing, and “the
open-ended rough-and-tumble of factors’ . . . [that]
‘4nvitefes] complex arguments in a trial court and a
virtually inevitable appeal.” Jd. at 895-96 (citation
omitted). But FEC’s policy is based on a pair of ram-
bling, vague explanations in the Federal Register that
rely on numerous poorly-defined factors to determine
major purpose—just what Citizens rejected.

Finally, Citizens particularly rejects any “regime
that allows [FEC] to select what political speech is safe

7

for public consumption by applying ambiguous tests”
that have “[glovernment officials por[ing] over each
word of a text to see if, in their judgment, it accords
with the 11-factor rest. Id. at 896. That is precisely
what FEC’s policy does as to speakers, allowing FEC to
do the more intrusive and burdensome activity of
poring over every internal detail of a group’s activities
to determine whether it comports with an even more
vague major-purpose “test.” “This is an unprecedented
governmental intervention into the realm of speech.”
Id.

Thus, this Court should accept this case to decide
the important issue of whether RTAO’s bright-line,
speech-protective manner of determining PAC-status
or FEC’s vague multi-factor ex post facto test is more
consistent with this Court’s precedent. This issue is
particularly important because Citizens permits more
groups to engage in political speech. They should not
be subjected to the chill of having vague, subjective
standards allowing ex post facto findings of PAC status
(with substantial penalties) after burdensome, intru-
sive investigations.

Il. This Court Should Review Whether the PAC
Option Removes Irreparable Harm and
What Interests Justify PAC Burdens.

In First Amendment cases, the other preliminary
injunction factors should essentially follow from the
finding as to likely success on the merits. The court
below rejected that approach. Three FEC arguments
highlight why this case should be reviewed.

First, RTAO sought pre-enforcement judicial relief
both to avoid onerous PAC burdens and to avoid being
deemed a PAC ex post facto and thereby liable for
substantial civil and criminal penalties for noncompli-



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.

10)



Table of Contents

Corporate Disclosure... 2.0.0.0... 0000 cee eae @
Table of Authorities. ......... 0.0.0. cece eee ii)
Reasons to Grant the Petition. ................. 1

I. This Court Should Review Whether
McConnell Granted FEC Authority to De-
fine Statutory “Express Advocacy” as It

Il. This Court Should Review Whether FEC
May Base PAC Status on the Sort of Fac-
tors Rejected in Citizens.............-...- 4

Ill. This Court Should Review Whether the
PAC Option Removes Irreparable Harm
and What Interests Justify PAC Burdens... . 7

IV. Protective First Amendment Preliminary-
Injunction Standards Are Required......... 9

Conclusion. .. 6.6... 6c eee eee 11

Gi)

Table of Authorities

Cases
Buckley v. Valeo, 424 U.S. 1 (1976). ....... 1-2, 4,8

California Pro-Life Council v. Getman, 328 F.3d
1088 (9th Cir. 2003)........cceccseeecesees 4

Citizens United v. FEC, 130 S. Ct. 876 (2010).. 1-9,11
EMILY’s List v. FEC, 81 F.3d 1 (D.C. Cir. 2009)... 1
FEC v. Furgatch, 807 F.2d 857 (9th Cir. 1987)... 3, 4

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

238 (1986)... 6... eee eee eee 1,4
FEC v. Wisconsin Right to Life, 551 U.S. 449 (2007)

bbb cece bee ebeseebeseaneeeeneres 1, 3-4, 8-9
McConnell v. FEC, 540 U.S. 93 (2003)........ 1-2, 4

North Carolina Right to Life v. Leake, 525 F.3d 274
(4th Cir. 2008)... 0.0... c ccc e eee e cece ee 3,5

Winter v. Natural Resources Defense Council, 129 S.
Ct. 365 (2008)... eee eee 10

Constitutions, Statutes, Regulations & Rules
U.S. Const. amend. LL... 6... eee eee passim

2US.C. 4814). cee eee eee 5

(iii)