No. 08-2257 

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT 

HOLLY LYNN KOERBER and 

COMMITTEE FOR TRUTH IN POLITICS, INC., Plaintiffs-Appellants, 

v. 

FEDERAL ELECTION COMMISSION, Defendant-Appellee. 

On Appeal from the United States District Court 

for the Eastern District of North Carolina 

BRIEF OF APPELLEE FEDERAL ELECTION COMMISSION 

THOMASENIA P. DUNCAN 

General Counsel 

 DAVID KOLKER 

Associate General Counsel 

HARRY J. SUMMERS 

Assistant General Counsel 

CLAIRE N. RAJAN 

Attorney 

Federal Election Commission 

999 E Street NW 

Washington, DC 20463 

 April 17, 2009
TABLE OF CONTENTS 

JURISDICTIONAL STATEMENT ..........................................................................1 

COUNTERSTATEMENT OF ISSUES PRESENTED.............................................1 

STATUTES AND REGULATIONS.........................................................................1 

COUNTERSTATEMENT OF THE CASE...............................................................1 

COUNTERSTATEMENT OF FACTS .....................................................................2 

I. STATUTORY AND REGULATORY BACKGROUND ..............................3 

 A. Electioneering Communications ...........................................................3 

 B. MCFL Corporations ..............................................................................8 

 C. Political Committee Status....................................................................8 

II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY................10 

A. Federal Election Commission .............................................................10 

B. Appellants’ Activities..........................................................................10 

C. Procedural History...............................................................................12 

SUMMARY OF THE ARGUMENT ......................................................................14 

ARGUMENT ...........................................................................................................16 

I. STANDARD OF REVIEW...........................................................................16 

II. APPELLANTS CANNOT DEMONSTRATE IRREPARABLE HARM....18 

 A. CTP’s Speech Is Not Restricted..........................................................19 

 B. CTP Alleges No Irreparable Harm From Disclosure 

 Or Potential Status As A Political Committee ....................................21 

i
 C. CTP Cannot Demonstrate Irreparable Harm Based On Its 

Alleged Fears Of A Commission Enforcement Action ......................24 

III. APPELLANTS ARE NOT LIKELY TO SUCCEED ON THE MERITS ...29 

 A. Appellants Are Not Likely To Succeed On The Merits Of 

Their Challenge To The Disclosure Requirements For 

Electioneering Communications .........................................................29 

1. The Supreme Court Has Upheld The EC Disclosure 

Requirements On Their Face ....................................................29 

 2. Disclosure Requirements Are Subject To 

Intermediate Scrutiny ...............................................................33 

 3. Disclosure Requirements Have Been Upheld As To 

Spending On “Issue” Speech That Cannot Constitutionally 

Be Limited.................................................................................36 

 4. The Disclosure Provisions Serve Important Government 

Interests By Providing Information To The Public ..................39 

 5. Disclosure Requirements Support The Important 

Government Interest In Law Enforcement ...............................43 

 6. Appellants Demonstrate No Constitutional Burden 

Arising From The Disclosure Provisions..................................46 

 B. Appellants Are Not Likely To Succeed On The Merits Of Their 

 Challenge To The Analysis The Commission Uses To Determine 

Political Committee Status..................................................................49 

1. The Commission’s Enforcement Analysis Is Not Reviewable 

 Under The Administrative Procedure Act ................................50 

2. The Commission’s Political Committee Analysis Is Lawful ...52 

 a. Standard Of Review ............................................................52 

ii
 b. The Commission’s Political Committee Analysis 

 Is Neither Vague Nor Overbroad.......................................53 

IV. THE PUBLIC INTEREST AND THE BALANCE OF HARMS 

WEIGH AGAINST THE ISSUANCE OF A PRELIMINARY 

INJUNCTION................................................................................................57 

V. CONCLUSION..............................................................................................59 

ORAL ARGUMENT ...............................................................................................60 

iii
TABLE OF AUTHORITIES 

Cases 

AFL-CIO v. FEC, 333 F.3d 168 (D.C. Cir. 2003) ...................................................28 

Agostini v. Felton, 521 U.S. 203 (1997) ..................................................................32 

Alaska Right To Life Comm. v. Miles, 441 F.3d 773 (9th Cir. 2006)..........34, 45, 47 

Bennett v. Spear, 520 U.S. 154 (1997) ....................................................................50 

Blackwelder Furniture Co. of Statesville, Inc. v. Seilig Mfg. Co., 

550 F.2d 189 (4th Cir. 1977) ............................................................ 16- 18, 24 

Broadrick v. Oklahoma, 413 U.S. 601 (1973).........................................................52 

Brock v. Cathedral Bluffs Shale Oil Co., 796 F.2d 533 (D.C. Cir. 1986) ...............50

Brown v. Socialist Workers ’74 Campaign Comm., 

459 U.S. 87 (1982)........................................................................21-22, 46-47 

Buckley v. Am. Constitutional Law Found., Inc., 525 U.S. 182 (1999) ......34, 39, 48 

Buckley v. Valeo, 424 U.S. 1 (1976) ............................................................... passim 

Center for Individual Freedom v. Carmouche, 449 F.3d 655 (5th Cir. 2006), 

cert. denied, 127 S. Ct. 938 (2007)................................................................34 

Center for Individual Freedom, Inc. v. Ireland, Nos. 08-190 & 08-1133, 

2008 WL 4642268 (S.D. W. Va. Oct. 17, 2008), superseded by 

2009 WL 749868 (S.D. W. Va. Feb. 12, 2009) (CFIF)................................47 

Chaplaincy of Full Gospel Churches v. England, 

454 F.3d 290 (D.C. Cir. 2006).......................................................................23 

Christian Knights of the Ku Klux Klan Invisible Empire, Inc. v. District of 

Columbia, 919 F.2d 148 (D.C. Cir. 1990)............................................... 23-24 

Citizens Against Rent Control v. Berkeley, 454 U.S. 290 (1981)................ 36-37, 39 

iv
Citizens United v. FEC, 530 F. Supp. 2d 274 (D.D.C. 2008)..................7, 32, 37, 47 

Citizens United v. FEC, Civ. No. 07-2240, 2008 WL 2788753 

(D.D.C. Jul. 18, 2008) .....................................................................................7 

Citizens United v. FEC, 128 S. Ct. 1732 (2008)........................................................7 

Citizens United v. FEC, 129 S. Ct. 594 (2008)..........................................................7 

Dan River, Inc. v. Icahn, 701 F.2d 278 (4th Cir. 1983)...........................................28 

Davis v. FEC, 128 S. Ct. 2759 (2008) ...............................................................34, 45 

Direx Israel, Ltd. v. Breakthrough Med. Corp., 

952 F.2d 802 (4th Cir. 1991) .........................................................................17 

Elrod v. Burns, 427 U.S. 347 (1976) ................................................................. 23-24 

FEC v. Christian Action Network, Inc., 110 F.3d 1049 (4th Cir. 1997) .................28 

FEC v. Christian Coalition, 52 F. Supp. 2d 45 (D.D.C. 1999) ......................... 27-28 

FEC v. GOPAC, Inc., 917 F. Supp. 851 (D.D.C. 1996)..........................................55 

FEC v. Machinists Non-Partisan Political League, 

655 F.2d 380 (D.C. Cir. 1981)................................................................. 26-27 

FEC v. Malenick, 310 F. Supp. 2d 230 (D.D.C. 2004)............................................55 

FEC v. Massachusetts Citizens for Life, Inc., 

479 U.S. 238 (1986) (MCFL) ................................................................ passim

FEC v. Nat’l Conservative Political Action Comm., 

470 U.S. 480 (1985).......................................................................................20 

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

127 S. Ct. 2652 (2007) (WRTL)............................................................. passim 

First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765 (1978)..............................37, 39 

Fla. League of Prof’l Lobbyists, Inc. v. Meggs, 87 F.3d 457 (11th Cir. 1996) ......41 

v
Flue-Cured Tobacco Coop. Stabilization Corp. v. EPA, 

313 F.3d 852 (4th Cir. 2002) .........................................................................50 

FTC v. Standard Oil Co. of Cal., 449 U.S. 232 (1980) ...........................................25 

Giovani Carandola, Ltd. v. Bason, 303 F.3d 507 (4th Cir. 2002)...........................24 

Grayned v. City of Rockford, 408 U.S. 104 (1972) .................................................53 

In re Microsoft Corp. Antitrust Litig., 333 F.3d 517 (4th Cir. 2003) ......................16 

Invention Submission Corp. v. Rogan, 357 F.3d 452 (4th Cir. 2004) .....................50 

Jackson v. Leake, 476 F. Supp. 2d 515 (E.D.N.C. 2006)..................................34, 59 

Johanns v. Livestock Mktg. Ass’n, 544 U.S. 550 (2005) .........................................43 

Jones v. Unknown Agents of FEC, 613 F.2d 864 (D.C. Cir. 1979).........................34 

Longshoremen’s Union v. Boyd, 347 U.S. 222 (1954)............................................50 

Master Printers of Am. v. Donovan, 751 F.2d 700 (4th Cir. 1984)...................35, 41 

McConnell v. FEC, 540 U.S. 93 (2003)........................................................... passim 

McConnell v. FEC, 251 F. Supp. 2d 176 (D.D.C. 2003)................................... 29-30 

MicroStrategy Inc. v. Motorola, Inc., 245 F.3d 335 (4th Cir. 2001).......................16 

Minn. State Ethical Practices Bd. v. NRA, 761 F.2d 509 (8th Cir. 1985) ...............41 

NAACP v. Alabama, 357 U.S. 449 (1958)............................................. 21, 35, 46-47 

Nat’l Ass’n of Mfrs. v. Taylor, 549 F. Supp. 2d 68 (D.D.C. 2008), 

appeal pending, No. 08-5085 (D.C. Cir.) (NAM)..............................17, 22, 41 

Nat’l Elec. Mfrs. Ass’n v. Sorrell, 272 F.3d 104 (2d Cir. 2001)..............................48 

New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 

434 U.S. 1345 (1977) ....................................................................................57 

New York v. Ferber, 458 U.S. 747 (1982) ...............................................................52 

vi
Newsom v. Albemarle County Sch. Bd., 354 F.3d 249 (4th Cir. 2003) ...................18 

North Carolina Right to Life, Inc. v. Bartlett, 

168 F.3d 705 (4th Cir. 1999) ........................................................................26 

North Carolina Right to Life Comm. Fund for Indep. Political Expenditures 

v. Leake, 524 F.3d 427 (4th Cir. 2008) (Leake I) ....................................35, 40 

North Carolina Right to Life, Inc. v. Leake, 

525 F.3d 274 (4th Cir. 2008) (Leake II) ................................32, 33, 35, 39, 56 

Ohio Citizens for Responsible Energy, Inc. v. NRC, 

479 U.S. 1312 (1986) ....................................................................................17 

Ohio Right to Life Soc., Inc. v. Ohio Elections Comm’n, No. 08-492, 

2008 WL 4186312 (S.D. Ohio Sept. 5, 2008) (ORTL) .....................32, 34, 47 

Perot v. FEC, 97 F.3d 553 (D.C. Cir. 1996)............................................................24 

Purcell v. Gonzalez, 549 U.S. 1 (2006) ...................................................................16 

Real Truth About Obama, Inc. v. FEC, No. 08-483, 2008 WL 4416282 

(E.D. Va. Sept. 24, 2008) (RTAO)................................................. 9, 51, 56-59 

Renne v. Geary, 501 U.S. 312 (1991)......................................................................50 

Richlin Sec. Serv. Co. v. Chertoff, 128 S. Ct. 2007 (2008)......................................11 

Sampson v. Murray, 415 U.S. 61 (1974) .................................................................18 

Scotts Co. v. United Indus. Corp., 315 F.3d 264 (4th Cir. 2002) ......................18, 28 

Shays v. FEC, 511 F. Supp. 2d 19 (D.D.C. 2007).............................................51, 54 

Shays v. FEC, 528 F.3d 914 (D.C. Cir. 2008) .........................................................13 

Smith v. Frye, 488 F.3d 263 (4th Cir. 2007), 

cert. denied, 128 S. Ct. 653 (2007)................................................................23 

Tenn. Student Assistance Corp. v. Hood, 541 U.S. 440 (2004)...............................32 

Turner Broad. Sys., Inc. v. FCC, 507 U.S. 1301 (1993) .........................................17 

vii
United States. v. Gregory, 871 F.2d 1239 (4th Cir. 1989) ......................................11 

United States v. Harriss, 347 U.S. 612 (1954) ............................................ 40-41, 48 

United States v. M/V Sanctuary, 540 F.3d 295 (4th Cir. 2008)...............................17 

United States v. Oakland Cannabis Buyer’s Co-op., 

532 U.S. 483 (2001)................................................................................. 57-58 

United States v. Salerno, 481 U.S. 739 (1987)........................................................52 

U.S. Dep’t of Labor v. Wolf Run Mining Co., 

452 F.3d 275 (4th Cir. 2006).........................................................................17 

Univ. of Tex. v. Camenisch, 451 U.S. 390 (1981) ...................................................16 

Va. Ry. Co. v. Ry. Employees, 300 U.S. 515 (1937)................................................58 

Wis. Right to Life, Inc. v. FEC, 542 U.S. 1305 (2004) ............................................58 

Wis. Right to Life, Inc. v. FEC, Civ. No. 04-1260 (D.D.C. July 28, 2004).............31 

Walters v. Nat’l Ass’n of Radiation Survivors, 468 U.S. 1323 (1984)....................57 

Statutes and Regulations 

2 U.S.C. § 431(4) .....................................................................................................49 

2 U.S.C. § 431(4)(A)..................................................................................................8 

2 U.S.C. § 431(4)(B)............................................................................................3, 54 

2 U.S.C. § 431(8)(A)(i)..........................................................................................3, 5 

2 U.S.C. § 431(9)(A)(i)..............................................................................................3 

2 U.S.C. § 433............................................................................................................8 

2 U.S.C. § 434............................................................................................................8 

2 U.S.C. § 434(f)(1) .................................................................................................21 

viii
2 U.S.C. § 434(f)(2) .........................................................................................1, 5, 21 

2 U.S.C. § 434(f)(3)(A)............................................................................................11 

2 U.S.C. § 434(f)(3)(A)(i)..........................................................................................5 

2 U.S.C. § 437c(b)(1)...............................................................................................10 

2 U.S.C. § 437d(a)(7)...............................................................................................10 

2 U.S.C. § 437d(a)(8)...............................................................................................10 

2 U.S.C. § 437f.........................................................................................................10 

2 U.S.C. § 437g........................................................................................................10 

2 U.S.C. § 437g(a)(1)...............................................................................................25 

2 U.S.C. § 437g(a)(2)...............................................................................................24 

2 U.S.C. § 437g(a)(3)...............................................................................................25 

2 U.S.C. § 437g(a)(4)...............................................................................................25 

2 U.S.C. § 437g(a)(5)...............................................................................................25 

2 U.S.C. § 437g(a)(6)...............................................................................................25 

2 U.S.C. § 441a(a)(1)(C)............................................................................................9 

2 U.S.C. § 441b(a) .................................................................................................3, 5 

2 U.S.C. § 441b(b)(2)...........................................................................................5, 41 

2 U.S.C. § 441b(b)(2)(C) ...........................................................................................3 

2 U.S.C. § 441d......................................................................................................1, 5 

2 U.S.C. § 441d(a)(3).................................................................................................5 

5 U.S.C. § 704..........................................................................................................50 

ix
26 U.S.C. § 527........................................................................................................51 

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

28 U.S.C. § 1331........................................................................................................1 

Bipartisan Campaign Reform Act of 2002 (“BCRA”), 

Pub. L. No. 107-155, 116 Stat. 81 ......................................................... passim

Federal Election Campaign Act of 1971 (“FECA”), 2 U.S.C. §§ 431-55....... passim 

Tillman Act, Ch. 420, 34 Stat. 864 (1907) ................................................................3 

11 C.F.R. § 104.20 .....................................................................................................5 

11 C.F.R. § 104.20(c)...............................................................................................28 

11 C.F.R. § 110.11 .....................................................................................................5 

11 C.F.R. § 114.10 .....................................................................................................8 

11 C.F.R. § 114.12 ...................................................................................................20 

11 C.F.R. § 114.15 ...................................................................................................20

11 C.F.R. § 114.15(b) ..........................................................................................7, 20 

11 C.F.R. § 114.15(f) ...............................................................................................28 

Administrative Materials 

Electioneering Communications, 72 Fed. Reg. 72,899 (Dec. 26, 2007).............7, 46 

Express Advocacy; Independent Expenditures; Corporate and Labor 

Organization Expenditures, 60 Fed. Reg. 35,292 (July 6, 1995)............ 22-23 

FEC Advisory Opinion 1990-13..............................................................................46 

FEC Advisory Opinion 1996-46..............................................................................46 

FEC Advisory Opinion 2003-02..............................................................................46 

x
xi

FEC Advisory Opinion 2009-01..............................................................................46 

Matters Under Review 5779/5805 (City of Santa Clarita) ......................................55 

Matters Under Review 5820/5843 (ACORN) .........................................................55 

Matter Under Review 5928 (Kos Media LLC)........................................................55 

Political Committee Status, 72 Fed. Reg. 5595 (Feb. 7, 2007) ....................... passim 

Miscellaneous 

Fed. R. Evid. 201 .....................................................................................................11 

Fed. R. Evid. 803(6).................................................................................................11 

Comments on FEC Notice of Proposed Rulemaking 2004-6 (Political Committee 

Status), available at 

http://www.fec.gov/pdf/nprm/political_comm_status/comm3/52.pdf. ...................31 

 
JURISDICTIONAL STATEMENT 

The district court had jurisdiction over this action pursuant to 28 U.S.C. 

§1331. This Court has jurisdiction pursuant to 28 U.S.C. §1292(a)(1) over the 

interlocutory appeal of the district court’s denial of appellants’ preliminary 

injunction motion. The district court denied this motion by order dated October 

29, 2008 (J.A. 27-44). A notice of appeal was filed on October 31, 2008. (J.A. 

45-46.) 

COUNTERSTATEMENT OF ISSUES PRESENTED 

Whether the district court abused its discretion in declining to preliminarily 

enjoin the Federal Election Commission (Commission) from (1) enforcing the 

electioneering communication reporting requirements, 2 U.S.C. §434(f)(2), and 

disclaimer requirements, 2 U.S.C. §441d, as to appellant Committee for Truth in 

Politics (CTP); and (2) pursuing the Commission’s approach to political committee 

status. 

STATUTES AND REGULATIONS 

An addendum contains relevant statutory and regulatory provisions. 

COUNTERSTATEMENT OF THE CASE 

This case presents an as-applied challenge to two campaign finance 

disclosure provisions and a facial and as-applied challenge to the analysis the 

Commission uses to determine whether an organization is a “political committee.” 

1
At the height of the nationwide 2008 general election campaign, appellants CTP 

and Holly Lynn Koerber requested that the district court preliminarily enjoin the 

Commission from enforcing these provisions. The district court denied appellants’ 

preliminary injunction motion, holding that they were unlikely to prevail on the 

merits of their challenges and that the harm an injunction would likely cause to the 

public and the Commission outweighed appellants’ unsupported assertions of 

injury to themselves. Appellants timely appealed. 

COUNTERSTATEMENT OF FACTS 

 This case involves no limits on speech. CTP did in fact broadcast a 

television ad in October 2008 that criticized then-Senator Obama for, inter alia, 

voting four times “against protecting infants that survived late term abortions” 

(J.A. 13-14 ¶¶31-32). CTP also intended to broadcast another ad that criticized 

Obama for being the “only member” of the Illinois Senate who “voted to allow 

early release for convicted sexual abusers” (J.A. 14-15 ¶33). The parties agree 

that, under the Federal Election Campaign Act of 1971, as amended (FECA or 

Act), 2 U.S.C. §§431-55, CTP can pay for these ads with its corporate funds 

without restriction. CTP challenges only FECA’s disclosure requirements for 

these ads, and the analysis the Commission uses to determine whether CTP is a 

“political committee” under the Act. Even if CTP were a political committee, 

however, nothing in the Act would restrict its speech. 

2
I. STATUTORY AND REGULATORY BACKGROUND 

A. Electioneering Communications 

 Under FECA, “contribution” is defined to include giving anything of value 

“for the purpose of influencing any election for Federal office.” 2 U.S.C. 

§431(8)(A)(i). Similarly, “expenditure” is defined to include spending “for the 

purpose of influencing any election for Federal office.” 2 U.S.C. §431(9)(A)(i). 

The Act generally prohibits corporations and labor unions from making any 

contribution or expenditure from their treasury funds, 2 U.S.C. §441b(a), but they 

may establish “separate segregated fund[s],” commonly known as PACs, to make 

such disbursements. See 2 U.S.C. §§431(4)(B), 441b(b)(2)(C). 

 For a century, federal law has required disclosure related to election 

campaigns. Tillman Act, Ch. 420, 34 Stat. 864 (1907). Congress significantly 

increased the scope of the disclosure requirements in 1974, and the Supreme Court 

upheld the amended provisions, explaining that disclosure serves the important 

government interests of (1) providing the electorate with information on campaign 

financing “to aid the voters in evaluating those who seek federal office,” 

(2) “deter[ring] actual corruption and avoid[ing] the appearance of corruption by 

exposing large contributions and expenditures to the light of publicity,” and 

(3) “gathering the data necessary to detect violations of the contribution 

3
limitations” that were simultaneously enacted. Buckley v. Valeo, 424 U.S. 1, 66-68 

(1976). 

Because the phrase “‘for the purpose of ... influencing’” an election in the 

statutory definition of “expenditure” raised “serious problems of vagueness” for 

entities whose major purpose was not campaign activity, the Supreme Court 

construed the disclosure provisions for those entities “to reach only funds used for 

communications that expressly advocate the election or defeat of a clearly 

identified candidate,” i.e., “spending that is unambiguously related to the campaign 

of a particular federal candidate.” Id. at 76, 79-80. 

Congress later determined that the “express advocacy” standard was easy to 

evade and that entities had been funding broadcast ads designed to influence 

federal elections “while concealing their identities from the public” and “hiding 

behind dubious and misleading names.” McConnell v. FEC, 540 U.S. 93, 196-97 

(2003). In 2002, Congress amended FECA to prohibit corporations and labor 

unions from using general treasury funds to finance electioneering 

communications, which the statute defined as a “broadcast, cable, or satellite 

communication” that (a) refers to a clearly identified federal candidate, and (b) is 

made within sixty days before a general election or thirty days before a primary 

4
election in which that candidate is running. See 2 U.S.C. §§434(f)(3)(A)(i), 

441b(a),(b)(2).1

 

Electioneering communications (ECs) are subject to reporting requirements, 

2 U.S.C. §434(f)(2); 11 C.F.R. §104.20, and disclaimer requirements, 2 U.S.C. 

§441d; 11 C.F.R. §110.11 (referred to herein collectively as the “disclosure 

requirements”). Every person who spends in excess of $10,000 on ECs in any 

calendar year must report information, including the identity of the person making 

the disbursement; the amount and recipient of each disbursement over $200; and 

the names and addresses of contributors who give $1,000 or more in the calendar 

year to the person making the disbursement. 2 U.S.C. §434(f)(2). The relevant 

disclaimer provision requires each communication to “clearly state the name and 

[contact information of the payor] and state that the communication is not 

authorized by any candidate or candidate’s committee.” 2 U.S.C. §441d(a)(3). 

Immediately after BCRA was enacted, parties challenged the 

constitutionality of the same EC disclosure provisions that are at issue in this case, 

as well as BCRA’s restrictions on corporate financing of ECs. The Supreme Court 

rejected these challenges in McConnell, 540 U.S. at 196-99, 203-09, 230-31. The 

Court upheld the reporting requirements because they did not suppress speech, id. 

 

1

 The 2002 amendments to FECA are called the Bipartisan Campaign Reform 

Act of 2002 (BCRA), Pub. L. No. 107-155, 116 Stat. 81. 

5
at 197-99, 201, and because “important state interests” “amply support[]” the 

requirements. Id. at 196. The Court noted that although plaintiffs did not provide 

sufficient “specific evidence” of harm, if other organizations could show a 

“reasonable probability” that compelled disclosure would subject their funders to 

“threats, harassment, or reprisals,” the burdens of disclosure might outweigh the 

government interests. Id. at 197-99 (citation and quotation marks omitted). Eight 

justices also upheld the disclaimer requirements, explaining that they bore “a 

sufficient relationship to the important governmental interest of ‘shed[ding] the 

light of publicity’ on campaign financing.” Id. at 231 (quoting Buckley, 424 U.S. 

at 81). 

Four years later, in FEC v. Wisconsin Right to Life, Inc., 551 U.S. 449, 127 

S. Ct. 2652 (2007) (WRTL), the controlling opinion held that a corporation may use 

its general treasury funds to finance an EC unless the communication is the 

“functional equivalent of express advocacy,” which the Court defined as a 

communication that “is susceptible of no reasonable interpretation other than as an 

appeal to vote for or against a specific candidate.” Id. at 2667. This holding 

created two categories of communications that meet the statutory definition of an 

EC: (1) ECs that are the functional equivalent of express advocacy, which are 

subject to the corporate funding restriction; and (2) ECs that are susceptible of an 

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

6
(hereinafter “WRTL ads”), which may be financed with the general treasury funds 

of corporations or unions. The plaintiff in WRTL did not challenge BCRA’s 

disclosure provisions, and the Court did not address them. To implement the 

WRTL decision, the Commission promulgated a regulatory exemption from the 

corporation and labor organization funding prohibitions. 11 C.F.R. §114.15(b). 

The Commission determined that it did not have authority to alter the disclosure 

rules because they were not challenged or discussed in any of WRTL’s four 

opinions. See Electioneering Communications, 72 Fed. Reg. 72899, 72901 (Dec. 

26, 2007). 

In 2008, a three-judge panel unanimously rejected a preliminary injunction 

request in a challenge to the same EC disclosure provisions at issue here. Citizens 

United v. FEC, 530 F. Supp. 2d 274, 281-82 (D.D.C. 2008). The Supreme Court 

declined to review the denial of the preliminary injunction. Citizens United v. 

FEC, 128 S. Ct. 1732 (2008). The three-judge panel also unanimously rejected the 

plaintiff’s claims on summary judgment, Citizens United v. FEC, Civ. No. 07-

2240, 2008 WL 2788753 (D.D.C. Jul. 18, 2008). That plaintiff appealed directly 

to the Supreme Court and the Court noted probable jurisdiction. Citizens United v. 

FEC, 129 S. Ct. 594 (2008). The Court heard oral argument on March 24, 2009, 

and will likely issue an opinion this term. 

7
B. MCFL Corporations 

Although corporations generally cannot finance express advocacy or 

electioneering communications that are the functional equivalent of express 

advocacy from their general treasury funds, a small number of corporations are 

entitled to do so. In FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. 238, 

264 (1986) (MCFL), the Supreme Court exempted corporations that (1) are formed 

for the express purpose of promoting political ideas, not to engage in business 

activities; (2) have no shareholders or other persons so as to have a claim on the 

corporations’ assets or earnings; and (3) were not established by a corporation or a 

labor union, and have a policy not to accept contributions from such entities. See 

also McConnell, 540 U.S. at 209-11 (construing BCRA to allow MCFL

corporations to use corporate funds to finance ECs); 11 C.F.R. §114.10. 

C. Political Committee Status

FECA provides that any “committee, club, association, or other group of 

persons” that receives over $1,000 in contributions or makes over $1,000 in 

expenditures in a calendar year is a “political committee.” 2 U.S.C. §431(4)(A). 

Political committees must register with the Commission and file periodic reports 

for disclosure to the public of all their receipts and disbursements, with exceptions 

for most transactions below a $200 threshold. See 2 U.S.C. §§433, 434. No 

8
person may contribute more than $5,000 per calendar year to any one political 

committee (other than political party committees). 2 U.S.C. §441a(a)(1)(C). 

In Buckley, the Supreme Court held that defining political committee status 

“only in terms of amount of annual ‘contributions’ and ‘expenditures’” might 

result in overbroad application of FECA’s political committee requirements by 

reaching “groups engaged purely in issue discussion.” 424 U.S. at 79. The Court 

therefore concluded that the Act’s political committee provisions “need only 

encompass organizations that are under the control of a candidate or the major 

purpose of which is the nomination or election of a candidate.” Id. Thus, a noncandidate-controlled entity must register as a political committee only if the entity 

crosses the $1,000 threshold of contributions or expenditures and its “major 

purpose” is the nomination or election of federal candidates. 

In September 2008, a court in the Eastern District of Virginia denied a 

preliminary injunction request in a challenge to, inter alia, the Commission’s 

approach to political committee status. Real Truth About Obama, Inc. v. FEC, No. 

08-483, 2008 WL 4416282 (E.D. Va. Sept. 24, 2008) (RTAO). That denial is 

currently on appeal before this Court, and oral argument is scheduled for May 13, 

2009. 

9
II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY 

A. Federal Election Commission 

The Commission is the independent agency of the United States government 

with exclusive jurisdiction to administer, interpret, and civilly enforce FECA. The 

Commission is empowered to “formulate policy” with respect to the Act, 2 U.S.C. 

§437c(b)(1); “to make, amend, and repeal such rules ... as are necessary to carry 

out the provisions of [the] Act,” 2 U.S.C. §437d(a)(8); to issue advisory opinions 

construing the Act, 2 U.S.C. §§437d(a)(7), 437f; and to civilly enforce the Act, 

2 U.S.C. §437g. 

B. Appellants’ Activities 

CTP is a nonprofit “ideological” corporation. (J.A. 8 ¶6.) CTP incorporated 

in North Carolina on September 26, 2008, one week prior to filing this lawsuit. 

(FEC Opp. to Prelim. Inj. Exh. 1 (Docket No. 21).) CTP alleges that it is a 

corporation whose characteristics entitle it to use its general corporate funds to 

make unlimited independent expenditures and electioneering communications 

under MCFL, 479 U.S. at 264. (J.A. 12 ¶¶26-27.) On October 2, 2008, CTP’s ad 

Basic Rights was broadcast in Pennsylvania, North Carolina, and Wisconsin. (J.A. 

13 ¶31.) CTP also alleges that it intended to broadcast Basic Rights and another 

ad, Tragic, but True, before the general election in November. (J.A. 13 ¶31.) The 

ads criticize then-Senator Obama for voting against protection for infants that 

10
survive late term abortions (Basic Rights) and voting for the early release of 

convicted child predators and other sex offenders (Tragic, but True). The ads 

invite viewers to “Call Senator Obama” and tell him to change his position or 

support certain legislation. The ads CTP aired would meet the definition of ECs in 

2 U.S.C. §434(f)(3)(A). CTP admits that it violated the law by failing to file the 

required disclosure report after reaching the $10,000 reporting threshold for ECs. 

(J.A. 16 ¶40.) 

 Press reports based on media analysis data suggest that CTP spent a total of 

$1,144,593 to broadcast its two ads in Ohio, Pennsylvania, Wisconsin, West 

Virginia, and North Carolina prior to the 2008 election. See FEC Exhibit (bound 

hereto behind addendum).2

 

Appellant Holly Lynn Koerber is a resident of North Carolina whose sole 

claim here is that she would like to continue to hear CTP’s speech. (J.A. 8 ¶7.) 

 

2

 Because CTP did not comply with the Act’s disclosure requirements, 

information regarding CTP’s actual spending was not available to the Commission 

during briefing before the district court. Through statistics complied by the 

Campaign Media Analysis Group, which tracks political advertising expenditures, 

and made publicly available by The New York Times, the Commission 

subsequently learned about CTP’s actual spending during the EC period. This 

Court may take judicial notice of information available on the internet and 

statistical data. See, e.g., Richlin Sec. Serv. Co. v. Chertoff, 128 S. Ct. 2007, 2011 

(2008) (noting in EAJA determination appeal that judicial notice had been taken of 

paralegal salaries in local area as reflected on internet); United States. v. Gregory, 

871 F.2d 1239, 1245 (4th Cir. 1989) (taking judicial notice of statistical data to 

prove a Title VII violation); accord Fed. R. Evid. 201, 803(6). 

11
C. Procedural History 

On October 3, 2008, CTP and Koerber filed their complaint and a motion for 

a preliminary injunction alleging that the EC disclosure provision was 

unconstitutional as applied to CTP and that the Commission’s political committee 

status enforcement policy was unconstitutional on its face and as applied to CTP. 

The district court denied their motion on October 29, 2008 (J.A. 44). 

The district court held that plaintiffs had failed to meet any of the 

requirements for preliminary injunctive relief. Assessing plaintiffs’ likelihood of 

success on the merits, the district court held that plaintiffs were not likely to prevail 

on their claim that the disclosure provisions are unconstitutional as applied to CTP. 

(J.A. 37.) The court found that the appropriate standard of review for these 

provisions is not “strict scrutiny, but ... the lesser standard of intermediate scrutiny 

applied in Buckley and McConnell.” (J.A. 33-34.) The court found that plaintiffs 

had not addressed whether there is a “‘relevant correlation’” or “‘substantial 

relation’ between the governmental interest and the information required to be 

disclosed,” “but instead argue[d] that CTP’s advertisements are not 

‘unambiguously campaign related,’” and the Court held that this argument had 

been “made and rejected by the Supreme Court in McConnell.” (J.A. 34.) The 

court found that “[p]laintiffs ha[d] presented no reason to warrant a departure from 

the reasoning and outcome in McConnell.” (J.A. 36.) Moreover, the court rejected 

12
plaintiffs’ reliance on WRTL: “The WRTL II decision makes no mention of the 

disclosure requirements upheld in McConnell and at issue before this court nor any 

other provision, the constitutionality of which is determined by the ‘relevant 

correlation’ or ‘substantial relation’ test.” (Id.) The court also found that “[t]here 

is no indication that revelation of the sponsors’ identities may result in harassment, 

threats or reprisals.” (J.A. 37.) 

Moreover, the court found that, although plaintiffs’ claim as to the 

Commission’s analysis regarding political committee status was justiciable, 

plaintiffs had failed to demonstrate a likelihood of success on the merits of the 

claim. The court noted that the Commission’s methodology is “flexible” and 

recognizes that “an organization’s ‘major purpose’ is inherently comparative and 

necessarily requires an understanding of an organization’s overall activities, as 

opposed to its stated purpose.” (J.A. 41.) The court held that in light of the 

discretion to which the Commission is entitled, the agency does not have a 

“‘statutory duty to promulgate regulations that, either by default rule or by 

specification, address every conceivable question.’” (J.A. 41-42 (quoting Shays v. 

FEC, 528 F.3d 914, 931 (D.C. Cir. 2008)).) 

Finally, the district court determined that the remaining preliminary 

injunction factors “weigh in favor of the FEC and against the issuance of a 

preliminary injunction.” (J.A. 42.) The court held that the balance of harms and 

13
the public interest weighed in favor of denying injunctive relief in “light of the 

government’s strong interests in providing the electorate with information to assist 

the voters in making informed election decisions, in deterring actual and perceived 

corruption and in enforcing the federal campaign finance laws.” (J.A. 43.) 

Plaintiffs filed their notice of appeal on October 31, 2008. (J.A. 45.) 

SUMMARY OF THE ARGUMENT 

The district court did not abuse its discretion in denying CTP’s extraordinary 

request that the Commission be preliminarily enjoined from enforcing important 

disclosure provisions that inform the public and pursuing its approach to “political 

committee” status under FECA. CTP and Koerber did not demonstrate irreparable 

harm. The challenged provisions do not limit CTP’s speech, and CTP did in fact 

broadcast advertisements criticizing then-Senator Obama — without a preliminary 

injunction. Moreover, CTP made no showing of harm, let alone irreparable harm, 

from FECA’s disclosure requirements applicable to “electioneering 

communications” or political committees. The Supreme Court has found serious 

harm from disclosure only in cases involving organizations whose members faced 

harassment, threats, or reprisals, but CTP alleged no such facts. CTP also failed to 

show irreparable harm from its alleged fears about a potential Commission 

enforcement action. 

14
 Appellants are unlikely to succeed on the merits. The Supreme Court has 

upheld the challenged disclosure provisions on their face, and the Court has 

repeatedly upheld disclosure requirements even when striking down substantive 

restrictions on the funds to be disclosed. The information to be disclosed serves 

important interests by informing the public and assisting the Commission’s 

enforcement of the law. 

The Commission’s analysis of political committee status is not final agency 

action subject to APA review, and it is not clear that appellants have presented an 

Article III case or controversy. In any event, the Commission’s analysis 

constitutionally implements the Supreme Court’s requirement that only 

organizations whose “major purpose” is federal campaign activity be regulated as 

political committees. That test is inherently comparative and requires an 

understanding of an organization’s overall activities. 

The balance of harms weighs strongly in the Commission’s favor. Enjoining 

enforcement of disclosure provisions, already upheld by the Supreme Court, in the 

pre-election season would greatly harm the public by denying it information 

Congress deems important. Conversely, CTP’s speech was not in fact chilled, and 

it failed to demonstrate any risk of reprisal from the applicable disclosure 

provisions. 

15
ARGUMENT 

I. STANDARD OF REVIEW 

This Court “review[s] the grant or denial of a preliminary injunction for 

abuse of discretion, recognizing that preliminary injunctions are extraordinary 

remedies involving the exercise of very far-reaching power to be granted only 

sparingly and in limited circumstances.” MicroStrategy Inc. v. Motorola, Inc., 245 

F.3d 335, 339 (4th Cir. 2001) (quotation marks omitted); In re Microsoft Corp. 

Antitrust Litig., 333 F.3d 517, 524 (4th Cir. 2003) (quoting MicroStrategy); see 

also Purcell v. Gonzalez, 549 U.S. 1, 5 (2006) (per curiam) (vacating circuit 

court’s reversal of denial of pre-election preliminary injunction on grounds that 

“[i]t was ... necessary, as a procedural matter, for the Court of Appeals to give 

deference to the discretion of the District Court. We find no indication that it did 

so, and we conclude this was error.”). 

The purpose of a preliminary injunction “is merely to preserve the relative 

positions of the parties until a trial on the merits can be held,” Univ. of Tex. v. 

Camenisch, 451 U.S. 390, 395 (1981), and “to maintain the status quo ante litem,” 

Blackwelder Furniture Co. of Statesville, Inc. v. Seilig Mfg. Co., Inc., 550 F.2d 

189, 195, 197 (4th Cir. 1977). In this case, the status quo before litigation was that 

Congress had enacted the relevant statutory provisions, and the Supreme Court 

facially upheld those provisions. Thus, the status quo was not a blank slate 

16
without any regulation, as CTP contends (Br. 12-13), but a state in which the 

public was entitled to receive information Congress deems important to the public 

interest. See Nat’l Ass’n of Mfrs. v. Taylor, 549 F. Supp. 2d 68, 72 (D.D.C. 2008), 

appeal pending, No. 08-5085 (D.C. Cir.) (NAM), (denying injunction against 

lobbying disclosure requirements, explaining that “an injunction ‘grants judicial 

intervention ... [and] alter[s] the legal status quo’”) (quoting Turner Broad. Sys., 

Inc. v. FCC, 507 U.S. 1301, 1302 (1993) (Rehnquist, C.J., in chambers) (quoting 

Ohio Citizens for Responsible Energy, Inc. v. NRC, 479 U.S. 1312, 1313 (1986)

(Scalia, J., in chambers))).3

The Court assesses the grant or denial of a preliminary injunction under four 

factors: “(1) the likelihood of irreparable harm to the plaintiff if the preliminary 

injunction is denied; (2) the likelihood of harm to the defendant if the requested 

relief is granted; (3) the likelihood that the plaintiff will succeed on the merits; and 

(4) the public interest.” U.S. Dep’t of Labor v. Wolf Run Mining Co., Inc., 452 

F.3d 275, 280 (4th Cir. 2006) (citing Blackwelder, 550 F.2d at 193-94); see also

United States v. M/V Sanctuary, 540 F.3d 295, 302 (4th Cir. 2008). Plaintiffs bear 

the burden of proving that each factor supports the granting of such relief. See

Direx Israel, Ltd. v. Breakthrough Med. Corp., 952 F.2d 802, 812 (4th Cir. 1991). 

 

3

 In this sense, CTP’s preliminary injunction request could be viewed as a 

“mandatory” one, as it would alter the legal status quo. As CTP notes (Br. 12 n.9), 

the burden of proof for a mandatory injunction is significantly higher than the 

already-demanding burden required to justify a “prohibitory” injunction. 

17
In general, in applying the factors, “the court must first determine whether the 

plaintiff has made a strong showing of irreparable harm if the injunction is denied; 

if such a showing is made, the court must then balance the likelihood of harm to 

the plaintiff against the likelihood of harm to the defendant.” Scotts Co. v. United 

Indus. Corp., 315 F.3d 264, 271 (4th Cir. 2002) (citations omitted).4

 

In evaluating the preliminary injunction factors, this Circuit has held that 

when a claim of irreparable harm “is inseparably linked to [a] claim of a violation 

of ... First Amendment rights,” the determination of irreparable harm requires 

analysis of plaintiff’s likelihood of success on the merits. Newsom v. Albemarle 

County Sch. Bd., 354 F.3d 249, 254-55 (4th Cir. 2003). Because CTP’s claim of 

irreparable harm is so weak, and not inseparably linked to its alleged violation of 

First Amendment rights, we address the irreparable harm factor first. 

II. APPELLANTS CANNOT DEMONSTRATE IRREPARABLE HARM 

Appellants’ failure to demonstrate irreparable harm is dispositive because 

“[t]he basis of injunctive relief in the federal courts has always been irreparable 

harm.” Sampson v. Murray, 415 U.S. 61, 88 (1974) (citation omitted). The 

provisions appellants challenge do not limit their speech or spending on speech. 

 

4

 CTP erroneously argues (Br. 13-14) that the government bears the burden of 

proof at the preliminary injunction stage. In Blackwelder, this Circuit framed the 

key issues in terms of petitioner’s burden, asking: “(1) Has the petitioner made a 

strong showing that it is likely to prevail upon the merits? (2) Has the petitioner 

shown that without such relief it will suffer irreparable injury?” 550 F.2d at 193 

(citation omitted).

18
When it sought a preliminary injunction, CTP was speaking — and Koerber was 

listening — without any court intervention or action by the Commission. Thus, 

appellants’ request (Br. 11) that the Court “clarify” new standards for preliminary 

injunctions because their “freedom of speech” (Br. 12) is at issue is both illogical 

and unnecessary. This case simply involves no limit on CTP’s freedom to speak; 

rather, the challenged provisions further First Amendment values by providing 

more information to the public. 

A. CTP’s Speech Is Not Restricted 

 CTP did not allege that its speech has been or would be restricted. To the 

contrary, when it sought a preliminary injunction, CTP alleged that it “is 

broadcasting” one of its ads and “intends” to broadcast another. (J.A. 13 ¶31.) 

Publicly available information indicates that CTP spent $1,145,000 running its two 

ads prior to the 2008 election. See supra p.11; FEC Exhibit. Holly Lynn Koerber 

also cannot demonstrate any harm, let alone irreparable harm, since she was able to 

hear CTP’s ads when they were broadcast, and the ads remain available for the 

public to view at any time on the internet, through YouTube. See id.5

 There are three independent legal reasons why CTP’s speech is not 

restricted. First, the Commission agrees that CTP’s ads are neither express 

 

5

 Plaintiff Koerber states only a derivative and hypothetical fear that, as a 

listener, she may not continue to hear speech she has already heard if CTP is 

“silenced” (Br. 2), a claim that CTP itself does not even make. 

19
advocacy nor “the functional equivalent of express advocacy,” WRTL, 127 S. Ct. at 

2667, so CTP can use its corporate funds to pay for them. In particular, CTP’s ads 

fall within the safe harbor of the Commission’s regulation implementing WRTL, 

11 C.F.R. §114.15(b). (See J.A. 17 ¶45 (appellants’ allegation that CTP’s ads fall 

within 11 C.F.R. §114.15).) The ads do not mention then-Senator Obama’s 

candidacy or political party, they focus on a public policy issue, and their call to 

action concerns legislation. The ads can reasonably be interpreted as something 

other than an appeal to vote against Senator Obama. Thus, under WRTL and the 

Commission’s regulation implementing that decision, CTP can pay for these 

independent ads without restriction. 

 Second, CTP claims status as an MCFL corporation (J.A. 12 ¶¶26-27), 

which, if correct, would permit CTP to use its corporate funds to finance even ads 

that contain express advocacy or the functional equivalent of express advocacy. 

See supra p.8. 

 Third, even if CTP were deemed to be a political committee, that status 

would not require CTP to abide by any spending limits or restrictions. Political 

committees may finance unlimited independent campaign advocacy, including 

express advocacy and electioneering communications. See FEC v. Nat’l Conservative Political Action Comm., 470 U.S. 480 (1985); 11 C.F.R. §114.12 (treating 

an incorporated political committee as a political committee rather than a 

20
corporation). Moreover, as we demonstrate infra pp. 49-50, CTP has supplied no 

evidence to support its fear (see J.A. 16-17 ¶42) that it might be considered a 

political committee. 

B. CTP Alleges No Irreparable Harm From Disclosure Or 

Potential Status As A Political Committee 

 CTP makes no showing that it would suffer any harm — let alone 

irreparable harm — by abiding by FECA’s disclosure requirements.6

 The 

Supreme Court has found that serious harm from disclosure has been demonstrated

only in cases involving organizations whose members faced danger or repris

NAACP v. Alabama, 357 U.S. 449, 462 (1958), the association “made an 

uncontroverted showing that on past occasions revelation of the identity of its 

rank-and-file members has exposed these members to economic reprisal, loss of 

employment, threat of physical coercion, and other manifestations of public 

hostility.” Similarly, in Brown v. Socialist Workers ’74 Campaign Comm., 459 

U.S. 87 (1982), the Court invalidated disclosure requirements as applied to the 

Socialist Workers’ Party based on “substantial evidence of past and present 

hostility from private persons and Government officials,” id. at 102, including 

als. In 

 

6

 The EC disclosure provision is carefully tailored and requires only 

disclosure of ECs that are in excess of $10,000 in a calendar year and donors who 

give more than $1,000 in a calendar year. 2 U.S.C. §§ 434(f)(1)-(2). CTP has not 

alleged how many, if any, of its donors gave in excess of $1,000. 

21
record proof of “threatening phone calls and hate mail, the burning of ... literature, 

the destruction of ... members’ property,” and of “members [who] were fired 

because of their party membership.” Id. at 99; see Buckley, 424 U.S. at 69 (noting 

that NAACP members faced “‘economic reprisal, loss of employment, threat of 

physical coercion, and other manifestations of public hostility’”); McConnell, 540 

U.S. at 198-99 (noting that Socialist Workers had found “reasonable probability” 

of “threats, harassment, and reprisals”); see also NAM, 549 F. Supp. 2d at 75-76 

(trade association suffers no irreparable harm in disclosing membership list under 

lobbying disclosure provisions). 

 Here, CTP has not alleged any such harm, as the lower court correctly 

found: “There is no indication that revelation of the sponsors’ identities may result 

in harassment, threats or reprisals.” (J.A. 37). Appellants in Buckley, who were 

denied an exemption from the disclosure requirements, showed more harm than 

CTP has here. “At best, [Buckley appellants] offer[ed] the testimony ... that one or 

two persons refused to make contributions because of the possibility of 

disclosure.” 424 U.S. at 71-72. But CTP has not provided any evidence that its 

members have been subjected to reprisals or reasonably fear that they will be. 

Moreover, any alleged administrative burden imposed by the disclosure 

requirements could not constitute irreparable harm. “Mere injuries, however 

substantial, in terms of money, time and energy necessarily expended in the 

22
absence of a stay are not enough. The possibility that adequate compensatory or 

other corrective relief will be available at a later date, in the ordinary course of 

litigation weighs heavily against a claim of irreparable harm.” Chaplaincy of Full 

Gospel Churches v. England, 454 F.3d 290, 297-98 (D.C. Cir. 2006). 

For the same reasons, CTP has made no showing that it would suffer 

irreparable harm if it were to comply with the disclosure rules applicable to 

political committees. Moreover, CTP has not shown that its fundraising would be 

irreparably harmed if it abided by the $5,000 limit per contributor on contributions 

to political committees. Indeed, it has alleged nothing specific about its actual or 

potential donors, or whether it expects to receive more than $5,000 from any one 

person. 

Thus, CTP makes only a conclusory assertion of harm, but a mere allegation 

of harm under the First Amendment does not demonstrate irreparable harm 

sufficient to justify the extraordinary remedy of a preliminary injunction. See

Smith v. Frye, 488 F.3d 263, 271 (4th Cir.), cert. denied, 128 S. Ct. 653 (2007) 

(holding that harm allegation does not “necessarily, by itself, state a First 

Amendment claim under Elrod [v. Burns, 427 U.S. 347 (1976) (plurality)]”); see 

also Christian Knights of the Ku Klux Klan Invisible Empire, Inc. v. District of 

23
Columbia, 919 F.2d 148, 149-50 (D.C. Cir. 1990) (holding Elrod applicable only 

when “First Amendment rights were totally denied”).7

C. CTP Cannot Demonstrate Irreparable Harm Based On Its 

Alleged Fears Of A Commission Enforcement Action 

 CTP provides neither evidence of an imminent investigation that would 

cause it irreparable harm, nor legal support for the proposition that any such 

investigation or potential penalties could occur so imminently or without due 

process as to require a preliminary injunction. 

 Congress established the Commission’s balanced enforcement mechanisms 

decades ago, providing specific “procedures purposely designed to ensure fairness 

not only to complainants but also to respondents.” Perot v. FEC, 97 F.3d 553, 559 

(D.C. Cir. 1996). The Commission investigates potential violations of the Act only 

if at least four of its members have voted to find “reason to believe” that the law 

has been violated. 2 U.S.C. §437g(a)(2). CTP does not allege that a complaint has 

been filed against it or that the Commission has notified it that it has found “reason 

 

7

 CTP relies (Br. 47, 55-56) on Giovani Carandola, Ltd. v. Bason, 303 F.3d 

507 (4th Cir. 2002), to argue that this Court can find an “automatic” irreparable 

injury if it finds a likelihood of success on the merits for CTP. However, Bason 

involved a facial challenge to an overbroad regulation that prohibited “a great deal 

of expression” protected by the First Amendment. Id. at 516. Because the current 

case is primarily an as-applied challenge to a narrowly tailored disclosure statute 

that has been upheld facially by the Supreme Court, the Bason analysis of the 

Blackwelder factors is not analogous. Moreover, because CTP’s speech is not 

limited and it has alleged no irreparable harm from disclosure, its alleged harms 

are not inseparably linked to its First Amendment claims. 

24
to believe.” Even if those events had occurred, penalties could not be imposed 

imminently against CTP because the Commission has no authority to impose 

penalties unilaterally; the Commission’s authority is limited to encouraging 

voluntary compliance with the law and negotiating a voluntary penalty, if 

appropriate. 2 U.S.C. §437g(a)(4),(5). Only if those efforts are unsuccessful, and 

after at least four Commissioners vote to find “probable cause” that a violation 

occurred, can the Commission vote to authorize the filing of a de novo action in 

federal court to seek judicial imposition of a civil penalty. 2 U.S.C. §437g(a)(6). 

Moreover, CTP would have multiple opportunities to present its defenses before 

such penalties could be imposed — before both the Commission and the courts — 

and it does not need a preliminary injunction to preserve its ability to present those 

defenses, if and when any enforcement action might occur. See, e.g., 2 U.S.C. 

§437g(a)(1),(3). 

CTP’s arguments prove too much: If every potential investigation could be 

enjoined because it might create an undue burden, the Commission’s enforcement 

powers would be a nullity. See FTC v. Standard Oil Co. of Cal., 449 U.S. 232, 244 

(1980) (expense and annoyance of agency proceedings do not constitute 

irreparable injury, but are part of social burden of living under government). If and 

when an FEC investigation begins, and if and when CTP believes the investigation 

is unduly burdensome, it can seek a remedy from the courts, which are well25
equipped to resolve specific subpoena and discovery disputes. CTP is essentially 

asking this Court to assume that a series of hypothetical events will take place, 

including future courts’ inability to protect appellants from an improper 

investigation. That kind of speculation falls far short of meeting CTP’s burden to 

show imminent, irreparable harm. 

 Appellants rely (Br. 47-55) on several irrelevant cases and FEC 

investigations. First, appellants rely (Br. 49) on North Carolina Right to Life, Inc. 

v. Bartlett, 168 F.3d 705, 710-11 (4th Cir. 1999) (NCRL), to argue that the “threat 

of prosecution is inherent in the statute.” In NCRL, however, the relevant issue 

was standing, not the showing of irreparable harm necessary to obtain a 

preliminary injunction. This Court found a plaintiff has “standing to mount a preenforcement challenge if the statute ‘facially restrict[s] expressive activity by the 

class to which the plaintiff belongs.’” Id. at 710 (citation omitted) (emphasis 

added). Moreover, in contrast to the statute in NCRL, the EC disclosure provisions 

and political committee enforcement analysis challenged here do not restrict 

speech, and the disclosure provisions have been upheld facially by the Supreme 

Court. See infra pp. 29-32. 

Second, appellants’ reliance (Br. 48 n.31) on FEC v. Machinists NonPartisan Political League, 655 F.2d 380 (D.C. Cir. 1981), is misplaced, because 

that case did not involve an attempt to enjoin an investigation that had not yet 

26
begun. Rather, the case arose when the Commission brought suit in federal court 

after the defendant had refused to comply with the Commission’s administrative 

subpoena. At that appropriate juncture, the court ruled that the Commission lacked 

authority over “draft candidate” groups. The court did not rule that the subpoena 

itself was overbroad or asked for inappropriate materials. Indeed, the court 

affirmed that “[i]f jurisdiction for a full investigation appears to exist, a broader 

subpoena seeking evidence of a violation may then be enforceable.” 655 F.2d at 

397. 

Third, CTP’s assertions (Br. 31-33) about the relevance of the investigation 

and discovery in FEC v. Christian Coalition, 52 F. Supp. 2d 45 (D.D.C. 1999), 

ignore the vast differences in complexity and scale between Christian Coalition

and the present case. That case involved a series of allegations of coordination 

between The Christian Coalition and a national political committee in the 

distribution of voter guides in seven states in the 1990 election, as well as alleged 

coordination with federal candidates in five different races (one presidential, two 

senatorial, and two congressional) in the 1990, 1992, and 1994 election cycles. 

Investigating those allegations involved an extraordinary number of factual 

scenarios and inherently fact-intensive coordination determinations. Here, in 

contrast, CTP’s alleged activity apparently consists of broadcasting some ads and 

failing to disclose its disbursements and its donors who gave more than $1,000. 

27
See 11 C.F.R. §§104.20(c); 114.15(f). Moreover, the volume of discovery in 

Christian Coalition was increased because the defendant failed to produce timely 

information, at times not until after relevant witnesses had already been deposed 

once. “The Coalition’s repeated inability to comply with reasonable discovery 

requests led Magistrate Judge Alan Kay, who oversaw discovery, to impose 

sanctions.” Christian Coalition, 52 F.Supp.2d at 51.8

 

In sum, CTP’s alleged harms are too remote, insubstantial, and speculative 

to warrant a preliminary injunction, and it has failed to make even a rudimentary 

showing of irreparable harm, let alone the “clear” and “strong” showing required in 

this Circuit. See Scotts, 315 F.3d at 271; Dan River, Inc. v. Icahn, 701 F.2d 278, 

284 (4th Cir. 1983). 

 

8

 Appellants also rely (Br. 50) on AFL-CIO v. FEC, 333 F.3d 168 (D.C. Cir. 

2003). The issue in that case, however, was whether the Commission could 

publicly disclose certain documents after the conclusion of its investigation, not the 

appropriate scope of the underlying investigation. Appellants also wrongly suggest 

(Br. 16) that the Commission engaged in what they call “scorched-earth litigation 

tactics,” in FEC v. Christian Action Network, 110 F.3d 1049 (4th Cir. 1997). The 

decision did not suggest that the Commission did anything inappropriate during 

discovery or the administrative investigation; rather, the Court stated, “The 

question for us is only whether the FEC was ‘substantially jusitifed’” in its 

interpretation of the scope of regulable activity under the “express advocacy” 

standard. Id. at 1061. 

28
III. APPELLANTS ARE NOT LIKELY TO SUCCEED ON THE MERITS 

A. Appellants Are Not Likely To Succeed On The Merits Of Their 

Challenge To The Disclosure Requirements For Electioneering 

Communications 

 Appellants bring a broad constitutional challenge to the statutory EC 

disclosure requirements as applied to all WRTL ads, i.e., ECs that can be financed 

with corporate funds. This challenge is not likely to succeed. 

1. The Supreme Court Has Upheld The EC Disclosure 

Requirements On Their Face 

 In McConnell, the Supreme Court upheld the disclosure provisions at issue 

here on their face. 540 U.S. at 196-99, 203-09, 230-31. The Court held that the 

electioneering communication reporting requirements are consistent with the First 

Amendment because they do not suppress speech, see id. at 197-99, 201 

(“[FECA’s] disclosure requirements are constitutional because they ‘d[o] not 

prevent anyone from speaking.’”) (quoting McConnell v. FEC, 251 F. Supp. 2d 

176, 241 (D.D.C. 2003)), and because the “important state interests” in “providing 

the electorate with information, deterring actual corruption and avoiding any 

appearance thereof, and gathering the data necessary to enforce more substantive 

electioneering restrictions ... amply support[ ] application of [the] disclosure 

requirements to the entire range of electioneering communications,” 540 U.S. at 

196 (internal quotation marks omitted); see also id. at 321 (Kennedy, J., 

concurring, joined by Rehnquist, C.J., and Scalia, J.) (finding reporting 

29
requirements constitutional because they “substantially relate” to the informational 

interest cited by the majority opinion). The Court explained that disclosure 

furthers the “First Amendment interests of individual citizens seeking to make 

informed choices in the political marketplace.” Id. at 197 (quoting McConnell, 251 

F. Supp. 2d at 237). 

 Consistent with Buckley and earlier cases, McConnell acknowledged that 

there may be limited instances in which the First Amendment burdens of 

disclosure might outweigh these government interests as to particular 

organizations: when an organization could present “specific evidence” showing a 

“reasonable probability” that compelled disclosure of its funders would subject 

them to “threats, harassment, or reprisals.” McConnell, 540 U.S. at 197-99. 

Regarding the disclaimer requirements, Chief Justice Rehnquist, writing for eight 

Justices, upheld the provisions as bearing “a sufficient relationship to the important 

governmental interest of ‘shed[ding] the light of publicity’ on campaign 

financing.” Id. at 231 (quoting Buckley, 424 U.S. at 81). Indeed, as appellants’ 

counsel himself noted in rulemaking comments on behalf of other parties: 

There was broad support on the [McConnell] Court for requiring 

disclosure of electioneering communication expenditures, while 

support for the electioneering communication ban was narrow. Cf. 

[124 S. Ct.] at 689-94 (majority) with id. at 762-69 (Kennedy, J., joined 

by Rehnquist, C.J., and Scalia J.). Although there is little explanation 

of the point by Justices who objected to the ban but not the disclosure, 

their support doubtless rested on the facts that disclosure is a 

significantly lighter burden than a ban, that no disclosure is required 

30
until $10,000 has been expended, and that only donors of $1,000 or 

more need to be disclosed (as compared to the $200 level for 

independent expenditures). Id. at 690.... And the Court left open the 

possibility of as-applied challenges to the donor disclosure requirement 

for organizations that can demonstrate a “reasonable probability” of 

“economic reprisals or physical threats” as a result of compelled 

disclosure. Id. at 692.9

Nothing in WRTL casts doubt on the Supreme Court’s prior holdings 

regarding the requisite showing for an as-applied challenge to disclosure 

requirements. The subject of WRTL was not disclosure but a ban on corporatetreasury financing for certain advertisements, and the Court applied strict scrutiny. 

The Court did not suggest that the relevant advertisements are constitutionally 

exempt from all regulation. Indeed, the WRTL plaintiff explicitly disavowed any 

challenge to the disclosure provisions at the outset of the litigation. Verified 

Compl. for Declaratory and Injunctive Relief ¶36, Wis. Right to Life, Inc. v. FEC, 

Civ. No. 04-1260 (D.D.C. July 28, 2004) (“WRTL does not challenge the reporting 

and disclaimer requirements for electioneering communications, only the 

prohibition on using its corporate funds for its grass-roots lobbying 

advertisements.”).10 It defies logic and the law to interpret the decision in WRTL

 

9

 Comments on FEC Notice of Proposed Rulemaking 2004-6 (Political 

Committee Status), available at 

http://www.fec.gov/pdf/nprm/political_comm_status/comm3/52.pdf. 

10 WRTL also informed the Supreme Court that “[b]ecause WRTL does not 

challenge the disclaimer and disclosure requirements, there will be no ads done 

under misleading names. There will continue to be full disclosure of all 

electioneering communications, both as to disclaimers and public reports. The 

31
as striking down an act of Congress and significantly limiting McConnell’s 

holdings on disclosure — sub silentio.

11 Therefore, the lower court correctly 

rejected appellants’ argument that WRTL had overturned McConnell. (J.A. 36.) 

 

Indeed, a unanimous three-judge district court has recently rejected 

appellants’ misinterpretation of WRTL. In Citizens United, the court denied the 

plaintiff’s request to enjoin enforcement of the EC disclosure provisions and 

rejected the argument that WRTL exempts all WRTL ads from disclosure, stating: 

“We do not believe WRTL went so far. The only issue in the case was whether 

speech that did not constitute the functional equivalent of express advocacy could 

be banned during the relevant pre-election period.” 530 F. Supp. 2d at 281.12 

Even the decision in N.C. Right to Life, Inc. v. Leake, 525 F.3d 274 (4th Cir. 2008) 

(Leake II), upon which appellants rely, noted that “no circuit court should engage 

whole system will be transparent. With all this information, it will then be up to 

the people to decide how to respond to the call for grassroots lobbying on a 

particular governmental issue.” Br. for Appellee at 49, WRTL, S. Ct. Nos. 06-969, 

06-970 (emphasis added). 

11 See, e.g., Tenn. Student Assistance Corp. v. Hood, 541 U.S. 440, 449 n.4 

(2004) (Court is unlikely to overrule its own recent decisions sub silentio); 

Agostini v. Felton, 521 U.S. 203, 237 (1997) (courts should not conclude that 

“more recent [Supreme Court] cases have, by implication, overruled an earlier 

precedent”). 

12 The same argument was also made and rejected in Ohio Right to Life Soc., 

Inc. v. Ohio Elections Comm’n (ORTL), Civ. No. 08-492, 2008 WL 4186312, at *7 

(S.D. Ohio Sept. 5, 2008) (“The WRTL Court made clear that the Court was only 

considering the constitutionality of the BCRA’s federal electioneering 

[communication] funding prohibition ... [T]he WRTL Court did not even mention 

disclosure requirements, much less consider their constitutionality.”). 

32
in cloudy crystal ball-gazing” about the “effect WRTL may or may not have had 

upon McConnell,” id. at 285. Although Leake II struck down a state law provision 

defining certain kinds of campaign communications, this Court distinguished that 

statute from BCRA’s definition of electioneering communication: “[N]othing in 

BCRA even approached the First Amendment infirmities present here: that is to 

say the complete lack of notice as to what speech is regulable, and the unguided 

discretion given to the State to decide when it will move against political speech 

and when it will not.” Id. As explained supra pp. 4-6, the definition of 

electioneering communication is a bright-line test that presents no comparable 

problems of vagueness. See McConnell, 540 U.S. at 194 (“[BCRA’s] definition of 

‘electioneering communication’ raises none of the vagueness concerns that drove 

our analysis in Buckley.”). 

2. Disclosure Requirements Are Subject To 

Intermediate Scrutiny 

Even without McConnell’s facial upholding of the disclosure requirements, 

appellants would still be unlikely to prevail on the merits of their claims under the 

appropriate level of scrutiny. First Amendment challenges to disclosure statutes 

are analyzed under an “exacting scrutiny” standard, which requires that the 

compelled disclosure bear a “substantial relation” to an important government 

interest. Buckley, 424 U.S. at 64, 66, 75; see also McConnell, 540 U.S. at 196, 

33
231; Davis v. FEC, 128 S. Ct. at 2775 (“[T]here must be ‘a relevant correlation’ or 

‘substantial relationship’ between governmental interest and the information 

required to be disclosed, and the government interest ‘must survive exacting 

scrutiny.’”); Buckley v. Am. Constitutional Law Found., Inc., 525 U.S. 182, 

202 (1999) (“In [Buckley v. Valeo], we stated that ‘exacting scrutiny’ is necessary 

when compelled disclosure of campaign-related payments is at issue [and] upheld, 

as substantially related to important governmental interests, the recordkeeping, 

reporting, and disclosure provisions of [FECA] ....”).13 The Court in Buckley 

expressly distinguished the strict scrutiny applicable to statutes (such as 

expenditure limits) that impose “limitations on core First Amendment rights of 

political expression,” 424 U.S. at 44-45, from the lesser scrutiny applicable to 

encroachments on the “privacy of association” by disclosure requirements, id. 

at 64. McConnell confirmed that it is “simply untrue in the campaign finance 

context that all burdens on speech necessitate strict scrutiny review.” 540 U.S. 

at 140 n.42 (internal quotation marks omitted).

 

13 See Alaska Right To Life Comm. v. Miles, 441 F.3d 773, 788 (9th Cir. 2006) 

(finding McConnell did not apply strict scrutiny and upholding disclosure 

requirements as supported by “important state interests”); Center for Individual 

Freedom v. Carmouche, 449 F.3d 655, 663 (5th Cir. 2006), cert. denied, 127 S. Ct. 

938 (2007); Jones v. Unknown Agents of FEC, 613 F.2d 864, 875 (D.C. Cir. 1979) 

(citing Buckley); Jackson v. Leake, 476 F. Supp. 2d 515, 525 (E.D.N.C. 2006) 

(citing Buckley and McConnell); ORTL, 2008 WL 4186312, at *8 (“With respect to 

campaign finance disclosure provisions, the Supreme Court has consistently 

applied an intermediate level of scrutiny.”). 

34
Twenty-five years ago, this Court held that the Supreme Court’s decisions in 

Buckley, NAACP, and other cases made clear that disclosure laws must have a 

“‘relevant correlation’ or ‘substantial relation’ between the governmental interest 

and the information sought through disclosure.” Master Printers of Am. v. 

Donovan, 751 F.2d 700, 704 (4th Cir. 1984) (quoting Buckley, 424 U.S. at 64). 

Recently, this Court rejected the argument that the scrutiny applicable to such 

disclosure requirements is equivalent to strict scrutiny, explaining that “having a 

substantial relation to an important state interest is all that is required by Buckley

and McConnell....” N.C. Right to Life Comm. Fund for Indep. Political 

Expenditures v. Leake, 524 F.3d 427, 440 (4th Cir. 2008) (Leake I) (footnote 

omitted). There, in upholding the constitutionality of state judicial election 

disclosure laws, the Court confirmed its application of the Buckley and McConnell 

test for disclosure laws. 

Reporting and disclosure requirements in the campaign finance 

realm “must survive exacting scrutiny.” Buckley, 424 U.S. at 64. 

The plaintiffs argue that “exacting scrutiny” in this context is 

equivalent to strict scrutiny (requiring narrow tailoring to a 

compelling state interest), but this argument is inconsistent with 

Buckley and subsequent cases. 

Leake I, 524 F.3d at 439.14 Thus, as the district court below correctly held, “the 

 

14 Appellants’ reliance on Leake II is misplaced. There, this Court considered 

limits on independent expenditures and contributions for political committees, not 

reporting requirements standing alone. In contrast, Leake I specifically and 

thoroughly examined disclosure requirements for campaign spending. 

35
provisions involved here have only a marginal impact on the ability of contributors 

to engage in effective political speech. As such, they are not subject to strict 

scrutiny, but to the lesser standard of intermediate scrutiny applied in Buckley and 

McConnell.” (J.A. 33-34.) 

3. Disclosure Requirements Have Been Upheld As To 

Spending On “Issue” Speech That Cannot Constitutionally 

Be Limited 

 Although the government need not demonstrate that a disclosure provision is 

the least restrictive means of furthering a government interest, the Supreme Court 

has found it significant in the electoral context that such provisions are 

considerably less restrictive than contribution or expenditure restrictions. See 

Buckley, 424 U.S. at 81-82 (“[T]he disclosure requirement is ... [a] minimally 

restrictive method of furthering First Amendment values by opening the basic 

processes of our federal election system to public view.”). 

Thus, the Court has often upheld disclosure requirements even when striking 

down substantive restrictions on the funds to be disclosed. See, e.g., MCFL, 479 

U.S. at 262 (striking down independent expenditure restrictions on certain nonprofit organizations in part because “reporting obligations provide precisely the 

information necessary to monitor MCFL’s independent spending activity”); 

Citizens Against Rent Control v. Berkeley, 454 U.S. 290, 298 (1981) (striking 

down contribution limits governing ballot initiative groups because “there is no 

36
risk that the Berkeley voters will be in doubt as to the identity of those whose 

money supports or opposes a given ballot measure since contributors must make 

their identities known under ... the ordinance, which requires publication of lists of 

contributors in advance of the voting”); First Nat’l Bank of Boston v. Bellotti, 435 

U.S. 765, 791-92 & n.32 (1978) (striking down prohibition on corporate 

expenditures to support or oppose ballot initiatives but noting that “[i]dentification 

of the source of advertising may be required as a means of disclosure, so that the 

people will be able to evaluate the arguments to which they are being subjected”). 

The three-judge court in Citizens United recently emphasized that “the Supreme 

Court has written approvingly of disclosure provisions triggered by political 

speech even though the speech itself was constitutionally protected under the First 

Amendment.” 530 F. Supp. 2d at 281 (citing MCFL, Citizens Against Rent 

Control, and Bellotti; footnote omitted). 

Despite this precedent, appellants argue that the First Amendment requires 

that “the government always has the threshold burden of proving that the 

unambiguously-campaign-related principle is met (as implemented by the 

appropriate test) before meeting the burden imposed by the required level of 

scrutiny.” (Br. 13 (emphasis in original).) Appellants, however, have created a 

novel threshold burden that lacks precedential foundation. Contrary to appellants’ 

assertions, Buckley did not enshrine the phrase “unambiguously campaign related” 

37
as a stand-alone constitutional test that all disclosure statutes must pass. Instead, 

this phrase was merely part of the Court’s explanation that its statutory 

construction of “expenditure” in one part of the Act’s disclosure provisions would 

resolve “serious problems of vagueness,” Buckley, 424 U.S. at 76 — a problem 

that the Court has explicitly noted does not arise in the definition of “electioneering 

communication.” McConnell, 540 U.S. at 194. 

As the lower court correctly stated (J.A. 34) when it rejected CTP’s 

“unambiguously campaign related” assertion, “[t]his argument is, for all intents 

and purposes, the same argument made and rejected by the Supreme Court in 

McConnell.” The Court in McConnell specifically refuted the argument that 

“Congress cannot constitutionally require disclosure of ... ‘electioneering 

communications’ without making an exception for those ‘communications’ that do 

not meet Buckley’s definition of express advocacy.” McConnell, 540 U.S. at 190. 

The Court explained that this argument “misapprehends” the Court’s “prior 

decisions, for the express advocacy restriction was an endpoint of statutory 

interpretation, not a first principle of constitutional law.” Id. The same 

misapprehension is fatal to appellants’ “unambiguously campaign related” theory, 

because it ignores the fact that the Court’s use of that phrase in Buckley was part of 

the same statutory construction — not a first principle of constitutional law — 

needed to address the vagueness in the phrase “for the purpose of ... influencing” 

38
the nomination or election of candidates. Buckley, 424 U.S. at 77; see generally id. 

at 76-82.15

Finally, appellants’ interpretation of Buckley is further belied by the 

decisions since Buckley that have repeatedly employed intermediate scrutiny — 

with no application of any “unambiguously campaign related” requirement — in 

assessing disclosure statutes governing “issue” speech. See Buckley v. Am. 

Constitutional Law Found., 525 U.S. at 204 (applying exacting scrutiny and 

upholding requirement to disclose donations made to organizations to pay ballotinitiative petition circulators); Citizens Against Rent Control, 454 U.S. at 298-99 

(ballot initiatives); Bellotti, 435 U.S. at 791-92 n.32 (same). This is particularly 

noteworthy because in the context of ballot-issue campaigns, unrestricted 

campaign spending creates little risk of quid pro quo corruption because the 

elections do not involve candidates who may become beholden to their financial 

supporters. See Bellotti, 435 U.S. at 790 (distinguishing referendum from 

candidate campaign). 

4. The Disclosure Provisions Serve Important Government 

Interests By Providing Information To The Public 

This Court and the Supreme Court have found that disclosure requirements 

as to campaign contributions, express advocacy communications, electioneering 

 

15 Again, appellants’ reliance on Leake II is misplaced because that opinion 

focused on limits on independent expenditures and contributions for political 

committees, not reporting requirements standing alone. 

39
communications, and lobbying and other issue-oriented political communications 

serve important public interests. See, e.g., Buckley, 424 U.S. at 66-68, 81-82; 

McConnell, 540 U.S. at 196; United States v. Harriss, 347 U.S. 612, 625 (1954) 

(upholding lobbying disclosure); Leake I, 524 F.3d at 440 (upholding disclosure 

requirements for a state public financing system, even as to non-participating 

candidates, due to the “important state interests,” including “providing the 

electorate with information”) (quoting McConnell, 540 U.S. at 196). 

In upholding the disclosure requirements at issue here against a facial 

challenge, the Supreme Court relied upon the important interest in securing the 

public’s access to information about the choice of their elected leaders. 

“[I]ndividual citizens seeking to make informed choices in the political 

marketplace” have “First Amendment interests” in learning how electoral 

advocacy is funded. McConnell, 540 U.S. at 197 (citation omitted); accord

Buckley, 424 U.S. at 82 (disclosure “further[s] First Amendment values by opening 

the basic processes of our federal election system to public view” (footnote 

omitted)). 

Similarly, more than fifty years ago, the Supreme Court upheld mandatory 

disclosure of lobbying expenditures to further the government interest in informing 

the public of who is attempting to sway the resolution of public issues and how 

they are attempting to do so: 

40
Congress has not sought to prohibit [lobbying]. It has merely 

provided for a modicum of information from those who for hire 

attempt to influence legislation or who collect or spend funds for that 

purpose. It wants only to know who is being hired, who is putting up 

the money, and how much. 

 Harriss, 347 U.S. at 625. In the decades since Harriss, courts have almost 

unanimously upheld lobbying disclosure. See, e.g., Fla. League of Prof’l 

Lobbyists, Inc. v. Meggs, 87 F.3d 457, 460 (11th Cir. 1996) (upholding 

requirement that lobbyists disclose the name of each client who provided money 

for each of the lobbyist’s expenditures); Minn. State Ethical Practices Bd. v. NRA, 

761 F.2d 509, 512 (8th Cir. 1985) (“[U]nder Buckley, the state of Minnesota’s 

interest in disclosure outweighs any infringement of ... first amendment rights.”);

NAM, 549 F. Supp. 2d at 73-75.16 Lobbying, like issue advocacy, is not directed at 

candidate campaigns. It is issue-oriented political activity protected by the First 

Amendment, and it therefore shares most of the key characteristics of the 

advertising at issue in WRTL. See WRTL, 127 S. Ct. at 2667 (“The ads focus on a 

 

16 Likewise, this Court has upheld required disclosure of the identity of an 

individual hired by an employer to persuade employees on union-related matters. 

Master Printers, 751 F.2d at 713. The Labor-Management Reporting and 

Disclosure Act (LMRDA) required disclosure of the individual’s name, address, all 

receipts and disbursements, a detailed statement of the terms and conditions of 

their employment agreement, and annual reports of all receipts and disbursements. 

Id. at 702 n.1. “Just as the Federal Election Campaign Act reviewed in Buckley

and the Lobbying Act upheld in Harriss provided such needed sunlight in two 

areas prone to corrupt activity, so the disclosure provisions of the LMRDA expose 

‘persuader activity’ to the effective ‘disinfectant’ of public scrutiny.” Id. at 713 

(citations omitted).

41
legislative issue [and] take a position on the issue.... The ads do not mention an 

election, candidacy, political party, or challenger....”). This overwhelming 

precedent belies appellants’ contention (Br. 37) that the public’s informational 

interest attaches only to campaign speech, and not “independent, issue-advocacy.” 

 In any event, just because an ad is a WRTL ad does not mean it is not 

election-related. The controlling opinion in WRTL held that a corporation may use 

its general treasury funds to finance an EC unless the communication “is 

susceptible of no reasonable interpretation other than as an appeal to vote for or 

against a specific candidate.” Id. at 2667. That opinion recognized, however, that 

some electioneering communications can reasonably be construed as either

electoral appeals or as issue advocacy, and that regarding the financing restrictions, 

“the tie goes to the speaker.” Id. at 2669. The necessary consequence of that 

holding is that some ECs may be constitutionally exempt from BCRA’s corporatefinancing prohibitions, even though some reasonable observers will construe the 

advertisements as electoral advocacy. 

 CTP’s ads in this case are good examples: Although Basic Rights and 

Tragic but True (J.A. 13-14 ¶¶32-33) do not expressly mention the presidential 

election or advocate an electoral outcome, they were highly critical of Senator 

Obama and broadcast outside his home state of Illinois in the final weeks of the 

campaign. The ads are closer to the “Jane Doe” example identified in McConnell

42
— which “condemned Jane Doe’s record on a particular issue” — than the WRTL

ads, which did not expressly identify the senators’ positions on the filibuster issue. 

See WRTL, 127 S. Ct. at 2667 n.6 (citing McConnell; citation and quotation marks 

omitted). Voters who perceive a connection between ads like these and an 

upcoming election retain a significant interest in identifying the advertisements’ 

sponsor and underwriters, to assess the ads’ credibility, and the candidate’s 

reaction. The reporting provisions at issue further that interest. The disclaimer 

provisions also ensure that communications having potential electoral significance 

are not misattributed to the identified candidate or his or her opponent. Cf. 

Johanns v. Livestock Mktg. Ass’n, 544 U.S. 550, 565 (2005) (discussing, in dicta, 

potential as-applied challenge to misattributed advertising); id. at 568 (Thomas J., 

concurring). 

5. Disclosure Requirements Support The Important 

Government Interest In Law Enforcement 

Disclosure statutes serve an important government interest in enabling 

enforcement of substantive funding regulations. In the electoral context, Buckley

upheld FECA’s disclosure requirements as advancing the government’s interest in 

“gathering the data necessary to detect violations of the contribution limitations.” 

424 U.S. at 68. McConnell similarly held that mandatory disclosure was 

constitutional in light of the interest in “gathering the data necessary to enforce 

more substantive electioneering restrictions.” 540 U.S. at 196. 

43
The enforcement interest is not limited to spending by candidates or political 

committees. MCFL held that the defendant corporation must be allowed to finance 

independent expenditures with its corporate treasury funds because it presented no 

“threat at all” of corruption due to its particular lack of business activity and 

funding. 479 U.S. at 263. Nevertheless, the Court held that MCFL would have to 

report its independent expenditures so that the public would have information, the 

Commission could monitor its independent spending, and the Commission could 

review whether the corporation’s major purpose has become campaign activity: 

Even if [the contribution limit] is inapplicable, an independent 

expenditure of as little as $250 by MCFL will trigger the disclosure 

provisions [which require MCFL] to identify all contributors who 

annually provide ... funds intended to influence elections, [] to specify all 

recipients of independent spending ..., and [] to identify all persons 

making contributions ... who request that the money be used for 

independent expenditures. These reporting obligations provide precisely 

the information necessary to monitor MCFL’s independent spending 

activity and its receipt of contributions.... 

Furthermore, 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. As 

such, it would automatically be subject to the obligations and restrictions 

applicable to those groups whose primary objective is to influence 

political campaigns. In sum, there is no need for the sake of disclosure to 

treat MCFL any differently than other organizations that only 

occasionally engage in independent spending on behalf of candidates. 

Id. at 262 (internal citation omitted and emphasis added). Thus, FECA’s 

disclosure provisions remain applicable to MCFL corporations so that the 

44
government can determine if and when they cross the line from exempt to 

regulable activity. 

Analogously, even though the prohibition on corporate spending cannot 

constitutionally be applied when a corporation runs a WRTL ad, the EC disclosure 

provisions remain applicable to such ads because the government has an important 

enforcement interest in determining which ECs are exempt under WRTL. The 

Ninth Circuit recognized such an interest in Alaska Right to Life when the court 

analyzed a state disclosure statute similar to FECA’s disclosure provisions 

regarding ECs. See 441 F.3d at 788-93. The court held that the corporation could 

constitutionally be compelled to make disclosures regarding advertising that met 

the statutory definition of an EC but that consisted only of issue advocacy — i.e., a 

subset of what would now be known as WRTL ads. Id. at 791-93. This analysis 

applies with equal force to BCRA’s EC disclosure provisions: Without disclosure, 

the Commission and potential administrative complainants among the public 

would have difficulty knowing when ECs are being broadcast, and whether 

communications purporting to meet WRTL’s criteria actually do so.17 

 

17 Appellants suggest (Br. 37-38) that the enforcement interest does not apply 

because it is linked to the anti-corruption interest, but they fail to explain why there 

is no enforcement interest in determining which specific activities are regulable. 

Appellants also rely (Br. 38) on Davis, but in that case the government’s interest in 

disclosure was the administration of certain contribution limits that the Court 

struck down in their entirety. See 128 S. Ct. at 2775. That situation is not present 

in the context of BCRA’s electioneering communication funding restrictions, 

45
6. Appellants Demonstrate No Constitutional Burden Arising 

From The Disclosure Provisions 

 CTP cannot prevail in its as-applied challenge to the EC disclosure 

provisions because it presents no evidence about who its donors are or how they or 

the organization would suffer “threats, harassment, and reprisals” if CTP were to 

comply with the requirements. McConnell, 540 U.S. at 198-99 (citing Buckley, 

Socialist Workers, and NAACP); see also Buckley, 424 U.S. at 69-74, 82 n.109 

(citing NAACP).18 Buckley and McConnell, while recognizing harassment as a 

potential burden, specifically found no evidence of actual harassment in the 

FECA/BCRA context and held that such evidence would be required to mount a 

reprisal-based, as-applied First Amendment challenge to the Act’s disclosure 

provisions. Buckley, 424 U.S. at 69 (“No record of harassment on a similar scale 

was found in this case.”); McConnell, 540 U.S. at 199 (upholding lower court 

finding that “concerns” of plaintiffs regarding harassment were unsupported due to 

 

which McConnell facially upheld and which the FEC remains charged with 

enforcing. 

18 If a donor faced a real threat of reprisal, the corporation could request that 

the Commission exempt disclosure of that donor from the relevant disclosure 

requirements on constitutional grounds, as the Socialist Workers Party has done 

repeatedly and successfully. See FEC Advisory Opinions 1990-13 (granting party 

exemption from disclosure requirements due to substantiated threat of reprisals), 

1996-46 (same), 2003-02 (same), 2009-01 (same); see also 72 Fed. Reg. 72901 

(“Organizations with significant and serious threats of reprisal or harassment may 

seek as-applied exemptions to the disclosure requirements under Socialist Workers

through advisory opinions and court filings.”). All FEC advisory opinions are 

available at http://saos.nictusa.com/saos/searchao. 

46
“lack of specific evidence”); see also Citizens United, 530 F. Supp. 2d at 281 

(rejecting plaintiff’s claim of reprisals, characterizing it is a “bald assertion” for 

which plaintiff “presented no specific evidentiary support”); Alaska Right To Life, 

441 F.3d at 793-94 (rejecting harassment-based, as-applied challenge to disclosure 

requirements). 

Appellants cite ORTL and Center for Individual Freedom, Inc. v. Ireland, 

Nos. 08-190 & 08-1133, 2009 WL 749868 (S.D. W. Va. Feb. 12, 2009) (CFIF), as 

examples of district courts issuing preliminary injunctions “in this context.” (Br. 

11 n.8.)19 However, the court did not issue an injunction as to the EC disclosure 

requirements in ORTL, finding that ORTL “has not even attempted to establish a 

record that would permit this Court to conclude that its contributors face a real 

threat of retaliation if their names were disclosed.” 2008 WL 4186312, at *9. 

Likewise, the court in CFIF found that CFIF had “not demonstrated that its 

members will be subject to threats, harassment, or reprisals even remotely 

approaching the severity of the situations in NAACP and Brown,” even though the 

state attorney general had publicly threatened legal action against CFIF. 2009 WL 

749868, at *25. 

In addition to showing no threat of reprisals, CTP has widely broadcast its 

ads, so its speech has not been chilled. See supra pp. 10-11. Moreover, 

 

19 The CFIF opinion appellants cite, 2008 WL 4642268 (S.D. W. Va. Oct. 17, 

2008), has been superseded by 2009 WL 749868. 

47
McConnell and numerous other cases have held that financial reporting relating to 

speech is, as a matter of law, too removed in time and space from the speech act to 

constitute a constitutional infringement on the speech itself. See McConnell, 540 

U.S. at 197-99, 201; see also Buckley v. Am. Constitutional Law Found., 525 U.S. 

at 198 (rejecting challenge to requirement that petition circulators file affidavits); 

cf. Harriss, 347 U.S. at 626 (rejecting First Amendment challenge to federal 

lobbyist disclosure statute because “hazard” of speech being silenced by financial 

disclosure was “too remote”). 

As to the disclaimer requirements, the Commission is aware of no authority 

— and CTP cites none — stating that a requirement to use a portion of a television 

commercial to convey important information relevant to that commercial creates a 

cognizable chill on the advertiser’s ability to advertise. The only concern CTP has 

stated regarding the disclaimers is that it “would prefer to use a shorter 

identification of itself so as not to consume so much valuable advertising time.” 

(J.A. 15-16 ¶36.) However, federal and state governments often permissibly 

require extensive oral and written information to be included in various 

communications, such as advertising for attorneys, pharmaceuticals, and securities. 

For example, the Second Circuit has rejected a First Amendment challenge to a 

state labeling law on similar grounds. Nat’l Elec. Mfrs. Ass’n v. Sorrell, 272 F.3d 

104, 116 (2d Cir. 2001) (noting “the potentially wide-ranging implications” of 

48
plaintiff’s First Amendment claim and refusing to call into question the 

constitutionality of such a variety of long-established requirements). In each of 

these areas, the advertiser undoubtedly would prefer to use its time and space for 

content other than a disclaimer, but the disclaimer requirements do not prevent 

plaintiff from advertising. They only require plaintiff, like all advertisers subject 

to regulation, to devote a few seconds of advertising time to inform the public, 

which is not a burden of constitutional dimension. 

B. Appellants Are Not Likely To Succeed On The Merits Of Their 

Challenge To The Analysis The Commission Uses To Determine 

Political Committee Status

 As a threshold issue, it is unclear whether CTP has presented an Article III 

case or controversy regarding the Commission’s political committee analysis 

because CTP’s fears that it would be deemed a political committee under 2 U.S.C. 

§431(4) are speculative. CTP does not allege it has received more than $1,000 in 

“contributions”; nor does it allege that it has made more than $1,000 in “expenditures,” but only disbursements for permissible corporate ECs. CTP also alleges 

that it does not meet the Supreme Court’s “major purpose” test. (J.A. 12-13 

¶¶28-30.) Thus, CTP’s challenge appears to present only an abstract inquiry that is 

not ripe or otherwise fit for judicial resolution. “‘Determination of the scope and 

constitutionality of legislation in advance of its immediate adverse effect in the 

context of a concrete case involves too remote and abstract an inquiry for the 

49
proper exercise of the judicial function.’” Renne v. Geary, 501 U.S. 312, 323 

(1991) (quoting Longshoremen’s Union v. Boyd, 347 U.S. 222, 224 (1954)).

1. The Commission’s Enforcement Analysis Is Not Reviewable 

Under The Administrative Procedure Act 

CTP challenges the Commission’s explanation of how it determines whether 

the “major purpose” test for political committee status has been met, as explained 

in an Explanation and Justification (E&J) published in the Federal Register. See

Political Committee Status, 72 Fed. Reg. 5595 (Feb. 7, 2007); supra pp. 8-9. 

Because this explanation binds no one and its discussion of the Commission’s 

political committee analysis does not constitute final agency action, this claim is 

not reviewable under the APA. Courts may only hear APA suits based on 

“[a]gency action made reviewable by statute and final agency action for which 

there is no other adequate remedy in a court.” 5 U.S.C. §704 (emphasis added). 

“Final” agency action ends the agency’s decision-making process and determines 

the rights and obligations of parties. Bennett v. Spear, 520 U.S. 154, 177-78 

(1997); Flue-Cured Tobacco Coop. Stabilization Corp. v. EPA, 313 F.3d 852 (4th 

Cir. 2002) (publication of report not final agency action); Invention Submission 

Corp. v. Rogan, 357 F.3d 452, 459 (4th Cir. 2004) (APA “does not provide judicial 

review for everything done by an administrative agency”) (citation omitted); see 

also Brock v. Cathedral Bluffs Shale Oil Co., 796 F.2d 533, 538-39 (D.C. Cir. 

1986) (enforcement policy and guidelines “used by inspectors as guidance in 

50
making individual enforcement decisions” not final agency action). But see RTAO, 

2008 WL 4416282, at *9 (FEC’s political committee explanation is reviewable). 

 After a rulemaking concerning political committee status, the Commission 

published its E&J to explain why it did not promulgate a revised regulatory 

definition of “political committee” or single out 26 U.S.C. §527 political 

organizations for increased regulation. 72 Fed. Reg. 5595. As part of that E&J, 

the Commission “discusse[d] several recently resolved administrative matters that 

provide considerable guidance to all organizations regarding ... political 

committee status.” Id. Its decision to continue analyzing political committee 

status on a case-by-case basis rather than promulgating a rule of general 

application was challenged and upheld in Shays v. FEC (Shays II), 511 F. Supp. 2d 

19 (D.D.C. 2007). The E&J’s primary purpose was to explain why a broad 

regulation was not created; it neither describes itself as a “policy statement,” nor 

purports to establish a binding norm or decide anyone’s legal status. CTP cites 

nothing to the contrary. The E&J did not create a new regulation or change past 

policy but simply explained how the Commission’s particular case-by-case 

enforcement actions provide “guidance” to organizations about political committee 

status and the major purpose test. 72 Fed. Reg. at 5604. This guidance is not 

51
“final” agency action subject to APA review.20 

2. The Commission’s Political Committee Analysis Is Lawful 

 a. Standard Of Review 

 Appellants’ facial challenge to the Commission’s enforcement analysis 

includes claims of overbreadth and vagueness. The Supreme Court has used 

various formulations in determining facial overbreadth. Compare, e.g., United 

States v. Salerno, 481 U.S. 739, 745 (1987) (plaintiff must “establish that no set of 

circumstances exists under which the Act would be valid”) with New York v. 

Ferber, 458 U.S. 747, 769-771 (1982) (plaintiff can succeed if it establishes that a 

“substantial number” of the challenged law’s applications are unconstitutional) 

(citing Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973)). Thus, at a minimum, 

CTP carries the “heavy burden of proving” that the challenged methodology’s 

“application to protected speech is substantial, ‘not only in an absolute sense, but 

also relative to the scope of the law’s plainly legitimate applications.’” McConnell, 

540 U.S. at 207 (citation omitted). CTP also argues that the enforcement analysis 

is unconstitutionally vague on its face, that is, that it fails to give “the person of 

ordinary intelligence a reasonable opportunity to know what is prohibited, so that 

 

20 In passing, CTP also criticizes (Br. 41 n.28) Commission regulations that are 

relevant to the Commission’s analysis of political committee status, but these 

regulations were not considered below and are not properly before this Court. 

52
he may act accordingly” and permits “arbitrary and discriminatory enforcement.” 

Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). 

b. The Commission’s Political Committee Analysis Is 

Neither Vague Nor Overbroad 

The Commission’s approach to political committee status is constitutional. 

As explained supra pp. 8-9, in Buckley the Court established the “major purpose” 

test and limited the definition of “political committee” to organizations controlled 

by a candidate or whose major purpose is the nomination or election of a 

candidate. Buckley, 424 U.S. at 79. “Expenditures of candidates and of ‘political 

committees’ so construed can be assumed to fall within the core area sought to be 

addressed by Congress. They are, by definition, campaign related.” Id.; see also

MCFL, 479 U.S. at 252 n.6 (plaintiff not a political committee because “[i]ts 

central organizational purpose is issue advocacy”); McConnell, 540 U.S. at 170 

n.64. 

 CTP’s claim focuses on the Commission’s implementation of the major 

purpose test, but the Commission’s approach is not unconstitutionally vague or 

overbroad. The assessment of an organization’s “major” purpose is inherently 

comparative and necessarily requires an understanding of an organization’s overall 

activities. In enforcement decisions, the Commission considers a variety of factors 

— most of which courts have endorsed or CTP does not challenge — to determine 

53
whether an organization’s major purpose is the election or defeat of a candidate.21 

Those factors include an organization’s public statements, representations made in 

government filings, statements made to potential donors, internal governing 

documents, and the proportionate amount of spending on election-related activity. 

See 72 Fed. Reg. at 5605. Although CTP concedes (Br. 41) that an organization’s 

“organic” documents are relevant to determine major purpose, documents like 

articles of incorporation paint only an abstract and incomplete picture of an 

organization’s actual activities and disbursements. Moreover, if CTP were correct 

(id.) that the only purpose of examining such documents is “to determine if there 

was an express intention to operate as a political committee, e.g., by being 

designated as a ‘separate segregated fund,’” that inquiry would be meaningless: 

Every entity designated as a separate segregated fund is, by definition, a political 

committee under 2 U.S.C. §431(4)(B), so the major purpose test is redundant for 

such entities.

 

21 The Commission generally considers the major purpose test after first 

determining that an organization has either spent more than $1,000 in expenditures 

or raised more than $1,000 in contributions. See 72 Fed. Reg. at 5603-04. The 

only court to address this approach has criticized the Commission for determining 

whether communicative expenditures contain express advocacy before evaluating 

the major purpose of an organization; the court believed that the express advocacy 

analysis is unnecessary for groups whose major purpose is known to be campaign 

related. Shays II, 511 F. Supp. 2d at 26-27. Although the Commission disagrees 

with that court’s criticism, it recognizes that its own interpretation may tend to 

limit the number of organizations that qualify as political committees. CTP 

ignores this conservative aspect of the Commission’s approach. 

54
 Courts have endorsed evaluation of public statements and an organization’s 

spending or contributions to determine its major purpose. See, e.g., FEC v. 

Malenick, 310 F. Supp. 2d 230, 234-37 (D.D.C. 2004) (considering organization’s 

statements in brochures and “fax alerts” sent to potential and actual contributors, as 

well as its spending influencing federal elections); FEC v. GOPAC, Inc., 917 F. 

Supp. 851, 859 (D.D.C. 1996) (“The organization’s purpose may be evidenced by 

its public statements of its purpose or by other means, such as its expenditures in 

cash or in kind to or for the benefit of a particular candidate or candidates.”). 

Courts also consider non-public statements. Malenick, 310 F. Supp. 2d at 235 

(letter from president to organization’s primary contributor); GOPAC, 917 F. Supp. 

at 864, 866 (description of organization’s meetings attended by national leaders; 

reference to organization’s “Political Strategy Campaign Plan and Budget”). 

 In numerous administrative enforcement proceedings and advisory opinions, 

the Commission has examined these factors and others to determine whether 

organizations satisfy the major purpose test. See 72 Fed. Reg. at 5605-06. The 

Commission has also declined to find reason to believe organizations should have 

registered as political committees in a number of recent matters.22 CTP does not 

allege that any of these analyses came to the wrong conclusion. Instead, CTP 

 

22 See, e.g., MURs 5779/5805 (City of Santa Clarita); 5820/5843 (ACORN); 

and 5928 (Kos Media LLC). Documents relating to closed MURs are available at 

http://eqs.nictusa.com/eqs/searcheqs. 

55
relies upon unsubstantiated and irrelevant allegations. For instance, CTP argues 

(Br. 40) that political committee status must be based upon “the major purpose” of 

an entity, not a major purpose, but fails to provide any evidence that the 

Commission has made any political committee determinations in a manner 

contrary to this principle. See 72 Fed. Reg. at 5601 (political committee status 

requires having “the major purpose of engaging in Federal campaign activity”).23 

The Commission’s approach is thus consistent with this Court’s statement in 

Leake II, 525 F.3d at 289: “While ‘the major purpose’ of an organization may be 

open to interpretation, it provides potentially regulated entities with sufficient 

direction to determine if they will be designated as a political committee.” 

 Finally, CTP argues (Br. 42-43 n.29) that the Commission has improperly 

reformulated the major purpose test to focus on “Federal campaign activity.” 

Buckley, however, uses the term “campaign related” to summarize legitimately 

regulable activity by political committees and to distinguish such organizations 

from groups “engaged purely in issue discussion.” 424 U.S. at 79. The 

Commission’s use of the phrase “federal campaign activity” when examining a 

group’s major purpose is thus reasonable and also takes into account that not all 

 

23 Another district court in this Circuit recently rejected essentially the same 

argument that CTP makes here, and this Court denied an injunction pending 

appeal. RTAO, 2008 WL 4416282, at *14 (“Because the FEC rule appears to 

consider the same factors as have been supported and encouraged by the courts in 

determining a ‘major purpose,’ Plaintiff fails to demonstrate a likelihood of 

success on the merits ....”). 

56
“campaign related” spending involves communications; it may also involve 

expenditures for activity such as gaining ballot access rather than payments for 

disseminating advocacy messages. Moreover, as the court in RTAO recognized, 

the use of the word “federal” simply clarifies that to satisfy the major purpose test 

an organization’s campaign activity must involve federal candidates, not state or 

local ones. See 72 Fed. Reg. at 5601; RTAO, 2008 WL 4416282, at *14. Like the 

rest of the Commission’s interpretation, this part is reasonable and constitutional. 

IV. THE PUBLIC INTEREST AND THE BALANCE OF HARMS 

WEIGH AGAINST THE ISSUANCE OF A PRELIMINARY 

INJUNCTION 

 Enjoining the Commission from enforcing its regulations would 

substantially injure the Commission and harm the public, whose interests are 

essentially the same as those of the Commission. “[A]ny time a State is enjoined 

by a court from effectuating statutes enacted by representatives of its people, it 

suffers ... injury.” New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 434 U.S. 

1345, 1351 (1977) (Rehnquist, J., in chambers). A “presumption of 

constitutionality ... attaches to every Act of Congress,” and that presumption is “an 

equity to be considered in favor of [the government] in balancing hardships.” 

Walters v. Nat’l Ass’n of Radiation Survivors, 468 U.S. 1323, 1324 (1984) 

(Rehnquist, J., in chambers). “[A] court sitting in equity cannot ‘ignore the 

judgment of Congress, deliberately expressed in legislation.’” United States v. 

57
Oakland Cannabis Buyer’s Co-op., 532 U.S. 483, 497 (2001) (quoting Va. Ry. Co. 

v. Ry. Employees, 300 U.S. 515, 551 (1937)). As Chief Justice Rehnquist stated in 

the similar context of a request for injunction pending appeal, “barring the 

enforcement of an Act of Congress would be an extraordinary remedy, particularly 

when this Court recently held [that Act] facially constitutional.” WRTL v. FEC, 

542 U.S. 1305, 1306 (2004) (Rehnquist, C.J., in chambers) (citing McConnell, 540 

U.S. at 189-210, and denying request regarding BCRA’s EC financing 

restrictions).

 The “harm to [the Commission] and considerations of public policy, in this 

case, are intertwined,” RTAO, 2008 WL 4416282, at *16, and the imminent harm 

to the public if the Commission is not permitted to enforce the statute far 

outweighs CTP’s speculative allegations. Moreover, the public also has a powerful 

interest in knowing that the laws written by its elected officials are being followed 

and enforced. In particular, as explained supra pp. 19-24, appellants’ challenges 

do not involve restrictions on speech, but disclosure of information to the public; 

and appellants have demonstrated no risk to themselves of serious reprisals or 

harassment, nor any imminent investigation by the Commission. 

In the key weeks leading up to the national election, a temporary lifting of 

the challenged provisions would have undermined the public’s confidence in the 

federal campaign finance system. The statute and enforcement analysis at issue 

58
implement longstanding limits on corporate influence in federal elections and 

ensure that political committees, whose major purpose is campaign activity, abide 

by certain contribution limits and disclose their receipts and disbursements to the 

public. CTP alleges that it is reasonable to expect suits challenging regulations in 

an election period (Br. 7), but this does not mean it is reasonable to change the 

rules less than one month before a national election. As a district court in this 

Circuit found, changing the rules weeks prior to an election does not benefit the 

public interest but rather supports denial of a preliminary injunction. Jackson, 476 

F. Supp. 2d at 530; see also RTAO, 2008 WL 4416282, at *16 (if court were to 

enter injunction, “the next two months of election law and enforcement would 

likely become a ‘wild west’ of electioneering communication and contributions 

without the challenged regulations in place”). 

V. CONCLUSION 

CTP argues that a preliminary injunction is necessary because the public has 

an interest in receiving its speech. However, the public has already received CTP’s 

speech, without a preliminary injunction. Its speech has not been chilled, it faces 

no risk of irreparable harm, and it is unlikely to succeed on the merits. Thus, the 

district court did not abuse its discretion when it held that appellants had failed to 

meet their heavy burden of justifying the extraordinary remedy of a preliminary 

injunction. 

59
60

ORAL ARGUMENT 

 The Commission requests oral argument. 

 Respectfully submitted, 

THOMASENIA P. DUNCAN 

General Counsel 

 /s/ David Kolker 

DAVID KOLKER 

Associate General Counsel 

HARRY J. SUMMERS 

Assistant General Counsel 

CLAIRE N. RAJAN 

Attorney 

Federal Election Commission 

999 E Street NW 

Washington, DC 20463 

April 17, 2009
CERTIFICATE OF COMPLIANCE 

This brief complies with the type-volume limitation of Fed. R. App. P. 

32(a)(7)(B) because this brief contains 13,955 words, excluding the parts of the 

brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). 

This brief complies with the typeface requirements of Fed. R. App. P. 

32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this 

brief has been prepared in a proportionally spaced typeface using Microsoft Word 

2003 in 14-point Times New Roman font. 

 /s/ David Kolker 

David Kolker 

Associate General Counsel 

COUNSEL FOR APPELLEE 

FEDERAL ELECTION COMMISSION 

999 E Street NW 

April 17, 2009 Washington, DC 20463 
CERTIFICATE OF SERVICE 

I hereby certify that on April 17, 2009, I will electronically file the foregoing 

using the Court’s CM/ECF system, which will then send a notification of such 

filing to the following: 

Michael Boos, michael.boos@gte.net 

James Bopp, Jr., jboppjr@aol.com 

Clayton James Callen, ccallen@bopplaw.com 

Richard Eugene Coleson, rcoleson@bopplaw.com 

 /s/ David Kolker 

David Kolker 

Associate General Counsel 

COUNSEL FOR APPELLEE 

FEDERAL ELECTION COMMISSION 

999 E Street NW 

Washington, DC 20463 
ADDENDUM 
ADDENDUM TABLE OF CONTENTS 

 

 Page 

2 U.S.C. § 431(4) .................................................................................................... A1 

2 U.S.C. § 434(f) ..................................................................................................... A1 

2 U.S.C. § 434(g) .................................................................................................... A3 

2 U.S.C. § 441d ....................................................................................................... A4 

11 C.F.R. § 114.15 .................................................................................................. A6 

Political Committee Status, 72 Fed. Reg. 5595 (Feb. 27, 2007) ............................ A8 
TITLE 2. THE CONGRESS

Chapter 14—Federal Election Campaigns

Subchapter 1—Disclosure of Federal Campaign Funds 

§ 431. Definitions 

When used in this Act: 

*** 

(4) The term “political committee” means— 

(A) any committee, club, association, or other group of persons which receives contributions aggregating 

in excess of $1,000 during a calendar year or which makes expenditures aggregating in excess of $1,000 

during a calendar year; or 

(B) any separate segregated fund established under the provisions of section 441b(b) of this title; or 

(C) any local committee of a political party which receives contributions aggregating in excess of $5,000 

during a calendar year, or makes payments exempted from the definition of contribution or expenditure as 

defined in paragraphs (8) and (9) of this section aggregating in excess of $5,000 during a calendar year, or 

makes contributions aggregating in excess of $1,000 during a calendar year or makes expenditures 

aggregating in excess of $1,000 during a calendar year. 

*** 

§ 434. Reporting Requirements 

(f)1 Disclosure of electioneering communications. 

(1) Statement required. Every person who makes a disbursement for the direct costs of producing 

and airing electioneering communications in an aggregate amount in excess of $10,000 during 

any calendar year shall, within 24 hours of each disclosure date, file with the Commission a 

statement containing the information described in paragraph (2). 

(2) Contents of statement. Each statement required to be filed under this subsection shall be made 

under penalty of perjury and shall contain the following information: 

(A) The identification of the person making the disbursement, of any person sharing or exercising 

direction or control over the activities of such person, and of the custodian of the books and 

accounts of the person making the disbursement. 

(B) The principal place of business of the person making the disbursement, if not an individual. 

(C) The amount of each disbursement of more than $200 during the period covered by the 

statement and the identification of the person to whom the disbursement was made. 

(D) The elections to which the electioneering communications pertain and the names (if known) 

of the candidates identified or to be identified. 

(E) If the disbursements were paid out of a segregated bank account which consists of funds 

contributed solely by individuals who are United States citizens or nationals or lawfully admitted 

for permanent residence (as defined in section 101(a)(20) of the Immigration and Nationality Act 

(8 U.S.C. § 1101(a)(20))) directly to this account for electioneering communications, the names 

and addresses of all contributors who contributed an aggregate amount of $1,000 or more to that 

account during the period beginning on the first day of the preceding calendar year and ending on 

the disclosure date. Nothing in this subparagraph is to be construed as a prohibition on the use of 

funds in such a segregated account for a purpose other than electioneering communications. 

 

1 Section 212(a) of the Bipartisan Campaign Reform Act of 2002 (BCRA), Pub. L. No. 107-155, amended section 434 

by striking the undesignated matter after subsection (c)(2) and adding new subsection (g). This amendment is effective 

as of November 6, 2002.

A1
(F) If the disbursements were paid out of funds not described in subparagraph (E), the names and 

addresses of all contributors who contributed an aggregate amount of $1,000 or more to the 

person making the disbursement during the period beginning on the first day of the preceding 

calendar year and ending on the disclosure date. 

(3) Electioneering communication. For purposes of this subsection— 

(A) In general. 

(i) The term ‘electioneering communication’ means any broadcast, cable, or satellite 

communication which— 

(I) refers to a clearly identified candidate for Federal office; 

(II) is made within— 

(aa) 60 days before a general, special, or runoff election for the office sought by the candidate; or 

(bb) 30 days before a primary or preference election, or a convention or caucus of a political party 

that has authority to nominate a candidate, for the office sought by the candidate; and 

(III) in the case of a communication which refers to a candidate for an office other than President 

or Vice President, is targeted to the relevant electorate. 

(ii) If clause (i) is held to be constitutionally insufficient by final judicial decision to support the 

regulation provided herein, then the term ‘electioneering communication’ means any broadcast, 

cable, or satellite communication which promotes or supports a candidate for that office, or 

attacks or opposes a candidate for that office (regardless of whether the communication expressly 

advocates a vote for or against a candidate) and which also is suggestive of no plausible meaning 

other than an exhortation to vote for or against a specific candidate. Nothing in this subparagraph 

shall be construed to affect the interpretation or application of section 100.22(b) of title 11, Code 

of Federal Regulations. 

(B) Exceptions. The term ‘electioneering communication’ does not include— 

(i) a communication appearing in a news story, commentary, or editorial distributed through the 

facilities of any broadcasting station, unless such facilities are owned or controlled by any 

political party, political committee, or candidate; 

(ii) a communication which constitutes an expenditure or an independent expenditure under this 

Act; 

(iii) a communication which constitutes a candidate debate or forum conducted pursuant to 

regulations adopted by the Commission, or which solely promotes such a debate or forum and is 

made by or on behalf of the person sponsoring the debate or forum; or 

(iv) any other communication exempted under such regulations as the Commission may 

promulgate (consistent with the requirements of this paragraph) to ensure the appropriate 

implementation of this paragraph, except that under any such regulation a communication may 

not be exempted if it meets the requirements of this paragraph and is described in section 

301(20)(A)(iii) (2 U.S.C. § 431(20)(A)(iii)). 

(C) Targeting to relevant electorate. For purposes of this paragraph, a communication which 

refers to a clearly identified candidate for Federal office is ‘targeted to the relevant electorate’ if 

the communication can be received by 50,000 or more persons— 

(i) in the district the candidate seeks to represent, in the case of a candidate for Representative in, 

or Delegate or Resident Commissioner to, the Congress; or 

(ii) in the State the candidate seeks to represent, in the case of a candidate for Senator. 

(4) Disclosure date. For purposes of this subsection, the term ‘disclosure date’ means— 

(A) the first date during any calendar year by which a person has made disbursements for the 

direct costs of producing or airing electioneering communications aggregating in excess of 

$10,000; and 

(B) any other date during such calendar year by which a person has made disbursements for the 

direct costs of producing or airing electioneering communications aggregating in excess of 

$10,000 since the most recent disclosure date for such calendar year. 

A2
(5) Contracts to disburse. For purposes of this subsection, a person shall be treated as having 

made a disbursement if the person has executed a contract to make the disbursement. 

(6) Coordination with other requirements. Any requirement to report under this subsection shall 

be in addition to any other reporting requirement under this Act. 

(7) Coordination with Internal Revenue Code. Nothing in this subsection may be construed to 

establish, modify, or otherwise affect the definition of political activities or electioneering 

activities (including the definition of participating in, intervening in, or influencing or attempting 

to influence a political campaign on behalf of or in opposition to any candidate for public office) 

for purposes of the Internal Revenue Code of 1986. 

(g) 1Time for reporting certain expenditures. 

(1) Expenditures aggregating $1,000. 

(A) Initial report. A person (including a political committee) that makes or contracts to make 

independent expenditures aggregating $1,000 or more after the 20th day, but more than 24 hours, 

before the date of an election shall file a report describing the expenditures within 24 hours. 

(B) Additional reports. After a person files a report under subparagraph (A), the person shall file 

an additional report within 24 hours after each time the person makes or contracts to make 

independent expenditures aggregating an additional $1,000 with respect to the same election as 

that to which the initial report relates. 

(2) Expenditures aggregating $10,000. 

(A) Initial report. A person (including a political committee) that makes or contracts to make 

independent expenditures aggregating $10,000 or more at any time up to and including the 20th 

day before the date of an election shall file a report describing the expenditures within 48 hours. 

(B) Additional reports. After a person files a report under subparagraph (A), the person shall file 

an additional report within 48 hours after each time the person makes or contracts to make 

independent expenditures aggregating an additional $10,000 with respect to the same election as 

that to which the initial report relates. 

(3) Place of filing; Contents. A report under this subsection— 

(A) shall be filed with the Commission; and 

(B) shall contain the information required by subsection (b)(6)(B)(iii), including the name of each 

candidate whom an expenditure is intended to support or oppose. 

(4) Time of filing for expenditures aggregating $1,000. Notwithstanding subsection (a)(5), the 

time at which the statement under paragraph (1) is received by the Commission or any other 

recipient to whom the notification is required to be sent shall be considered the time of filing of 

the statement with the recipient. 

*** 

 

1 Section 212(a) of the Bipartisan Campaign Reform Act of 2002 (BCRA), Pub. L. No. 107-155, amended section 434 

by striking the undesignated matter after subsection (c)(2) and adding new subsection (g). This amendment is effective 

as of November 6, 2002.

A3
§ 441d. Publication and distribution of statements and solicitations; charge for newspaper 

or magazine space1

(a) Whenever a political committee makes a disbursement for the purpose of financing any 

communication through any broadcasting station, newspaper, magazine, outdoor advertising 

facility, mailing, or any other type of general public political advertising, or whenever any person 

makes a disbursement for the purpose of financing communications expressly advocating the 

election or defeat of a clearly identified candidate, or solicits any contribution through any 

broadcasting station, newspaper, magazine, outdoor advertising facility, mailing, or any other 

type of general public political advertising or makes a disbursement for an electioneering communication (as defined in section 304(f)(3)) (2 U.S.C. § 434(f)(3)), such communication— 

(1) if paid for and authorized by a candidate, an authorized political committee of a candidate, or 

its agents, shall clearly state that the communication has been paid for by such authorized political committee, or 

(2) if paid for by other persons but authorized by a candidate, an authorized political committee 

of a candidate, or its agents, shall clearly state that the communication is paid for by such other 

persons and authorized by such authorized political committee; 

(3) if not authorized by a candidate, an authorized political committee of a candidate, or its 

agents, shall clearly state the name and permanent street address, telephone number or World 

Wide Web address of the person who paid for the communication and state that the 

communication is not authorized by any candidate or candidate’s committee. 

(b) No person who sells space in a newspaper or magazine to a candidate or to the agent of a 

candidate, for use in connection with such candidate’s campaign, may charge any amount for 

such space which exceeds the amount charged for comparable use of such space for other 

purposes. 

(c) Specification. Any printed communication described in subsection (a) shall— 

(1) be of sufficient type size to be clearly readable by the recipient of the communication; 

(2) be contained in a printed box set apart from the other contents of the communication; and 

(3) be printed with a reasonable degree of color contrast between the background and the printed 

statement. 

(d) Additional requirements.

(1) Communications by candidates or authorized persons.

(A) By radio. Any communication described in paragraph (1) or (2) of subsection (a) which is 

transmitted through radio shall include, in addition to the requirements of that paragraph, an audio 

statement by the candidate that identifies the candidate and states that the candidate has approved 

the communication. 

(B) By television. Any communication described in paragraph (1) or (2) of subsection (a) which is 

transmitted through television shall include, in addition to the requirements of that paragraph, a 

statement that identifies the candidate and states that the candidate has approved the 

communication. Such statement— 

(i) shall be conveyed by— 

(I) an unobscured, full-screen view of the candidate making the statement, or 

(II) the candidate in voice-over, accompanied by a clearly identifiable photographic or similar image of the candidate; and 

 

1 Section 311 of the Bipartisan Campaign Reform Act of 2002 (BCRA), Pub. L. No. 107-155, amended section 441d to 

revise the language of subsection (a) and insert subsections (c) and (d). This amendment is effective as of November 6, 

2002. It does not apply with respect to runoff elections or recounts of contested elections resulting from elections held 

prior to November 6, 2002. See section 402(a)(4) of BCRA, cited at Note, 2 U.S.C. § 431.

A4
(ii) shall also appear in writing at the end of the communication in a clearly readable manner with 

a reasonable degree of color contrast between the background and the printed statement, for a 

period of at least 4 seconds. 

(2) Communications by others. Any communication described in paragraph (3) of subsection (a) 

which is transmitted through radio or television shall include, in addition to the requirements of 

that paragraph, in a clearly spoken manner, the following audio statement: ‘_____ is responsible 

for the content of this advertising.’ (with the blank to be filled in with the name of the political 

committee or other person paying for the communication and the name of any connected 

organization of the payor). If transmitted through television, the statement shall be conveyed by 

an unobscured, full-screen view of a representative of the political committee or other person 

making the statement, or by a representative of such political committee or other person in voiceover, and shall also appear in a clearly readable manner with a reasonable degree of color contrast 

between the background and the printed statement, for a period of at least 4 seconds. 

A5
11 C.F.R. § 114.15 Permissible use of corporate and labor organization funds for certain 

electioneering communications. 

(a) Permissible electioneering communications. Corporations and labor organizations may make 

an electioneering communication, as defined in 11 CFR 100.29, to those outside the restricted 

class unless the communication is susceptible of no reasonable interpretation other than as an 

appeal to vote for or against a clearly identified Federal candidate. 

(b) Safe harbor. An electioneering communication is permissible under paragraph (a) of this 

section if it: 

(1) Does not mention any election, candidacy, political party, opposing candidate, or voting by 

the general public; 

(2) Does not take a position on any candidate’s or officeholder’s character, qualifications, or 

fitness for office; and 

(3) Either: 

(i) Focuses on a legislative, executive or judicial matter or issue; and (A) Urges a candidate to 

take a particular position or action with respect to the matter or issue, or (B) Urges the public to 

adopt a particular position and to contact the candidate with respect to the matter or issue; or 

(ii) Proposes a commercial transaction, such as purchase of a book, video, or other product or 

service, or such as attendance (for a fee) at a film exhibition or other event. 

(c) Rules of interpretation. If an electioneering communication does not qualify for the safe 

harbor in paragraph (b) of this section, the Commission will consider whether the communication 

includes any indicia of express advocacy and whether the communication has an interpretation 

other than as an appeal to vote for or against a clearly identified Federal candidate in order to 

determine whether, on balance, the communication is susceptible of no reasonable interpretation 

other than as an appeal to vote for or against a clearly identified Federal candidate. 

(1) A communication includes indicia of express advocacy if it: (i) Mentions any election, 

candidacy, political party, opposing candidate, or voting by the general public; or (ii) Takes a 

position on any candidate’s or officeholder’s character, qualifications, or fitness for office. 

(2) Content that would support a determination that a communication has an interpretation other 

than as an appeal to vote for or against a clearly identified Federal candidate includes content 

that: 

(i) Focuses on a public policy issue and either urges a candidate to take a position on the issue or 

urges the public to contact the candidate about the issue; or 

(ii) Proposes a commercial transaction, such as purchase of a book, video or other product or 

service, or such as attendance (for a fee) at a film exhibition or other event; or (iii) Includes a call 

to action or other appeal that interpreted in conjunction with the rest of the communication urges 

an action other than voting for or against or contributing to a clearly identified Federal candidate 

or political 

party. 

(3) In interpreting a communication under paragraph (a) of this section, any doubt will be 

resolved in favor of permitting the communication. 

(d) Information permissibly considered. In evaluating an electioneering communication under 

this section, the Commission may consider only the communication itself and basic background 

information that may be necessary to put the communication in context and which can be 

established with minimal, if any, discovery. Such information may include, for example, whether 

a named individual is a candidate for office or whether a communication describes a public policy 

issue. 

(e) Examples of communications. A list of examples derived from prior Commission or judicial 

actions of communications that have been determined to be permissible and of communications 

that have been determined not to be permissible under paragraph (a) of this 

A6
section is available on the Commission’s Web site, http://www.fec.gov. 

 (f) Reporting requirement. Corporations and labor organizations that make electioneering 

communications under paragraph (a) of this section aggregating in excess of $10,000 in a 

calendar year shall file statements as required by 11 CFR 104.20. 

[72 FR 72914, Dec. 26, 2007]

A7
This section of the FEDERAL REGISTER

contains regulatory documents having general

applicability and legal effect, most of which

are keyed to and codified in the Code of

Federal Regulations, which is published under

50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by

the Superintendent of Documents. Prices of

new books are listed in the first FEDERAL

REGISTER issue of each week.

Rules and Regulations Federal Register

5595 

Vol. 72, No. 25 

Wednesday, February 7, 2007 

NUCLEAR REGULATORY 

COMMISSION 

10 CFR Part 72 

RIN 3150–AH93 

List of Approved Spent Fuel Storage 

Casks: NUHOMS HD Addition; 

Correction 

AGENCY: Nuclear Regulatory 

Commission. 

ACTION: Correcting amendment. 

SUMMARY: This document corrects a 

final rule appearing in the Federal 

Register on December 11, 2006 (71 FR 

71463) to add the NUHOMS HD cask 

system to the list of approved spent fuel 

storage casks. This action is necessary to 

correct an erroneous date. 

DATES: Effective Date: January 10, 2007. 

FOR FURTHER INFORMATION CONTACT: 

Jayne McCausland, telephone 301–415– 

6219, Office of Federal and State 

Materials and Environmental 

Management Programs, U.S. Nuclear 

Regulatory Commission, Washington, 

DC 20555–0001. 

SUPPLEMENTARY INFORMATION: On 

December 11, 2006 (71 FR 71463), 

Certificate of Compliance 1030 was 

added to the list of approved spent fuel 

storage casks. The December 11, 2006, 

document contained an incorrect 

Certificate Expiration Date. This 

document corrects that date. 

List of Subjects in 10 CFR Part 72 

Administrative practice and 

procedure, Criminal penalties, 

Manpower training programs, Nuclear 

materials, Occupational safety and 

health, Penalties, Radiation protection, 

Reporting and recordkeeping 

requirements, Security measures, Spent 

fuel, Whistleblowing. 

■ Accordingly, 10 CFR part 72 is 

corrected by making the following 

correcting amendment. 

PART 72—LICENSING 

REQUIREMENTS FOR THE 

INDEPENDENT STORAGE OF SPENT 

NUCLEAR FUEL, HIGH-LEVEL 

RADIOACTIVE WASTE AND 

REACTOR-RELATED GREATER THAN 

CLASS C WASTE 

■ 1. The authority citation for 10 CFR 

part 72 continues to read as follows: 

Authority: Secs. 51, 53, 57, 62, 63, 65, 69, 

81, 161, 182, 183, 184, 186, 187, 189, 68 Stat. 

929, 930, 932, 933, 934, 935, 948, 953, 954, 

955, as amended, sec. 234, 83 Stat. 444, as 

amended (42 U.S.C. 2071, 2073, 2077, 2092, 

2093, 2095, 2099, 2111, 2201, 2232, 2233, 

2234, 2236, 2237, 2238, 2282); sec. 274, Pub. 

L. 86–373, 73 Stat. 688, as amended (42 

U.S.C. 2021); sec. 201, as amended, 202, 206, 

88 Stat. 1242, as amended, 1244, 1246 (42 

U.S.C. 5841, 5842, 5846); Pub. L. 95–601, sec. 

10, 92 Stat. 2951, as amended by Pub. L. 102– 

486, sec. 7902, 106 Stat. 3123 (42 U.S.C. 

5851); sec. 102, Pub. L. 91–190, 83 Stat. 853 

(42 U.S.C. 4332); secs. 131, 132, 133, 135, 

137, 141, Pub. L. 97–425, 96 Stat. 2229, 2230, 

2232, 2241, sec. 148, Pub. L. 100–203, 101 

Stat. 1330–235 (42 U.S.C. 10151, 10152, 

10153, 10155, 10157, 10161, 10168); sec. 

1704, 112 Stat. 2750 (44 U.S.C. 3504 note); 

sec. 651(e), Pub. L. 109–58, 119 Stat. 806–810 

(42 U.S.C. 2014, 2021, 2021b, 2111). 

Section 72.44(g) also issued under secs. 

142(b) and 148(c), (d), Pub. L. 100–203, 101 

Stat. 1330–232, 1330–236 (42 U.S.C. 

10162(b), 10168(c), (d)). Section 72.46 also 

issued under sec. 189, 68 Stat. 955 (42 U.S.C. 

2239); sec. 134, Pub. L. 97–425, 96 Stat. 2230 

(42 U.S.C. 10154). Section 72.96(d) also 

issued under sec. 145(g), Pub. L. 100–203, 

101 Stat. 1330–235 (42 U.S.C. 10165(g)). 

Subpart J also issued under secs. 2(2), 2(15), 

2(19), 117(a), 141(h), Pub. L. 97–425, 96 Stat. 

2202, 2203, 2204, 2222, 2224 (42 U.S.C. 

10101, 10137(a), 10161(h)). Subparts K and L 

are also issued under sec. 133, 98 Stat. 2230 

(42 U.S.C. 10153) and sec. 218(a), 96 Stat. 

2252 (42 U.S.C. 10198). 

■ 2. In § 72.214, Certificate of 

Compliance 1030 is corrected by 

revising the Certificate Expiration date 

to read as follows: 

§ 72.214 List of approved spent fuel 

storage casks. 

* * * * * 

Certificate Number: 1030. 

* * * * * 

Certificate Expiration date: January 10, 

2027. 

* * * * * 

Dated at Rockville, Maryland, this 1st day 

of February 2007. 

For the Nuclear Regulatory Commission. 

Michael T. Lesar, 

Federal Register Liaison Officer. 

[FR Doc. E7–2035 Filed 2–6–07; 8:45 am] 

BILLING CODE 7590–01–P 

FEDERAL ELECTION COMMISSION 

11 CFR Part 100 

[Notice 2007–3] 

Political Committee Status 

AGENCY: Federal Election Commission. 

ACTION: Supplemental Explanation and 

Justification. 

SUMMARY: In November 2004, the 

Federal Election Commission (‘‘FEC’’) 

adopted new regulations codifying 

when an organization’s solicitations 

generate ‘‘contributions’’ under the 

Federal Election Campaign Act (‘‘FECA’’ 

or ‘‘the Act’’), and consequently, require 

that organization, regardless of tax 

status, to register as a political 

committee with the FEC. Additionally, 

the Commission substantially revised its 

allocation regulations to require the 

costs of voter drives, certain campaign 

advertisements, and a political 

committee’s general administrative costs 

be paid for in whole or in substantial 

part with funds subject to FECA’s limits, 

prohibitions, and reporting 

requirements. Pursuant to Shays v. FEC, 

424 F. Supp. 2d 100 (D.D.C. 2006) 

(‘‘Shays II’’), the Commission is 

publishing a supplemental Explanation 

and Justification to provide a more 

detailed explanation of (a) The basis for 

the measures it adopted and (b) the 

reasons it declined to revise the 

regulatory definition of ‘‘political 

committee’’ to single out organizations 

exempt from Federal taxation under 

section 527 of the Internal Revenue 

Code (‘‘527 organizations’’) for 

increased regulation. This document 

also discusses several recently resolved 

administrative matters that provide 

considerable guidance to all 

organizations regarding the receipt of 

contributions, making of expenditures, 

and political committee status. 

EFFECTIVE DATE: February 7, 2007. 

FOR FURTHER INFORMATION CONTACT: Mr. 

J. Duane Pugh Jr., Acting Assistant 

General Counsel, or Ms. Margaret G. 

Perl, Attorney, 999 E Street, NW., 


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5596 Federal Register / Vol. 72, No. 25 / Wednesday, February 7, 2007 / Rules and Regulations 

1The comments and transcripts of the public 

hearing are available at http://www.fec.gov/law/ 

RulemakingArchive.shmtl under ‘‘Political 

Committee Status (2004)’’. 

2Under the Internal Revenue Code, a 527 

organization is ‘‘a party, committee, association, 

fund, or other organization (whether or not 

incorporated) organized and operated primarily for 

the purpose of directly or indirectly accepting 

contributions or making expenditures, or both, for 

an exempt function.’’ 26 U.S.C. 527(e)(1). The 

‘‘exempt function’’ of 527 organizations is the 

‘‘function of influencing or attempting to influence 

the selection, nomination, election, or appointment 

of any individual to any Federal, State, or local 

public office or office in a political organization,’’

or the election or selection of presidential or vice 

presidential electors. 26 U.S.C. 527(e)(2). Virtually 

all political committees that register with the 

Commission under FECA are also tax exempt under 

section 527 of the Internal Revenue Code, including 

political party committees, authorized campaign 

committees of candidates, separate segregated 

funds, and nonconnected committees. See 11 CFR 

1005. 

3 Documents related to this litigation are available 

at http://www.fec.gov/law/litigation_CAA_Alpha.

shtml#shays_04. 

4Pub. L. 107–155, 116 Stat. 81 (Mar. 7, 2002). 

Washington, DC 20463, (202) 694–1650 

or (800) 424–9530. 

SUPPLEMENTARY INFORMATION: 

Explanation and Justification 

On November 23, 2004, following an 

extensive rulemaking process, the 

Commission adopted new regulations to 

ensure that organizations that 

participate in Federal elections conduct 

their activities in compliance with 

Federal law. This rulemaking generated 

an extraordinary amount of public 

engagement on the issue of when 

organizations should have to register 

with and report their activities to the 

FEC. The Commission received and 

considered over 100,000 written 

comments, including comments from 

approximately 150 Members of 

Congress, many political party 

organizations, hundreds of non-profit 

organizations, as well as academics, 

trade associations, and labor 

organizations. Additionally, the 

Commission heard testimony from 31 

witnesses during two days of public 

hearings on April 14 and 15, 2004.1

At the end of this process, the 

Commission amended its regulations in 

two significant ways. First, the 

Commission adopted a regulation 

codifying when an organization’s 

solicitations generate ‘‘contributions’’

under FECA, and consequently, may 

require an organization to register as a 

political committee with the FEC. 

Second, the Commission substantially 

revised its allocation regulations to 

require that voter drives and campaign 

ads that target Federal elections, as well 

as a substantial portion of a political 

committee’s administrative costs, be 

paid for with funds subject to Federal 

limits, prohibitions, and reporting 

requirements. See Final Rules on 

Political Committee Status, Definition of 

Contribution, and Allocation for 

Separate Segregated Funds and 

Nonconnected Committees, 69 FR 

68056, 68056–63 (Nov. 23, 2004) (‘‘2004 

Final Rules’’); see also 11 CFR 100.57 

and 106.6. The 2004 Final Rules also 

explained the Commission’s decision 

not to re-define the terms ‘‘political 

committee’’ in 11 CFR 100.5 and 

‘‘expenditure’’ in 11 CFR 100.110 

through 100.154, including the 

Commission’s decision not to establish 

a separate political committee definition 

singling out 527 organizations.2 See 

2004 Final Rules, 69 FR at 68063–65. 

The 2004 Final Rules took effect January 

1, 2005. Id. at 68056. 

In 2004, an action was brought before 

the U.S. District Court of the District of 

Columbia challenging the Commission’s 

decision not to revise the regulatory 

definition of ‘‘political committee.’’ See 

Shays II, 424 F. Supp. 2d at 114–17.3

Plaintiffs sought a court order directing 

the Commission to promulgate a rule 

specifically addressing the political 

committee status of all 527 

organizations. Id. at 116. The district 

court rejected the plaintiffs’ request to 

order the Commission to commence a 

new rulemaking, concluding that 

nothing in FECA, Congress’s mostrecent amendments in the Bipartisan 

Campaign Reform Act of 2002 

(‘‘BCRA’’),4 or the Supreme Court’s 

decision in McConnell v. FEC, 540 U.S. 

93 (2003), required the Commission to 

adopt such rules. Shays II, 424 F. Supp. 

2d at 108. Case law, the Shays II court 

explained, demonstrates ‘‘that a 

statutory mandate is a crucial 

component to a finding that an agency’s 

reliance on adjudication [is] arbitrary 

and capricious.’’ Id. at 114. The district 

court found, however, that the 

Commission ‘‘failed to present a 

reasoned explanation for its decision’’

not to regulate 527 organizations 

specifically by virtue of their status 

under the Internal Revenue Code, and 

remanded the case to the Commission 

‘‘to explain its decision or institute a 

new rulemaking.’’ Id. at 116–17. 

The Commission did not appeal the 

district court’s ruling. Instead, the 

Commission is issuing this 

supplemental Explanation and 

Justification to explain its decision not 

to use tax law classifications as a 

substitute for making determinations of 

political committee status under FECA, 

as construed by the courts. By adopting 

a new regulation under which any 

organization may be required to register 

as a political committee and by 

tightening the rules governing how 

political committees fund activity for 

the purpose of influencing Federal 

elections, the Commission has acted to 

prevent circumvention not by just 527 

organizations, but by groups of all 

kinds. As further explained, the 

Commission’s decision not to single out 

527 organizations is entirely consistent 

with the statutory scheme, Supreme 

Court precedent, and Congressional 

action regarding 527 organizations. 

Political committee status, whether 

articulated in FECA, Supreme Court 

interpretations of FECA, or the 

Commission’s regulations, must be 

applied and enforced by the 

Commission through a case-by-case 

analysis of a specific organization’s 

conduct. Existing regulations, bolstered 

by the adoption of the 2004 Final Rules, 

leave the Commission with a very 

effective mechanism for addressing 

claims that organizations of any tax 

status should be registered as political 

committees under FECA. The 

Commission’s recent enforcement 

experience confirms this conclusion. 

Parts A and D of this document 

explain the framework for establishing 

political committee status under FECA, 

as interpreted by the Supreme Court. 

Parts B and C explain why reliance on 

a group’s tax exempt status under 

section 527 of the Internal Revenue 

Code cannot substitute for an analysis of 

the group’s conduct. Part E discusses 

the new and amended rules the 

Commission adopted in 2004, which 

codified an additional trigger for 

political committee status and increased 

the Federal funding requirements to 

participate in certain election-related 

activities. Finally, Part F describes the 

significance of several recently resolved 

enforcement matters that illustrate the 

sufficiency of the legal basis for the 

Commission’s political committee status 

determinations. 

A. FECA Provides a Specific, ConductBased Framework for Establishing 

Political Committee Status 

Since its enactment in 1971, FECA 

has placed strict limits and source 

prohibitions on the contributions 

received by organizations that are 

defined as political committees. Under 

the Act, an organization’s conduct has 

always been the basis for determining 

whether it is required to register and 

abide by the Act’s requirements as a 

political committee. Likewise, since its 

enactment in 1971, the determination of 

political committee status has taken 

place on a case-by-case basis. FECA 

defines a ‘‘political committee’’ as ‘‘any 

committee, club, association, or other 

group of persons which receives 


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A9
Federal Register / Vol. 72, No. 25 / Wednesday, February 7, 2007 / Rules and Regulations 5597 

5See H.R. Doc. No. 97–293, at 7–8 and 29–30 

(1975) addressing 11 CFR 100.14 (1976), which was 

recodified as 11 CFR 100.5 in 1980. See 45 FR 

15080 (Mar. 7, 1980). 

6The Supreme Court applies a different analysis 

to coordinated expenditures. See Buckley, 424 U.S. 

at 46–47 (‘‘They argue that expenditures controlled 

by or coordinated with the candidate and his 

campaign might well have virtually the same value 

to the candidate as a contribution and would pose 

similar dangers of abuse. yet such controlled or 

coordinated expenditures are treated as 

contributions rather than expenditures under the 

Act.’’). Cf. AO 2006–20 Unity ’08 (finding monies 

spent on ballot access through petition drives by an 

organization supporting only two candidates, both 

yet to be selected, one for the office of President of 

the United States and one for the office of Vice 

President, are expenditures). 

contributions aggregating in excess of 

$1,000 during a calendar year or which 

makes expenditures aggregating in 

excess of $1,000 during a calendar 

year.’’ See 2 U.S.C. 431(4)(A). FECA 

further defines the terms ‘‘contribution’’

and ‘‘expenditure,’’ limiting these terms 

to those receipts and disbursements 

made ‘‘for the purpose of influencing 

any election for Federal office.’’ 2 U.S.C. 

431(8) and (9). Commission regulations 

first promulgated in 1975 essentially 

repeat FECA’s definition of ‘‘political 

committee.’’ 11 CFR 100.5(a).5

Congress has not materially amended 

the definition of ‘‘political committee’’

since the enactment of section 431(4)(A) 

in 1971, nor has Congress at any time 

since required the Commission to adopt 

or amend its regulations in this area. 

Indeed, in 2002, when Congress made 

sweeping changes in campaign finance 

law pursuant to BCRA, it left the 

definition of ‘‘political committee’’

undisturbed and political committee 

status to be determined on a case-bycase basis. 

To address constitutional concerns 

raised when FECA was adopted, the 

Supreme Court added two additional 

requirements that affect the statutory 

definition of political committee. First, 

the Supreme Court held, when applied 

to communications made independently 

of a candidate or a candidate’s 

committee, the term ‘‘expenditure’’

includes only ‘‘expenditures for 

communications that in express terms 

advocate the election or defeat of a 

clearly identified candidate for federal 

office.’’ Buckley v. Valeo, 424 U.S. 1, 44, 

80 (1976).6 Second, the Supreme Court 

mandated that an additional hurdle was 

necessary to avoid Constitutional 

vagueness concerns; only organizations 

whose ‘‘major purpose’’ is the 

nomination or election of a Federal 

candidate can be considered ‘‘political 

committees’’ under the Act. Id. at 79. 

The court deemed this necessary to 

avoid the regulation of activity 

‘‘encompassing both issue discussion 

and advocacy of a political result.’’ See, 

e.g., Buckley, 424 U.S. at 79; FEC v. 

Massachusetts Citizens for Life, Inc., 479 

U.S. 238, 262 (1986) (‘‘MCFL’’). 

Neither BCRA, McConnell, nor any 

other legislative, regulatory, or judicial 

action has eliminated (1) The Supreme 

Court’s express advocacy requirement 

for expenditures on communications 

made independently of a candidate or 

(2) the Court’s major purpose test. In its 

2003 McConnell decision, the Supreme 

Court implicitly endorsed the major 

purpose framework to uphold BCRA’s 

regulation of political party activity 

against vagueness concerns. See 

McConnell, 540 U.S. at 170 n.64 (‘‘This 

is particularly the case here, since 

actions taken by political parties are 

presumed to be in connection with 

election campaigns. See Buckley, 424 

U.S. at 79, 96 S. Ct. 612 (noting that a 

general requirement that political 

committees disclose their expenditures 

raised no vagueness problems because 

the term ‘political committee’ ‘need 

only encompass organizations that are 

under the control of a candidate or the 

major purpose of which is the 

nomination or election of a candidate 

***’)’’). 

McConnell also addressed the Buckley 

expenditure framework, finding, ‘‘the 

express advocacy limitation, in both the 

expenditure and disclosure contexts, 

was the product of statutory 

interpretation rather than a 

constitutional command.’’ McConnell, 

540 U.S. at 191–92. However, the Court 

made it clear that FECA continued to 

contain the express advocacy limitation 

as to expenditures on communications 

made independently of a candidate, 

because Congress, in enacting BCRA, 

modified the limitation only insofar as 

it applied to ‘‘electioneering 

communications.’’ The Court found: 

Since our decision in Buckley, Congress’

power to prohibit corporations and unions 

from using funds in their treasuries to 

finance advertisements expressly advocating 

the election or defeat of candidates has been 

firmly embedded in our law * * * Section 

203 of BCRA amends [2 U.S.C. 441b(b)(2)] to 

extend this rule, which previously applied 

only to express advocacy, to all 

‘electioneering communications’ covered by 

the definition of that term in [2 U.S.C. 

434(f)(3)]. 

McConnell, 540 U.S. at 203–04. 

Congress did not amend the definition 

of expenditure in BCRA, and in fact, 

specified that ‘‘electioneering 

communications’’ are not expenditures 

under the Act. 2 U.S.C. 434(f)(1) and (2) 

(treating electioneering communications 

as ‘‘disbursements’’). Accordingly, 

while BCRA, as interpreted by 

McConnell, did not extend Buckley’s 

express advocacy limitation to the 

regulation of ‘‘electioneering 

communications,’’ it also did not alter 

that limitation as to expenditures on 

communications made independently of 

a candidate. Absent future 

Congressional action altering the 

definition of ‘‘expenditure,’’ the 

Supreme Court’s limitation of 

expenditures, on communications made 

independently of a candidate, to 

‘‘express advocacy’’ continues to apply. 

Therefore, determining political 

committee status under FECA, as 

modified by the Supreme Court, 

requires an analysis of both an 

organization’s specific conduct—

whether it received $1,000 in 

contributions or made $1,000 in 

expenditures—as well as its overall 

conduct—whether its major purpose is 

Federal campaign activity (i.e., the 

nomination or election of a Federal 

candidate). Neither FECA, its 

subsequent amendments, nor any 

judicial decision interpreting either, has 

substituted tax status as an acceptable 

proxy for this conduct-based 

determination. 

The Commission has promulgated 

regulations defining in detail what 

constitutes a ‘‘contribution’’ and an 

‘‘expenditure.’’ See 11 CFR 100.51 to 

100.94 and 100.110 to 100.155. Many 

administrative actions, including the 

recently resolved actions against several 

527 organizations that are described in 

Part F below, include substantial 

investigations and case-by-case analyses 

and determinations of whether a group’s 

fundraising generated ‘‘contributions’’

and whether payments for its 

communications made independently of 

a candidate constituted ‘‘expenditures,’’

as alternative prerequisites to a 

determination that a group is a political 

committee, prior to any consideration of 

the group’s major purpose. Additional 

regulations defining ‘‘contribution’’ and 

‘‘expenditure’’ would not obviate the 

need for a case-by-case investigation 

and determination in a Commission 

enforcement proceeding. Neither would 

a regulation defining ‘‘major purpose’’

that singled out 527 organizations, as 

the Shays II plaintiffs seek, obviate the 

need for case-by-case investigations and 

determinations in the Commission’s 

enforcement process regarding the 

organization’s major purpose. 

B. Section 527 Tax Status Does Not 

Determine Whether an Organization Is a 

Political Committee Under FECA 

527 organizations are so named for 

section 527 of the Internal Revenue 

Code, a section that exempts certain 

activities from taxation. An 

organization’s election of section 527 


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5598 Federal Register / Vol. 72, No. 25 / Wednesday, February 7, 2007 / Rules and Regulations 

7See Press Release, Federal Election Commission, 

FEC Collects $630,000 in Civil Penalties from Three 

527 Organizations (Dec. 13, 2006), available at 

http://www.fec.gov/press/press2006/ 

20061213murs.html; Press Release, Federal Election 

Commission, Freedom Inc. Pays $45,000 Penalty for 

Failing to Register as Political Committee (Dec. 20, 

2006), available at http://www.fec.gov/press/ 

tax status is not sufficient evidence in 

itself that the organization satisfies 

FECA and the Supreme Court’s 

contribution, expenditure, and major 

purpose requirements. As stated by a 

commenter, ‘‘All that 527 status means 

is that the organization is exempt from 

federal income tax to the extent it 

spends political income on political 

activities * * * All federal political 

committees registered with the FEC are 

527 organizations. So are the 

Republican National Committee and the 

Democratic National Committee. So are 

John Kerry for President, Inc. and BushCheney ’04, Inc. So is every candidate’s 

campaign committee right down to 

school board and dogcatcher.’’ Thus, 

virtually all political committees are 527 

organizations. It does not necessarily 

follow that all 527 organizations are or 

should be registered as political 

committees. 

The IRS’s requirements for an 

organization to be entitled to the tax 

exemption under section 527 are based 

on a different and broader set of criteria 

than the Commission’s determination of 

political committee status. See note 2 

above. Section 527 exempts political 

organizations from tax on ‘‘exempt 

function’’ income, where the Internal 

Revenue Code would impose tax on 

such activity when conducted by other 

non-profit organizations, such as groups 

organized under section 501(c)(4) (social 

welfare organizations), 501(c)(5) (labor 

organizations), and 501(c)(6) (business 

leagues). See 26 U.S.C. 527(c)(1) and 

(f)(1). Accordingly, the definition of 

‘‘exempt function’’ is central to the 

reach of section 527. ‘‘Exempt function’’

is defined as the ‘‘function of 

influencing or attempting to influence 

the selection, nomination, election, or 

appointment of any individual to any 

Federal, State, or local public office or 

office in a political organization, or the 

election of Presidential or VicePresidential electors.’’ 26 U.S.C. 

527(e)(2). 

By definition, 527 organizations may 

engage in a host of State, local, and nonelectoral activity well outside the 

Commission’s jurisdiction. As noted by 

several commenters, the broad range of 

groups availing themselves of the 527 

exemption include, but are not limited 

to the following: All Federal, State, and 

local candidate campaign committees 

and party entities; Federal, State, and 

local political action committees; 

caucuses and associations of State or 

local public officials; newsletter funds 

operated by Federal, State, and local 

public officials; funds set up to pay 

ordinary business expenses of a public 

officeholder; political party officer 

committees; and groups seeking to 

influence the appointment of judicial 

and executive branch officials. A 

forthcoming tax law article states: 

Once section 527 is placed in proper 

context, it becomes clear that the tax law is 

not a very good mechanism for differentiating 

between election-focused and ideological 

groups. Because of its unique policies and 

idiosyncrasies, the tax law has an 

exceptionally broad definition of ‘‘political 

organization,’’ one that has the potential to 

capture ideological as well as partisan 

organizations. Furthermore, section 527 

should not be understood to convey any real 

tax benefits to organizations that selfidentify. Accordingly, the reformers’ mission 

to use section 527 as a campaign finance 

instrument is misguided. 

Gregg D. Polsky, A Tax Lawyer’s 

Perspective on Section 527 

Organizations, 28 Cardozo L. Rev. 

(forthcoming Feb. 2007). 

The IRS has specifically determined 

that exempt function activity can 

include disbursements for Federal 

electoral activity that does not 

constitute express advocacy. IRS 

Revenue Ruling 2004–6 states (at 4): 

‘‘[w]hen an advocacy communication 

explicitly advocates the election or 

defeat of an individual to public office, 

the expenditure clearly is for an exempt 

function under [section] 527(e)(2). 

However, when an advocacy 

communication relating to a public 

policy issue does not explicitly advocate 

the election or defeat of a candidate, all 

the facts and circumstances need to be 

considered to determine whether the 

expenditure is for an exempt function 

under [section] 527(e)(2).’’ Rev. Rul. 04–

6, 2004–1 C.B. 328. Accordingly, the IRS 

structure presumes section 527 

organizations will engage in nonexpress advocacy activities. Indeed, 

organizations could easily qualify for 

527 status without ever making 

expenditures for express advocacy. 

However, as discussed above, that 

activity is outside of the Commission’s 

regulatory scope under Buckley’s 

express advocacy limitation for 

expenditures on communications made 

independently of a candidate. See 

Buckley, 424 U.S. at 44; see also 2 

U.S.C. 431(8) and (9) (defining 

contribution and expenditure as ‘‘for the 

purpose of influencing any election for 

Federal office’’). 

The IRS ‘‘facts and circumstances’’

test, if applied to FECA, clearly would 

violate the Supreme Court’s 

Constitutional parameters, established 

in Buckley, and reiterated in MCFL and 

McConnell, that campaign finance rules 

must avoid vagueness. See Buckley, 424 

U.S. at 40–41; MCFL, 479 U.S. at 248–

49; McConnell, 540 U.S. at 103. Because 

the tax code definitions arise in the 

context of a grant of exemption, which 

is viewed as a form of subsidy to the 

organization, a lower level of scrutiny is 

applied than when the government 

regulates or prohibits outright certain 

types of speech. See, e.g., Regan v. 

Taxation With Representation, 461 U.S. 

540, 549–50 (1983) (upholding 

limitation on lobbying by 501(c)(3) 

organizations); Christian Echoes Nat’l 

Ministry, Inc. v. United States, 470 F.2d 

849, 857 (10th Cir. 1972) (upholding 

501(c)(3) ban on campaign 

intervention). As one commenter noted: 

The Internal Revenue Code (IRC) and its 

accompanying regulations offer several 

different tests for what constitutes political 

activity for tax-exempt organizations 

(including 527 organizations), but all of these 

tests boil down to a vague ‘‘facts and 

circumstances’’ standard. While 

constitutionally adequate * * * for the 

enforcement of tax laws, the inherent 

uncertainty created by such a contextual, 

subjective standard renders it wholly 

inadequate to the task of providing a 

predictable standard for those required to 

comply with [F]ederal election law * * * 

FECA regulates core political speech and 

imposes criminal penalties for violations. 

Thus, FECA is especially intolerant of vague 

standards. As the court explained in Buckley: 

‘‘Due process requires that a criminal statute 

provide adequate notice to a person of 

ordinary intelligence that his contemplated 

conduct is illegal, for ‘no man shall be held 

criminally responsible for conduct which he 

could not reasonably understand to be 

proscribed.’ When First Amendment rights 

are involved, an even ‘greater degree of 

specificity’ is required.’’

As stated by a commenter, ‘‘While IRC 

political organizations and FECA 

political committees seem to have some 

similarities, [section] 527 ‘exempt 

function’ activity is much broader than 

the activity that defines FECA political 

committees. Consequently, IRS 

regulations provide no guidance for FEC 

rulemaking.’’ In fact, neither FECA, as 

amended, nor any judicial decision 

interpreting it, has substituted tax status 

for the conduct-based determination 

required for political committee status. 

As discussed further below in Part F, 

the Commission’s enforcement 

experience illustrates the inadequacy of 

tax classification as a measure of 

political committee status. The 

Commission recently completed six 

matters, including five organizations 

that were alleged to have failed to 

register as political committees.7 The 


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press2006/20061220mur.html; Press Release, 

Federal Election Commission, FEC Completes 

Action on Two Enforcement Cases (Dec. 22, 2006), 

available at http://www.fec.gov/press/press2006/ 

20061222mur.html. 

8 In Shays II, the case filed by Representatives 

Shays and Meehan was consolidated with a similar 

case filed by Bush-Cheney ’04 challenging the 

Commission’s 2004 rulemaking. See Shays II, 424 

F. Supp. 2d at 104–05. 

9See IRS Political Organization Disclosure 

database, available at http://forms.irs.gov/ 

politicalOrgsSearch/search/basicSearch.jsp. 

Commission reached conciliation 

agreements with five of these 

organizations—four 527 organizations 

and one 501(c)(4) organization—in 

which the organizations did not contest 

the Commission’s determination that 

they had violated FECA by failing to 

register as political committees. See 

Matters Under Review (‘‘MURs’’) 5511 

and 5525 (Swiftboat Veterans and POWs 

for Truth (‘‘Swiftboat Vets’’)); 5753 

(League of Conservation Voters 527 and 

527 II (‘‘League of Conservation 

Voters’’)); 5754 (MoveOn.org Voter 

Fund); 5492 (Freedom, Inc.). In the sixth 

matter, the Commission determined that 

a 527 organization was not a political 

committee under the statutory 

requirements, and dismissed the matter. 

See MUR 5751 (The Leadership Forum). 

The Commission has demonstrated 

through the finding of political 

committee status for a 501(c)(4) 

organization and the dismissal of a 

complaint against a 527 organization, 

that tax status did not establish whether 

an organization was required to register 

with the FEC. Rather, the Commission’s 

findings were based on a detailed 

examination of each organization’s 

contributions, expenditures, and major 

purpose, as required by FECA and the 

Supreme Court. 

Courts have cautioned the 

Commission against assuming ‘‘the 

compatibility of the IRS’s enforcement 

* * * and FECA’s requirements.’’ See 

Shays v. FEC, 337 F. Supp. 2d 28, 128 

(D.D.C. 2004) (‘‘Shays I’’). The 

Commission is instead obligated to 

perform a detailed review of differences 

in tax and campaign finance law 

provisions rather than adopting the 

former as a proxy for the latter. Id. The 

U.S. District Court recently reminded 

the Commission: ‘‘It is the FEC, not the 

IRS, that is charged with enforcing 

FECA.’’ Shays I, 337 F. Supp. 2d at 126. 

The detailed comparison of the Internal 

Revenue Code and FECA provisions 

required by Shays I demonstrates that 

the ‘‘exempt function’’ standard of 

section 527 is not co-extensive with the 

‘‘expenditure’’ and ‘‘contribution’’

definitions that trigger political 

committee status. Therefore, the use of 

the Internal Revenue Code classification 

to interpret and implement FECA is 

inappropriate. 

C. Congress Has Consistently Affirmed 

the Existing Statutory Framework and 

Specifically Refused To Require All 527 

Organizations To Register as Political 

Committees 

While Congress has repeatedly 

enacted legislation governing 527 

organizations, it has specifically rejected 

every effort, including those by some of 

the Shays II plaintiffs,8 to classify 

organizations as political committees 

based on section 527 status. In refusing 

to enact such legislation, Congress fully 

recognized that some 527 organizations 

not registered with the Commission 

were, and would continue to be, 

involved with Federal elections. 

Nevertheless, in each instance in which 

Congress regulated 527 organizations, 

whether through amendments to the 

Internal Revenue Code or FECA, it (a) 

Chose not to address the political 

committee status of these organizations, 

(b) left the reporting obligations in the 

hands of the IRS, and (c) did not direct 

the Commission to adopt revised 

regulations. 

1. Congress Amended the Internal 

Revenue Code To Create a Reporting 

Scheme for 527 Organizations That are 

Not Political Committees Under FECA 

In 2000, Congress passed a bill 

requiring section 527 organizations that 

are not required to register as political 

committees under FECA to register and 

report their financial activity with the 

IRS. See 26 U.S.C. 527(i)(6), (j)(5)(A); 

Public Law 106–230 (2000). Congress 

ordered the IRS to disclose this 

information publicly on a searchable 

database within 48 hours of receipt, 

requirements matching the FEC’s 

disclosure obligations. See 26 U.S.C. 

527(k); 2 U.S.C. 434(a)(11)(B) and 438a.9

At the same time, Congress considered, 

but rejected, alternative bills that would 

have explicitly required the 

Commission to regulate all 527 

organizations. See, e.g., H.R. 3688, 106th 

Cong. (2000); S. 2582, 106th Cong. 

(2000); see also H.R. Rep. No. 106–702 

(2000). The alternative House bill was 

co-sponsored by two of the Shays II 

plaintiffs. Additionally, Congress took 

no other action to otherwise alter the 

statutory framework for determining 

political committee status. 

In 2002, Congress modified the 

section 527 reporting requirements to 

exempt organizations that were 

exclusively involved in State and local 

elections from having to report with the 

IRS. See 26 U.S.C. 527(i)(5)(C), (j)(5)(C); 

Income Tax Notification and Return 

Requirements—Political Committees 

Act, Public Law 107–276, 116 Stat. 1929 

(2002). Those 527 organizations that 

were involved in Federal elections, but 

that did not qualify as ‘‘political 

committees’’ under FECA, continued to 

have to report their activities to the IRS. 

See Public Law 107–276. This 

legislation was passed only a few 

months after BCRA, which, as discussed 

below, did not change the requirements 

for political committee status of 527 

organizations. As stated by a 

commenter, ‘‘Congress explicitly 

recognized the differences in intent and 

scope between the Internal Revenue 

Code and the Federal Election 

Campaign Act when it drafted two 

separate statutes to address the 

respective subjects; if Congress had 

intended the two bodies of law to be 

congruous, Congress would have passed 

congruous provisions at the outset.’’ If, 

as some commenters suggested, all 527 

organizations not exclusively involved 

in State and local elections are required 

by FECA to register as political 

committees, then the 2002 amendments 

to 26 U.S.C. 527 would have meant that 

no 527 organizations would continue to 

report to the IRS. Such an interpretation 

of the two statutes would effectively 

nullify the statutory requirement to 

report to the IRS. 

These two provisions were passed, as 

noted by a commenter, ‘‘[a]gainst a 

widely publicized backdrop of news 

reports concerning non-federal [section] 

527 groups,’’ yet, ‘‘Congress required 

these organizations * * * to register 

and report with the IRS * * * Congress 

was well aware that [section] 527 

organizations that were not political 

committees could affect Federal as well 

as other elections.’’ The legislative 

history of the 2000 amendment confirms 

the commenter’s assessment: 

These enhanced disclosure and reporting 

rules are intended to make no changes to the 

present-law substantive rules regarding the 

extent to which tax-exempt organizations are 

permitted to engage in political activities. 

Thus, the Committee bill is not intended to 

alter the involvement of such organizations 

in the political process, but rather it is 

intended to shed sunlight on these activities 

so that the general public can be informed as 

to the types and extent of activities in which 

such organizations engage. 

H.R. Rep. No. 106–702, at 14 (2000). 

Senator Lieberman, a principal author of 

the legislation, stated, ‘‘nor does [the 

bill] force any group that does not 

currently have to comply with FECA or 

disclose information about itself to do 


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10As commenters noted, a 501(c)(4) organization 

may engage in the same political campaign 

activities as a 527 organization, as long as these 

activiteis do not constitute the 501(c)(4) 

organization’s ‘‘primary purpose’’ as determined by 

the IRS. 11Only 501(c)(4) organizations with $25,000 or 

more in annual gross receipts must file annual tax 

returns with the IRS. See 26 U.S.C. 6012(a)(6); 

Judith Kindell & John Francis Reilly, Election Year 

Issues: IRS Exempt Organizations Continuing 

Professional Education Text at 444, 470–71 (2002), 

available at http://www.irs.gov/charities/ 

nonprofits/article/0,,id=155031,00.html (last visited 

Jan. 31, 2007). The required annual return (Form 

990) includes a line for total amount of ‘‘direct and 

indirect political expenditures’’ without requiring 

any further breakdown of the expenditure amount. 

See IRS Form 990 Line 81a. Individual donors need 

not be disclosed by 501(c)(4) organizations. 

either of those things.’’ See Statement of 

Sen. Lieberman, 146 Cong. Rec. S5996 

(June 28, 2000). Representative Archer 

stated, ‘‘[T]his bill does nothing but 

require disclosure. It does not change 

anything as to how much money can be 

given or how it can be used, any of 

those other substantive things in the 

law.’’ See Statement of Rep. Archer, 146 

Cong. Rec. H5285 (June 27, 2000). 

A rule hinging on section 527 tax 

status could frustrate this separate 

reporting scheme created by Congress in 

the 2000 and 2002 amendments to 

section 527. It could also have the effect 

of reducing disclosure. If a rule singled 

out 527 organizations, those entities 

could then either shift the same 

election-related conduct to a related 

section 501(c)(4) organization that 

shares common management, or 

perhaps even reorganize as a section 

501(c)(4) organization in order to avoid 

a rule that singled out 527 

organizations.10 Several commenters 

predicted that 527 organizations would 

do so. Because section 501(c)(4) of the 

Internal Revenue Code requires almost 

no disclosure of receipts and 

disbursements, migration of political 

conduct to section 501(c)(4) groups 

would reduce the amount of 

information disclosed to the public.11

2. BCRA Amended FECA and 

Addressed Federal Activity of 527 

Organizations Without Requiring 

Political Committee Registration 

In BCRA, Congress directly addressed 

the Federal activity of unregistered 527 

organizations, but again, declined to 

take any other action to regulate 527 

organizations as political committees or 

otherwise alter the existing political 

committee framework. BCRA prohibits 

national, State and local political parties 

from soliciting for, or donating to ‘‘an 

organization described in section 527 of 

[the Internal Revenue] Code (other than 

a political committee, a State, district, or 

local committee of a political party, or 

the authorized campaign committee of a 

candidate for State or local office).’’ See 

2 U.S.C. 441i(d)(2) (emphasis added). 

This provision explicitly confirms 

Congress’s intent to retain separate 

regimes for those 527 organizations that 

must register with the Commission as 

political committees and those 527 

organizations that are not required to 

register as political committees. 

Furthermore, if Congress had believed 

that all 527 organizations (other than 

those operating at the State level) were 

political committees, this BCRA 

prohibition would be superfluous. 

BCRA also included a limited 

exception from the prohibition on 

corporations making electioneering 

communications for 527 organizations 

(and 501(c)(4) organizations), as long as 

they were funded exclusively from 

individual contributions. See 2 U.S.C. 

441b(c)(2). This exception was altered 

by the Wellstone amendment to BCRA, 

codified at 2 U.S.C. 441b(c)(6), which 

strictly limited the scope of the 

exception. Although the exception was 

amended, this provision illustrates 

Congress’s knowledge that 527 

organizations were raising funds outside 

FECA’s individual contribution limits 

and source prohibitions to produce 

communications that referenced Federal 

candidates. And BCRA makes two 

explicit determinations: electioneering 

communications are not themselves 

‘‘expenditures’’ (even when conducted 

by 527 organizations) and such 

communications may not be paid for 

with corporate or labor union funds 

during specific pre-election periods. 

Had Congress determined that such 

communications constituted 

expenditures that required registration 

as a political committee, the reporting 

requirements and funding restrictions 

for the electioneering communications 

provisions would have been duplicative 

and meaningless. Yet, Congress chose to 

leave in place its decisions in 2000 and 

2002 that some 527 organizations 

should report their activities to the IRS, 

rather than register with the FEC. 

BCRA’s legislative history further 

confirms Congress’s recognition that 527 

organizations (as well as 501(c)(4) 

organizations) could engage in some 

Federal campaign activity and yet not 

have to register as political committees. 

In defending BCRA’s approach to 527 

organizations, Senator Snowe stated: 

[S]ome of our opponents have said that we 

are simply opening the floodgates in allowing 

soft money to now be channeled through 

these independent groups for electioneering 

purposes. To that, I would say that this bill 

would prohibit members from directing 

money to these groups to affect elections, so 

that would cut out an entire avenue of 

solicitation for funds, not to mention any real 

or perceived ‘‘quid pro quo.’’

See Statement of Sen. Snowe, 148 Cong. 

Rec. S2136 (Mar. 20, 2002). Senator 

Wellstone noted that 527 and 501(c)(4) 

groups ‘‘already play a major role in our 

elections’’ and acknowledged that soft 

money would shift from political parties 

to these organizations. See Statement of 

Sen. Wellstone, 147 Cong. Rec. S2846–

47 (Mar. 26, 2001). Senator Breaux 

stated that 501(c)(4) and 527 

organizations would continue to be able 

to raise unrestricted money to be used 

in Federal elections. See Statement of 

Sen. Breaux, 147 Cong. Rec. S2885–86 

(Mar. 26, 2001). Senator McConnell, 

who led the opposition to the passage of 

BCRA, was clear on this point as well: 

‘‘this bill will greatly weaken the parties 

and shift those resources to outside 

groups that will continue to engage in 

issue advocacy, as they have a 

constitutional right to do, with 

unlimited and undisclosed soft money.’’

See Statement of Sen. McConnell, 148 

Cong. Rec. S2160 (Mar. 20, 2002). As 

stated in a comment from a Governor 

who is also a former Member of 

Congress: 

That perceived evil, the direct personal 

involvement of [F]ederal and party officials 

in the raising of ‘‘soft money’’ funds, is not 

present with respect to donations made to 

non-profit organizations—whether organized 

under section 527 or under section 501(c) of 

the Internal Revenue Code—acting 

independently from any [F]ederal 

officeholder, candidate or political party. 

Congress did not choose, in BCRA, to impose 

limits on those desiring to provide financial 

support to such non-profit organizations. 

Congress was well aware of the existence and 

activities of non-political committee 527 

organizations and yet the BCRA did not elect 

to address such organizations other than to 

impose a prohibition on [F]ederal 

officeholders actively participating in the 

solicitation of funds for such groups. 

Based on this history of Congressional 

action regarding section 527 and the 

enactment of BCRA, the Commission 

concludes that changing the regulatory 

definition of ‘‘political committee’’ to 

rely explicitly upon section 527 tax 

status would not be consistent with the 

Commission’s statutory authority. The 

Commission reaches this conclusion 

regarding the scope of its regulatory 

authority because Congress previously 

considered and rejected bills that would 

have changed the political committee 

status of 527 organizations. See FDA v. 

Brown & Williamson Tobacco Corp., 529 

U.S. 120, 143 (2000) (‘‘[A] specific 

policy embodied in a later federal 

statute should control our construction 

of the [earlier] statute, even though it 

ha[s] not been expressly amended.’’


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12The Commission also received a comment 

signed by 14 members of the Congressional 

Hispanic Caucus who opposed the proposed 

changes to the regulations based on possible 

adverse effects on grassroots voter mobilization 

efforts. This comment is available at http:// 

www.fec.gov/pdf/nprm/political_comm_status/ 

mailed/57.pdf. 

(quoting United States v. Estate of 

Romani, 523 U.S. 517, 530–31 (1998))). 

Furthermore, when Congress revises a 

statute, its decision to leave certain 

sections unamended constitutes at least 

acceptance, if not explicit endorsement, 

of the preexisting construction and 

application of the unamended terms. 

See Cook County, Illinois v. United 

States ex rel. Chandler, 538 U.S. 119, 

132 (2003); Cottage Sav. Ass’n v. 

Comm’r, 499 U.S. 554, 561–62 (1991); 

Asarco Inc. v. Kadish, 490 U.S. 605, 632 

(1989). 

During the 2004 rulemaking, the 

Commission received a comment signed 

by 138 Members of the House of 

Representatives, and a similar comment 

signed by 19 Senators. Both comments 

stated, ‘‘the proposed rules before the 

Commission would expand the reach of 

BCRA’s limitations to independent 

organizations in a manner wholly 

unsupported by BCRA or the record of 

our deliberations on the new law.’’ The 

comment submitted by the House 

Members further stated: 

More generally, the rulemaking is 

concerned with new restrictions on ‘‘527’’

organizations, primarily through the 

adoption of new definitions of an 

‘‘expenditure.’’ Congress, of course, did not 

amend in BCRA the definition of 

‘‘expenditure’’ or, for that matter, the 

definition of ‘‘political committee.’’

Moreover, while BCRA reflects Congress’ full 

awareness of the nature and activities of 

‘‘527s,’’ it did not consider comprehensive 

restrictions on these organizations like those 

in the proposed rules. There has been 

absolutely no case made to Congress, or 

record established by the Commission, to 

support any notion that tax-exempt 

organizations and other independent groups 

threaten the legitimacy of our government 

when criticizing its policies. We believe 

instead that more, not less, political activity 

by ordinary citizens and the associations they 

form is needed in our country.12

In upholding BCRA, the Supreme 

Court was also well aware that BCRA’s 

new provisions would not reach all 

interest group Federal political activity. 

The McConnell Court observed that, 

unlike political parties, ‘‘[i]nterest 

groups, however, remain free to raise 

soft money to fund voter registration, 

[get-out-the-vote] activities, mailings, 

and broadcast advertising (other than 

electioneering communications).’’

McConnell, 540 U.S. at 187–88. 

Finally, at least two new bills 

requiring 527 organizations to register as 

political committees were recently 

considered in Congress. See, e.g., H.R. 

513, 109th Cong. (2006); S. 2828, 108th 

Cong. (2004). The introduction and 

consideration of these bills, including 

one supported by two of the Shays II 

plaintiffs, demonstrates Congress’s and 

these plaintiffs’ recognition that 

Congress has not acted in this area. As 

with all past Congressional attempts to 

regulate all 527s as political committees, 

Congress did not adopt these bills, or 

any other bills altering the political 

committee framework. While the 

Commission is authorized to regulate in 

order to give substance to otherwise 

ambiguous provisions, ‘‘[a] regulation, 

however, may not serve to amend a 

statute, or to add to the statue something 

which is not there.’’ See Iglesias v. 

United States, 848 F.2d 362, 366 (2d Cir. 

1988) (citations omitted). 

Thus, Congressional action regarding 

527 organizations provides no basis for 

the Commission to revise FECA and the 

Supreme Court’s requirements for 

political committee status by creating a 

separate political committee definition 

singling out 527 organizations. Rather, 

the Commission’s decision to reject 

proposed rules based on section 527 tax 

status is consistent with all past 

Congressional action addressing 527 

organizations. 

D. Applying the Major Purpose Doctrine, 

a Judicial Construct Established Thirty 

Years Ago, Requires a Case-by-Case 

Analysis of an Organization’s Conduct 

The Shays II court expressed concern 

that, in the absence of a regulation 

regarding the major purpose doctrine, 

the Commission was not providing clear 

guidance to groups as to when they 

must register as a political committee. 

See Shays II, 424 F. Supp. 2d at 115. 

Applying the major purpose doctrine, 

however, requires the flexibility of a 

case-by-case analysis of an 

organization’s conduct that is 

incompatible with a one-size-fits-all 

rule. 

The Supreme Court has held that, to 

avoid the regulation of activity 

‘‘encompassing both issue discussion 

and advocacy of a political result’’ only 

organizations whose major purpose is 

Federal campaign activity can be 

considered political committees under 

the Act. See, e.g., Buckley, 424 U.S. at 

79; MCFL, 479 U.S. at 262. Thus, the 

major purpose test serves as an 

additional hurdle to establishing 

political committee status. Not only 

must the organization have raised or 

spent $1,000 in contributions or 

expenditures, but it must additionally 

have the major purpose of engaging in 

Federal campaign activity. 

The Supreme Court has made it clear 

that an organization can satisfy the 

major purpose doctrine through 

sufficiently extensive spending on 

Federal campaign activity. See MCFL, 

479 U.S. at 262 (explaining that a 

section 501(c)(4) organization could 

become a political committee required 

to register with the Commission if its 

‘‘independent spending become[s] so 

extensive that the organization’s major 

purpose may be regarded as campaign 

activity’’). 

An analysis of public statements can 

also be instructive in determining an 

organization’s purpose. See, e.g., FEC v. 

Malenick, 310 F. Supp. 2d 230, 234–36 

(D.D.C. 2004) (court found organization 

evidenced its major purpose through its 

own materials which stated the 

organization’s main goal of supporting 

the election of the Republican Party 

candidates for Federal office and 

through efforts to get prospective donors 

to consider supporting Federal 

candidates); FEC v. GOPAC, Inc., 917 F. 

Supp. 851, 859 (D.D.C. 1996) 

(‘‘organization’s [major] purpose may be 

evidenced by its public statements of its 

purpose or by other means’’); Advisory 

Opinion 2006–20 (Unity 08) 

(organization evidenced its major 

purpose through organizational 

statements of purpose on Web site). 

Because such statements may not be 

inherently conclusive, the Commission 

must evaluate the statements of the 

organization in a fact-intensive inquiry 

giving due weight to the form and 

nature of the statements, as well as the 

speaker’s position within the 

organization. 

The Federal courts’ interpretation of 

the constitutionally mandated major 

purpose doctrine requires the 

Commission to conduct investigations 

into the conduct of specific 

organizations that may reach well 

beyond publicly available 

advertisements. See, e.g., Malenick, 310 

F. Supp. 2d at 234–36 (examining 

organizations’ materials distributed to 

prospective donors). The Commission 

may need to examine statements by the 

organization that characterize its 

activities and purposes. The 

Commission may also need to evaluate 

the organization’s spending on Federal 

campaign activity, as well as any other 

spending by the organization. In 

addition, the Commission may need to 

examine the organization’s fundraising 

appeals. 

Because Buckley and MCFL make 

clear that the major purpose doctrine 

requires a fact-intensive analysis of a 

group’s campaign activities compared to 

its activities unrelated to campaigns, 

any rule must permit the Commission 


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13Many prominent 527 organizations in 2004 

were registered political committees with Federal 

and non-Federal accounts. A new rule addressing 

major purpose would not have required these 

organizations to change their structures. The more 

relevant questions for these organizations was 

whether particular expenses could lawfully be paid 

with non-Federal funds from a non-Federal 

account, which was sometimes a connected 527 

organization not registered with the Commission, 

and whether non-Federal funds could be raised 

through solicitations that referred to clearly 

identified Federal candidates. New section 100.57 

and revised section 106.6, as discussed below in 

Part E, address these questions. 

14As described in Part F, below, the Commission 

has resolved several enforcement matters that 

involve 527 organizations alleged to have 

unlawfully failed to register as political committees. 

The Commission further notes that it has concluded 

action on the vast majority of the 2004-cycle cases 

on its docket and posted record enforcement figures 

in 2006. See Press Release, Federal Election 

Commission, FEC Posts Record Year, Collecting 

$6.2 Million in Civil Penalties, available at http:// 

www.fec.gov/press/press2006/ 

20061228summary.htmlprocess. 

the flexibility to apply the doctrine to a 

particular organization’s conduct. After 

considering these precedents and the 

rulemaking record, the Commission 

concluded that none of the competing 

proposed rules would have accorded the 

Commission the flexibility needed to 

apply the major purpose doctrine 

appropriately. Therefore, the 

Commission decided not to adopt any of 

the proposed amendments to section 

100.5.13

However, even if the Commission 

were to adopt a regulation encapsulating 

the judicially created major purpose 

doctrine, that regulation could only 

serve to limit, rather than to define or 

expand, the number or type of 

organizations regarded as political 

committees. The major purpose doctrine 

did not supplant the statutory 

‘‘contribution’’ and ‘‘expenditure’’

triggers for political committee status, 

rather it operates to limit the reach of 

the statute in certain circumstances. 

Moreover, any perceived 

shortcomings with the enforcement 

process identified by the Shays II court 

would not be remedied by a change in 

the regulatory definition of ‘‘political 

committee.’’ 14 Any revised rule adopted 

by the Commission would still have to 

be interpreted and applied through the 

very same statutory enforcement 

procedures as currently exist. In fact, all 

of the rules proposed in 2004 would 

have required that factual 

determinations be made through the 

enforcement process. See, e.g., proposed 

11 CFR 100.5(a)(2)(iv), Notice of 

Proposed Rulemaking on Political 

Committee Status, 69 FR 11736, 11748, 

11757 (Mar. 11, 2004) (exemptions 

limited to 527 organizations that are 

formed ‘‘solely for the purpose of’’

supporting a non-Federal candidate or 

influencing selection of individuals to 

non-elective office). Even if the 

Commission had simply adopted a rule 

in 2004 that listed the factors 

considered in determining an 

organization’s major purpose, the rule 

would still have had to be enforced 

through investigations of the specific 

statements, solicitations, and other 

conduct by particular organizations. 

Furthermore, any list of factors 

developed by the Commission would 

not likely be exhaustive in any event, as 

evidenced by the multitude of fact 

patterns at issue in the Commission’s 

enforcement matters considering the 

political committee status of various 

entities (‘‘Political Committee Status 

Matters’’). See, e.g., MURs 5511 and 

5525 (Swiftboat Vets); 5753 (League of 

Conservation Voters); 5754 (MoveOn.org 

Voter Fund); 5492 (Freedom, Inc.); 5751 

(Leadership Forum). 

E. The 2004 Final Rules Clarify and 

Strengthen the Political Committee 

Determination Consistent With the 

FECA and Supreme Court Framework 

To best ensure that organizations that 

participate in Federal elections use 

funds compliant with the Act’s 

restrictions, the Commission decided in 

the 2004 rulemaking to adopt two broad 

anti-circumvention measures. The first 

expands the regulatory definition of 

‘‘contribution’’ to capture funds 

solicited for the specific purpose of 

supporting or opposing the election of a 

Federal candidate. See 11 CFR 100.57. 

An organization that receives more than 

$1,000 of such funds is required to 

register as a political committee. The 

second rule places limits on the nonFederal funds a registered political 

committee may use to engage in certain 

activity, such as voter drives and 

campaign advertisements, which has a 

clear Federal component. See 11 CFR 

106.6. The combined effect of these two 

rules significantly curbs the raising and 

spending of non-Federal funds in 

connection with Federal elections, in a 

manner wholly consistent with the 

existing political committee framework. 

The effect of these changes on 527 

organizations has already been 

remarked. See Paul Kane, ‘‘Liberal 527s 

Find Shortfall,’’ Roll Call (Sept. 25, 

2006) (‘‘a change in FEC regulations 

curtailed a huge chunk of 527 money 

because, after the 2004 elections, the 

commission issued a ruling that said all 

get-out-the-vote efforts in Congressional 

races had to be financed with at least 50 

percent federal donations, those 

contributions that are limited to $5000 

per year to political action 

committees’’). 

1. The Commission Adopted a New 

Regulation That Requires Organizations 

To Register as Political Committees 

Based on Their Solicitations 

While Supreme Court precedent 

places strict parameters on the breadth 

of the definition of expenditure, 

Supreme Court precedent provides 

greater deference to contribution 

restrictions. See FEC v. Beaumont, 539 

U.S. 146, 161 (U.S. 2003) (upholding the 

constitutionality of FECA’s corporate 

contribution prohibition as applied to a 

non-profit advocacy corporation and 

noting: ‘‘Going back to Buckley, 

restrictions on political contributions 

have been treated as merely ‘marginal’

speech restrictions subject to relatively 

complaisant review under the First 

Amendment, because contributions lie 

closer to the edges than to the core of 

political expression.’’) (citations 

omitted). Other judicial precedent 

specifically permits a broader 

interpretation of when an organization 

has solicited contributions. In FEC v. 

Survival Educ. Fund, Inc., 65 F.3d 285 

(2d Cir. 1995) (‘‘SEF’’), the appellate 

court held that a mailer solicited 

‘‘contributions’’ under FECA when it 

left ‘‘ no doubt that the funds 

contributed would be used to advocate 

President Reagan’s defeat at the polls, 

not simply to criticize his policies 

during the election year.’’ Id. at 295. The 

Commission’s new rule at 11 CFR 

100.57 codifies the SEF analysis. 

Section 100.57(a) states that if a 

solicitation ‘‘indicates that any portion 

of the funds received will be used to 

support or oppose the election of a 

clearly identified Federal candidate,’’

then all money received in response to 

that solicitation must be treated as a 

‘‘contribution’’ under FECA. See 2004 

Final Rules, 69 FR at 68057–58. 

When an organization receives $1,000 

or more in contributions, including 

those that are defined under new 

section 100.57(a), the organization will 

meet the statutory definition of a 

‘‘political committee.’’ An organization 

that triggers political committee status 

through the receipt of such 

contributions is required to register the 

committee with the Commission, report 

all receipts and disbursements, and 

abide by the contribution limitations 

and source prohibitions. 

Thus, section 100.57 codifies a clear, 

practical, and effective means of 

determining whether an entity, 

regardless of tax status, is participating 

in activity designed to influence Federal 

elections, and, therefore, may be 

required to register as a political 

committee. 


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15Material related to this litigation can be found 

at http://www.fec.gov/law/ 

litigation_related.shtml#emilyslist_dc. 

16 Documents related to these and other 

Commission MURs cited in this Explanation and 

Justification are available at http://eqs.nictusa.com/ 

eqs/searcheqs. 

In addition, the new regulation 

contains a prophylactic measure at 

section 100.57(b) to prevent 

circumvention of the solicitation rule by 

registered political committees 

operating both Federal and non-Federal 

accounts under the Commission’s 

allocation rules. Section 100.57(b) 

requires that at least 50%, and as much 

as 100%, of the funds received in 

response to a solicitation satisfying the 

requirements of section 100.57(a) be 

treated as FECA contributions, 

regardless of references to other 

intended uses for the funds received. 

See 11 CFR 100.57(b)(1) and (2); 2004 

Final Rules, 69 FR at 68058–59. 

Therefore, section 100.57(b) prevents a 

political committee from adding 

references to non-Federal candidates or 

political parties to its solicitation 

materials in order to claim that most or 

all of the funds received are for nonFederal purposes, and therefore, not 

‘‘contributions’’ under FECA. The 

regulation has the additional advantage 

of prohibiting registered political 

committees from raising donations not 

subject to the limitations from 

individual contributors or from 

prohibited sources using solicitation 

materials that focus on influencing the 

election of Federal candidates. 

Moreover, the costs of these 

solicitations must be paid for with a 

corresponding proportion of Federal 

funds. For example, if 100% of the 

funds received from a solicitation would 

be treated as contributions under 

section 100.57(b)(1), then 100% of the 

costs of that solicitation must be paid 

with Federal funds. See 11 CFR 

100.57(b); 11 CFR 106.1(a)(1); 11 CFR 

106.6(d)(1); 11 CFR 106.7(d)(4). 

In sum, section 100.57 codifies a 

broad method of establishing political 

committee status with strong anticircumvention protections, providing 

clear guidance to the regulated 

community that any organization, 

regardless of tax status, may be required 

to register as a political committee based 

on its solicitations. 

2. The Commission Adopted AntiCircumvention Measures Requiring That 

Campaign Ads and Voter Turn Out 

Efforts be Paid for With at Least 50% 

Federal Funds and as Much as 100% 

Federal Funds 

The 2004 Final Rules also include a 

comprehensive overhaul of the 

Commission’s allocation regulations, 

which govern how corporate and labor 

organization PACs and nonconnected 

committees split the costs of Federal 

and non-Federal activities such as 

campaign ads and voter turnout efforts. 

See 11 CFR 106.6. Under Commission 

regulations, a registered political 

committee that participates in both 

Federal and non-Federal elections is 

permitted to maintain both Federal and 

non-Federal accounts, containing funds 

that comply, respectively, with Federal 

and State restrictions. See 11 CFR 

102.5(a). 

Because many activities that an 

organization may undertake will have 

both a Federal and non-Federal 

component (such as a voter drive where 

both the Federal candidate and the nonFederal candidate are appearing on the 

ballot), previous Commission 

regulations had permitted the 

committee to develop an allocation 

percentage based on a ratio of Federal 

expenditure to Federal and non-Federal 

disbursements. This allocation 

percentage would govern how payments 

for all activity of the organization would 

be split between the two accounts. 

Several commenters claimed that 

some registered political committees 

were relying on these former allocation 

rules to pay for Federal campaign ads 

and voter turnout efforts that could 

influence the 2004 Federal elections 

almost entirely with non-Federal funds. 

BCRA’s Congressional sponsors, 

including two of the Shays II plaintiffs, 

argued that the previous allocation 

requirements ‘‘allow[ed] for absurd 

results’’ and that ‘‘[t]he Commission 

must revise its allocation rules to 

require a significant minimum hard 

money share for spending on voter 

mobilization in a federal election year.’’

Several campaign finance reform 

groups, including counsel to two of the 

Shays II amici, urged the Commission to 

curb these perceived abuses. At the 

time, they stated it was ‘‘essential for 

the Commission to take this action as 

part of the [2004] rulemaking process.’’

The 2004 Final Rules directly resolve 

these concerns by establishing strict 

new Federal funding requirements for 

registered political committees, as well 

as for entities that conduct activity 

through both registered Federal 

accounts and unregistered non-Federal 

accounts. The new rules require these 

groups to: (a) Use a minimum of 50% 

Federal funds to pay for get-out-the-vote 

drives that do not mention a specific 

candidate, as well as public 

communications that refer to a political 

party without referring to any specific 

candidates, and administrative costs; (b) 

use 100% Federal funds to pay for 

public communications or voter drives 

that refer to one or more Federal 

candidates, but no non-Federal 

candidates; and (c) for public 

communications or voter drives that 

refer to both Federal and non-Federal 

candidates, use a ratio of Federal and 

non-Federal funds based on the time 

and space devoted to each Federal 

candidate as compared to the total space 

devoted to all candidates. See 11 CFR 

106.6(c); 2004 Final Rules, 69 FR at 

68061–63; 11 CFR 106.6(f). Notably, the 

Commission’s new allocation and 

contribution regulations are the subject 

of pending litigation, where the 

Commission is charged not with being 

too lenient, but being too restrictive. See 

EMILY’s List v. FEC (Civil No. 05–0049 

(CKK)) (D.D.C. summary judgment 

briefing completed July 18, 2005).15

An additional change to the 

regulation will also significantly shift 

political committees towards a greater 

use of Federal funds. The new 

regulations require an organization to 

pay at least 50% of its administrative 

costs with funds from the Federal 

account. This regulatory adjustment will 

curtail longstanding complaints that the 

Commission’s allocation regulations 

have permitted non-Federal funds to 

substantially subsidize the overhead 

and day-to-day operations of the 

organization’s Federal activity. 

The revisions to section 106.6 prevent 

registered political committees from 

fully funding campaign advertisements 

and voter drives primarily designed to 

benefit Federal candidates with nonFederal funds simply by making a 

passing reference to a non-Federal 

candidate. 

F. Since the 2004 Rulemaking, the 

Commission’s Enforcement Actions 

Demonstrate the Application and 

Sufficiency of the FECA Political 

Committee Framework, and Provide 

Considerable Guidance Addressing 

When Groups Must Register as Political 

Committees 

The Commission has applied FECA’s 

definition of ‘‘political committee,’’

together with the major purpose 

doctrine, in the recent resolution of a 

number of administrative enforcement 

Matters involving 527 organizations and 

other groups. See MURs 5511 and 5525 

(Swiftboat Vets); 5753 (League of 

Conservation Voters); 5754 (MoveOn.org 

Voter Fund); 5751 (The Leadership 

Forum); 5492 (Freedom, Inc.).16 In each 

of these Political Committee Status 

Matters, the Commission conducted a 

thorough investigation of all aspects of 

the organization’s statements and 

activities to determine first if the 

organization exceeded the $1,000 


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17 In these Matters, the Commission used its 

enforcement process to develop the factual record 

of what advertisements the organizations ran, when 

and where they ran, and how much they cost, and 

to reach the legal conclusions of whether the 

regulatory standards were satisfied. Thus, even 

when the Commission codifies a legal standard in 

its regulations, the enforcement process is the 

vehicle for determining how that legal standard 

should be applied in a particular case. 

18Under 11 CFR 100.22(a), a communication 

contains express advocacy when it uses phrases 

such as ‘‘vote for the President,’’ ‘‘re-elect your 

Congressman,’’ or ‘‘Smith for Congress,’’ or uses 

campaign slogans or words that in context have no 

other reasonable meaning than to urge the election 

or defeat of one or more clearly identified 

candidates, such as posters, bumper stickers, or 

advertisements that say, ‘‘Nixon’s the One,’’ ‘‘Carter 

’76,’’ ‘‘Reagan/Bush,’’ or ‘‘Mondale!’’. 

19 11 CFR 100.22(b). The Commission also 

recently resolved another administrative action 

based on a determination that a 501(c)(4) 

organization’s communications satisfied the 

‘‘express advocacy’’ definition in section 100.22(b). 

See MUR 5634 (Sierra Club, Inc.). 

20See MUR 5511 Conciliation Agreement, at 

paragraphs 23–28. 

21See MUR 5753 Conciliation Agreement, at 8–

9. 

22See MUR 5511 Conciliation Agreement, at 

paragraphs 18–21. 

statutory and regulatory threshold for 

expenditures or contributions in 2 

U.S.C. 431(4)(A) and 11 CFR 100.5(a), 

and then whether the organization’s 

major purpose was Federal campaign 

activity. The settlements in the Political 

Committee Status Matters are significant 

because they are the first major cases 

after the Supreme Court’s decision in 

McConnell to consider the reach of the 

definition of ‘‘express advocacy’’ when 

evaluating an organization’s 

disbursements for communications 

made independently of a candidate to 

determine if the expenditure threshold 

has been met. They are also significant 

because they demonstrate that an 

organization may satisfy the political 

committee status threshold based on 

how the organization raises funds, and 

that the Commission examines 

fundraising appeals based on the plain 

meaning of the solicitation, not the 

presence or absence of specific words or 

phrases. Finally, the Political 

Committee Status Matters illustrate well 

the Commission’s application of the 

major purpose doctrine to the conduct 

of particular organizations. 

As discussed in detail below, in these 

and other matters, the Commission 

provides guidance to organizations 

about both the expenditure and the 

contribution paths to political 

committee status under FECA, as well 

as the major purpose doctrine. Any 

organization can look to the public files 

for the Political Committee Status 

Matters and other closed enforcement 

matters, as well as advisory opinions 

and filings in civil enforcement cases, 

for guidance as to how the Commission 

has applied the statutory definition of 

‘‘political committee’’ together with the 

major purpose doctrine. The public 

documents available regarding the 527 

settlements in particular provide more 

than mere clarification of legal 

principle; they provide numerous 

examples of actual fundraising 

solicitations, advertisements, and other 

communications that will trigger 

political committee status. These 

documents should guide organizations 

in the future as they formulate plans 

and evaluate their own conduct so they 

may determine whether they must 

register and report with the Commission 

as political committees. To the extent 

uncertainty existed, these 527 

settlements reduce any claim of 

uncertainty because concrete factual 

examples of the Commission’s political 

committee status analysis are now part 

of the public record. 

1. The Expenditure Path to Political 

Committee Status 

In the Swiftboat Vets and League of 

Conservation Voters Matters, the 

Commission analyzed whether the 

organizations’ advertising, voter drives 

and other communications ‘‘expressly 

advocated’’ the election or defeat of a 

clearly identified Federal candidate 

under the two definitions of that term in 

11 CFR 100.22.17 The Commission 

applied a test for express advocacy that 

is not only limited to the so-called 

‘‘magic words’’ such as ‘‘vote for’’ or 

‘‘vote against,’’18 but also includes 

communications containing an 

‘‘electoral portion’’ that is 

‘‘unmistakable, unambiguous, and 

suggestive of only one meaning’’ and 

about which ‘‘reasonable minds could 

not differ as to whether it encourages 

actions to elect or defeat’’ a candidate 

when taken as a whole and with limited 

reference to external events, such as the 

proximity to the election.19 The 

Commission was able to apply the 

alternative test set forth in 11 CFR 

100.22(b) free of constitutional doubt 

based on McConnell’s statement that a 

‘‘magic words’’ test was not 

constitutionally required, as certain 

Federal courts had previously held. 

Express advocacy also includes 

exhortations ‘‘to campaign for, or 

contribute to, a clearly identified 

candidate.’’ FEC v. Christian Coalition, 

52 F. Supp. 2d 45, 62 (D.D.C. 1999) 

(explaining why Buckley, 424 U.S. at 44 

n.52, included the word ‘‘support,’’ in 

addition to ‘‘vote for’’ or ‘‘elect,’’ in its 

list of examples of express advocacy 

communication). Thus, if the 

organization spent more than $1,000 on 

a communication meeting either test for 

express advocacy, then the statutory 

threshold of expenditures was met. 

The Commission determined that 

Swiftboat Vets met the threshold for 

‘‘expenditures’’ because it spent over 

$1,000 for fundraising communications 

that ‘‘expressly advocated’’ the election 

or defeat of a clearly identified Federal 

candidate under 11 CFR 100.22(a). In 

addition, Swiftboat Vets spent over 

$1,000 for television advertisements, 

direct mailings and a newspaper 

advertisement that contained express 

advocacy under 11 CFR 100.22(b).20

The Commission also determined that 

two League of Conservation Voter 527 

organizations met the expenditure 

threshold because they spent more than 

$1,000 on door-to-door canvassing and 

telephone banks where the scripts and 

talking points for canvassers and callers 

expressly advocated the defeat of a 

Federal candidate under 11 CFR 

100.22(a). In addition, the League of 

Conservation Voters 527s spent more 

than $1,000 for a mailer expressly 

advocating a Federal candidate’s 

election under both definitions in 11 

CFR 100.22(a) and (b).21

2. The Contribution Path to Political 

Committee Status 

With regard to the $1,000 threshold 

for ‘‘contributions,’’ the Commission 

examined fundraising appeals from each 

organization in the Swiftboat Vets, 

League of Conservation Voters and 

MoveOn.org Voter Fund matters and 

determined that if any of the 

solicitations clearly indicated that the 

funds received would be used to 

support or defeat a Federal candidate, 

then the funds received were given ‘‘for 

the purpose of influencing’’ a Federal 

election and therefore constituted 

‘‘contributions’’ under FECA. See SEF. 

The Commission examined the entirety 

of the solicitations and did not limit its 

analysis to the presence or absence of 

any particular words or phrases. If any 

solicitations meeting the test set forth in 

SEF resulted in more than $1,000 

received by the organization, then the 

statutory threshold for contributions 

was met. 

Swiftboat Vets received more than 

$1,000 in response to several e-mail and 

Internet fundraising appeals and a direct 

mail solicitation clearly indicating that 

the funds received would be used to the 

defeat of a Federal candidate, which 

meant these funds were ‘‘contributions’’

under FECA.22 Similarly, the League of 


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23See MUR 5753 Conciliation Agreement, at 5–

7. 

24See MUR 5754 Conciliation Agreement, at 5–

8. 

25See MUR 5511 Conciliation Agreement, at 

paragraphs 31–36. 

26See MUR 5753 Conciliation Agreement, at 9–

10. 

27See MUR 5754 Conciliation Agreement, at 8, 

and Factual & Legal Analysis, at 11–13 (Aug. 9, 

2006). 

28Complaint available at http://www.fec.gov/law/ 

litigation/club_for_growth_complaint.pdf. 

Conservation Voters 527s each received 

more than $1,000 in response to mailed 

solicitations, telephone calls, and 

personal meetings with contributors 

where the organizations clearly 

indicated that the funds received would 

be used to defeat a Federal candidate, 

which also meant these funds were 

‘‘contributions’’ under FECA.23 Finally, 

MoveOn.org Voter Fund received more 

than $1,000 in response to specific 

fundraising e-mail messages that clearly 

indicated the funds received would be 

used to defeat a Presidential candidate, 

which constituted ‘‘contributions’’

under FECA.24

3. Application of the Major Purpose 

Doctrine 

After determining that each 

organization in the Swiftboat Vets, 

League of Conservation Voters, and 

MoveOn.org Voter Fund matters had 

met the threshold for contributions or 

expenditures in FECA and Commission 

regulations, the Commission then 

investigated whether each 

organization’s major purpose was 

Federal campaign activity. The 

Commission examined each 

organization’s fundraising solicitations, 

the sources of its contributions, and the 

amounts received. The Commission 

considered public statements as well as 

internal documents about an 

organization’s mission. Each 

organization’s full range of campaign 

activities was evaluated, including 

whether the organization engaged in any 

activities that were not campaign 

related. 

Recently resolved matters reflect the 

comprehensive analysis required to 

determine an organization’s major 

purpose. Swiftboat Vets’ major purpose 

was campaign activity, as evidenced by: 

(1) Statements made to prospective 

donors detailing the organization’s 

goals; (2) public statements on the 

organization’s Web site; (3) statements 

in a letter from the organization’s 

Chairman thanking a large contributor; 

(4) statements by a member of the 

organization’s Steering Committee on a 

news program; and (5) statements in 

various fundraising solicitations. The 

organization’s activities also evidenced 

its major purpose as over 91% of its 

reported disbursements were spent on 

advertisements directed to Presidential 

battleground States and direct mail 

attacking or expressly advocating the 

defeat of a Presidential candidate, and 

the organization has effectively ceased 

active operations after the November 

2004 election.25

The League of Conservation Voters 

527s’ major purpose was campaign 

activity as demonstrated through: (1) 

Statements made in the organizations’

solicitations; (2) statements in 

organizational planning documents, 

such as a ‘‘National Electoral Strategic 

Plan 2004’’; (3) public statements 

endorsing Federal candidates; and (4) 

statements in letters from the 

organizations’ President describing the 

organizations’ activities. The 

organizations’ budget also evidenced its 

major purpose of campaign activity 

because 50–75% of the political budget 

for the organizations was intended for 

the Presidential election.26

MoveOn.org Voter Fund’s major 

purpose was campaign activity as 

evidenced by statements regarding its 

objectives in e-mail solicitations. 

MoveOn.org Voter Fund’s activities also 

demonstrated its major purpose of 

campaign activity. MoveOn.org Voter 

Fund spent over 68% of its total 2004 

disbursements on television advertising 

opposing a Federal candidate in 

Presidential battleground states; the 

only other disbursements from 

MoveOn.org Voter Fund in 2004 were 

for fundraising, administrative 

expenses, and grants to other political 

organizations. MoveOn.org Voter Fund 

spent nothing on State or local 

elections. Lastly, MoveOn.org Voter 

Fund has effectively ceased active 

operations after the November 2004 

election.27

527 organizations are not the only 

groups whose major purpose is Federal 

campaign activity. The Commission 

recently conciliated a MUR with a 

501(c)(4) organization, Freedom Inc., 

which had failed to register and report 

as a political committee despite 

conducting Federal campaign activity 

during the 2004 election cycle. See 

MUR 5492. Freedom Inc. made more 

than $1,000 in expenditures for 

communications that expressly 

advocated a Federal candidate’s election 

under section 100.22(a), and it conceded 

that its major purpose was campaign 

activity. 

4. Other FEC Actions 

In addition to the Political Committee 

Status Matters discussed above, the 

Commission filed suit against another 

527 organization, the Club for Growth, 

Inc. (‘‘CFG’’), for failing to register and 

report as a political committee in 

violation of FECA. See FEC v. Club for 

Growth, Inc., Civ. No. 05–1851 (RMU) 

(D.D.C. Compl. pending).28 The 

Commission’s complaint against CFG 

provides further guidance to 

organizations regarding the 

prerequisites of political committee 

status. 

The complaint shows that CFG made 

expenditures for candidate research, 

polling, and advertising, including 

advertising that expressly advocates the 

election or defeat of clearly identified 

candidates. (Compl. at 10–11). 

Additionally, CFG made solicitations 

indicating that funds provided would be 

used to support or oppose specific 

candidates, which means the funds 

received were contributions under 

FECA. (Id., at 8–9). Finally, the 

complaint reflects an extensive 

examination of the organization, 

resulting in a determination that the 

major purpose of the organization was 

to influence Federal elections (id., at 

12), including evidence such as: CFG’s 

statement of purpose in the registration 

statement submitted to the Internal 

Revenue Service (id., at 6); other public 

statements indicating CFG’S purpose is 

influencing Federal elections (id., at 6–

7); CFG’s use of solicitations that make 

clear that contributions will be used to 

support or oppose the election of 

specific Federal candidates (id., at 8–9); 

other spending by CFG for public 

communications mentioning Federal 

candidates (id., at 10–11); and the 

absence of any spending by CFG on 

State or local races (id., at 10). 

Just as findings of violations inform 

organizations as to what kinds of 

activities will compel registration as a 

Federal political committee, a 

Commission finding that there has been 

no violation clarifies those activities 

that will not. For example, in MUR 5751 

(the Leadership Forum), the 

Commission made a threshold finding 

that there was a basis for investigating 

(i.e., the Commission found ‘‘Reason to 

Believe’’) whether the Leadership 

Forum had failed to register as a 

political committee based on its 2004 

election activity. The subsequent 

investigation revealed that the 

Leadership Forum’s only public 

communications reprinted 

governmental voter information, 

without any mention of Federal or nonFederal candidates or political parties. 

Following the investigation, the 

Commission closed the matter because 

it found no evidence that the Leadership 


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29See McConnell, 540 U.S. at 170 n.64 (holding 

portions of BCRA were not unconstitutionally 

vague, in part because ‘‘should plaintiffs feel that 

they need further guidance, they are able to seek 

advisory opinions for clarification * * * and 

thereby ‘remove any doubt there may be as to the 

meaning of the law’’’ (internal citation omitted)). 

30See Advisory Opinions 2006–20 (Unity 08); 

2005–16 (Fired Up); 1996–13 (Townhouse 

Associates); 1996–3 (Breeden-Schmidt Foundation); 

1995–11 (Hawthorn Group); 1994–25 (Libertarian 

National Committee) and 1988–22 (San Joaquin 

Valley Republican Associates). 

Forum had crossed the $1,000 threshold 

through expenditures or contributions. 

Consequently, the Commission did not 

undertake a major purpose analysis for 

the Leadership Forum. 

All of these cases taken together 

illustrate (1) The Commission’s 

commitment to enforcing FECA’s 

requirements for political committee 

status as well as (2) the need for an 

examination of an organization’s 

activities under the major purpose 

doctrine, regardless of a particular 

organization’s tax status. 

5. The Advisory Opinion Process 

Any entity that remains unclear about 

the application of FECA to its 

prospective activities may request an 

advisory opinion from the Commission. 

See 2 U.S.C. 437f; 11 CFR part 112. 

Through advisory opinions, the 

Commission can further explain the 

application of the law and provide 

guidance to an organization about how 

the Commission would apply the major 

purpose doctrine to its proposed 

activities, and whether the organization 

must register as a political committee.29

Under FECA, the Commission is 

required to provide an advisory opinion 

within 60 days of receiving a complete 

written request and, in some instances, 

within 20 days. See 2 U.S.C. 437f(a); 11 

CFR 112.4(a) and (b). Moreover, the 

Commission’s legal analysis and 

conclusions in an advisory opinion may 

be relied upon not only by the 

requestor, but also by any person whose 

activity ‘‘is indistinguishable in all its 

material aspects’’ from the activity in 

the advisory opinion. See 2 U.S.C. 

437f(c); 11 CFR 112.5(a)(2). The 

Commission has considered the major 

purpose doctrine in prior advisory 

opinions when assessing whether an 

organization is a political committee.30

The advisory opinion process is an 

effective means by which the 

Commission clarifies the law because it 

allows an entity to ask the Commission 

for specific advice about the factual 

situation with which the entity is 

concerned, often in advance of the 

entity engaging in the contemplated 

activities. 

Conclusion 

By adopting a new regulation by 

which an organization may be required 

to register as a political committee based 

on its solicitations, and by tightening 

the rules governing how registered 

political committees fund solicitations, 

voter drives and campaign 

advertisements, the 2004 Final Rules 

bolstered FECA against circumvention 

not just by one kind of organization, but 

by groups of all kinds. As discussed 

above, the Commission’s decision not to 

establish a political committee 

definition singling out 527 organizations 

is informed by the statutory scheme, 

Supreme Court precedent, and 

Congressional action regarding 527 

organizations. Accordingly, the 

Commission will continue to utilize the 

political committee framework provided 

by Congress in FECA, as modified by 

the Supreme Court. 

Pursuant to FECA and Supreme Court 

precedent, the Commission will 

continue to determine political 

committee status based on whether an 

organization (1) Received contributions 

or made expenditures in excess of 

$1,000 during a calendar year, and (2) 

whether that organization’s major 

purpose was campaign activity. See 2 

U.S.C. 431(4)(A); Buckley, 424 U.S. at 

79; MCFL, 479 U.S. at 262. When 

analyzing a group’s contributions, the 

Commission will consider whether any 

of an organization’s solicitations 

generated contributions because the 

solicitations indicated that any portion 

of the funds received would be used to 

support or oppose the election of a 

clearly identified Federal candidate. See 

11 CFR 100.57. Additionally, the 

Commission will analyze whether 

expenditures for any of an 

organization’s communications made 

independently of a candidate 

constituted express advocacy either 

under 11 CFR 100.22(a), or the broader 

definition at 11 CFR 100.22(b). 

As evidenced by the Commission’s 

recent enforcement actions, together 

with guidance provided through 

publicly available advisory opinions 

and filings in civil enforcement cases, 

this framework provides the 

Commission with a very effective 

mechanism for regulating organizations 

that should be registered as political 

committees under FECA, regardless of 

that organization’s tax status. The 

Commission’s new and amended rules, 

together with this Supplemental 

Explanation and Justification, as well as 

the Commission’s recent enforcement 

actions, places the regulated community 

on notice of the state of the law 

regarding expenditures, the major 

purpose doctrine, and solicitations 

resulting in contributions. In addition, 

any group unclear about the application 

of FECA to its prospective activities may 

request an advisory opinion from the 

Commission. See 2 U.S.C. 437f; 11 CFR 

part 112. 

Dated: February 1, 2007. 

Robert D. Lenhard, 

Chairman, Federal Election Commission. 

[FR Doc. E7–1936 Filed 2–6–07; 8:45 am] 

BILLING CODE 6715–01–P 

FARM CREDIT ADMINISTRATION 

12 CFR Parts 611, 612, 613, 614, and 

615 

RIN 3052–AC15 

Organization; Standards of Conduct 

and Referral of Known or Suspected 

Criminal Violations; Eligibility and 

Scope of Financing; Loan Policies and 

Operations; Funding and Fiscal 

Affairs, Loan Policies and Operations, 

and Funding Operations; Regulatory 

Burden; Effective Date 

AGENCY: Farm Credit Administration. 

ACTION: Notice of effective date. 

SUMMARY: The Farm Credit 

Administration (FCA) published a final 

rule under parts 611, 612, 613, 614, and 

615 on November 8, 2006 (71 FR 65383). 

This final rule reduces regulatory 

burden on the Farm Credit System by 

repealing or revising regulations and 

correcting outdated and erroneous 

regulations. In accordance with 12 

U.S.C. 2252, the effective date of the 

final rule is 30 days from the date of 

publication in the Federal Register 

during which either or both Houses of 

Congress are in session. Based on the 

records of the sessions of Congress, the 

effective date of the regulations is 

February 1, 2007. 

EFFECTIVE DATES: The regulation 

amending 12 CFR parts 611, 612, 613, 

614, and 615, published on November 8, 

2006 (71 FR 65383) is effective February 

1, 2007. 

FOR FURTHER INFORMATION CONTACT: 

Jacqueline R. Melvin, Associate Policy 

Analyst, Office of Policy and Analysis, 

Farm Credit Administration, McLean, 

VA 22102–5090, (703) 883–4498, TTY 

(703) 883–4434; or Howard I. Rubin, 

Senior Counsel, Office of General 

Counsel, Farm Credit Administration, 

McLean, VA 22102–5090, (703) 883–

4020, TTY (703) 883–4020. 

(12 U.S.C. 2252(a)(9) and (10)) 


rwilkins on PROD1PC63 with RULES

A19
FEC EXHIBIT 


Committee for Truth in Politics 2008 Advertising Expenditures

State Amount of Advertising Expenditure 

Wilmington, NC $7,579 

PA 

Wilkes Barre, PA $64,700 

Harrisburg, PA $86,649 

Johnstown, PA $29,677 

Pittsburgh, PA $265,119 

Erie, PA $28,729 

$474,874 

OH 

Cleveland, OH $206,318 

Zanesville, OH $5,346 

Columbus, OH $131,973 

Lima, OH $22,021 

Dayton, OH $85,970 

Cincinnati, OH $42,267 

Toledo, OH $23,956 

$517,851 

WV 

Wheeling, WV- Steubenville, WV $9,102 

Charleston, WV $21,453 

$30,555 

WI 

Milwaukee, WI $43,078 

Madison, WI $34,023 

Green Bay, WI $23,576 

Wausau, WI $12,921 

Lacrosse, WI $136 

$113,734 

TOTAL $1,144,593.00 

Attachment 1