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CASE ARGUED JANUARY 27, 2010, DECIDED MARCH 26, 2010 

No. 08-5223 (L), 09-5342 

__________________

UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

SPEECHNOW.ORG, DAVID KEATING, 

FRED M. YOUNG, JR., EDWARD H. CRANE, III, 

BRAD RUSSO and SCOTT BURKHARDT, 

Appellants, 

 

v. 

 

FEDERAL ELECTION COMMISSION, 

 

Appellee. 

__________________

On Appeal from the United States District Court 

for the District of Columbia, 

Case No. 08-cv-00248 (JR) 

__________________

APPELLANTS’ MOTION FOR IMMEDIATE 

ISSUANCE OF THE MANDATE 

 Pursuant to D.C. Cir. Rule 41, this Court has directed the Clerk to 

withhold issuance of the mandate in this case until “seven days after 

disposition of any timely petition for rehearing.” Order of March 26, 2010. 

The Court specified, however, that its instruction was “without prejudice to 

the right of any party at any time to move for expedited issuance of the 

mandate for good cause shown.” Id. Plaintiffs asked for expedited 

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consideration of this appeal so that they may speak for and against 

candidates in the 2010 primary season. With that season now upon us, 

SpeechNow.org and the Individual Plaintiffs respectfully move that the 

Court direct the Clerk to issue the mandate immediately. 

 Plaintiffs have been litigating this case for more than two years. Soon 

after filing this case, Plaintiffs sought a preliminary injunction so they could 

run their advertisements in races during the 2008 election season. The 

District Court denied that motion, however, preventing Plaintiffs from 

running their planned advertisements during the entire 2008 primary and 

general election season. Cf. Citizens United v. FEC, 130 S. Ct. 876, 895 

(2010) (discussing the fact that Citizens United was prevented from 

speaking for two years). 

 Plaintiffs would like to run advertisements during the 2010 election 

season, but the mandate in this case will not issue under this Court’s order 

until May 17, 2010 at the earliest. Two states, Illinois and Texas, have 

already held their primaries, and twenty-three others are scheduled to hold 

their primaries between now and June 8, 2010. Federal Election 

Commission, 2010 Congressional Primary Dates and Candidate Filing 

Deadlines for Ballot Access, http://www.fec.gov/pubrec/fe2010/ 

2010pdates.pdf. Even after the mandate issues, there will be additional 

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proceedings in the District Court before a final judgment issues that allows 

Plaintiffs to begin their operations. Once that happens, the individual 

Plaintiffs must transfer their funds to SpeechNow.org and SpeechNow.org 

must produce and begin broadcasting its advertisements, which will take 

additional time. In light of this Court’s decision holding that Plaintiffs have 

a First Amendment right to raise funds in unlimited amounts to finance their 

advertisements, the public interest is plainly served by allowing the 

proceedings on remand to go forward as quickly as possible. 

 In addition, there is no good reason to delay issuance of the mandate. 

Plaintiffs do not intend to petition for rehearing. While the Federal Election 

Commission has informed Plaintiffs’ counsel that it opposes this motion, it 

has not indicated whether it intends to seek rehearing. However, there is no 

reason to believe that this Court would grant a petition for rehearing from 

what was a unanimous en banc decision. There is therefore no reason to 

delay issuance of the mandate, particularly when Plaintiffs have such a short 

window of opportunity to speak effectively. 

 For the foregoing reasons, the Plaintiffs respectfully request 

that the Court direct the Clerk to issue the mandate immediately. 

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Respectfully submitted, 

/s/ Steven M. Simpson

Steven M. Simpson (DC Bar No. 462553) 

William H. Mellor (DC Bar No. 462072) 

Robert Gall (DC Bar No. 482476) 

Robert P. Frommer (DC Bar No. 497308) 

Paul M. Sherman (DC Bar No. 978663) 

INSTITUTE FOR JUSTICE

901 N. Glebe Road, Suite 900 

Arlington, VA 22203 

Tel: (703) 682-9320 

Email: wmellor@ij.org, ssimpson@ij.org, 

bgall@ij.org, rfrommer@ij.org, 

psherman@ij.org 

Stephen M. Hoersting 

Bradley A. Smith 

CENTER FOR COMPETITIVE POLITICS

124 W. Street South, Suite 201 

Alexandria, VA 22314 

Tel: (703) 894-6800 

Email: shoersting@campaignfreedom.org, 

BSmith@law.capital.edu 

Attorneys for Plaintiffs 

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CERTIFICATE OF SERVICE 

 I certify that on April 16, 2010, a true and correct copy of 

APPELLANTS’ MOTION FOR IMMEDIATE ISSUANCE OF THE 

MANDATE was filed electronically using the court’s ECF system and sent 

via the ECF electronic notification system to the following counsel of 

record: 

Robert W. Bonham, III 

David B. Kolker 

Steve N. Hajjar 

Kevin Deeley 

FEDERAL ELECTION COMMISSION

999 E. Street, N.W. 

Washington, DC 20463 

 /s/ Steven M. Simpson 

 Steven M. Simpson 

 Counsel for Plaintiffs 

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