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UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

CHRIS VAN HOLLEN, 

 Plaintiff, 

v. 

FEDERAL ELECTION COMMISSION, 

 Defendant, 

and 

CENTER FOR INDIVIDUAL 

FREEDOM, 

 Defendant, 

and 

HISPANIC LEADERSHIP FUND, 

 Defendant. 

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Civ. A. No. 1:11-cv-00766 (ABJ) 

DEFENDANT CFIF’S REPLY TO PLAINTIFF’S 

OPPOSITION TO MOTION FOR STAY PENDING APPEAL 

Defendant Center for Individual Freedom (“CFIF”) relies on its Motion for Stay Pending 

Appeal in response to Plaintiff Van Hollen’s Opposition, but separately replies to further address 

one point. Seeking to negate irreparable injury, Plaintiff asserts (at 6) that disclosure statutes 

impair First Amendment rights only where the disclosures are likely to lead to “threats, 

harassment, or reprisals,” citing Citizens United v. FEC, 130 S. Ct. 876, 916 (2010). Plaintiff 

misreads that case. 

The Supreme Court has been clear that the reason disclosure statutes facially trigger 

exacting judicial scrutiny is that compelled disclosure, in itself, substantially burdens speech as a 

matter of law. Buckley v. Valeo, 424 U.S. 1, 60, 64 (1976) (collecting authority); Doe v. Reed, 

Case 1:11-cv-00766-ABJ Document 58 Filed 04/17/12 Page 1 of 4
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130 S. Ct. 2811, 2818 (2010). Buckley ruled that the “significant encroachments on First 

Amendment rights of the sort that compelled disclosure imposes” required the government to 

show more than a “legitimate governmental interest” to sustain such a requirement. 424 U.S. 

at 64. That is why McConnell v. FEC, 540 U.S. 93, 196-97 (2003), subjected the disclosure 

provisions of BCRA to detailed scrutiny before concluding that they were facially justified and 

valid. 

Citizens United did not question those holdings, nor did it have occasion to do so. It 

faced an as-applied challenge to a disclosure statute that, in McConnell, already had been 

subjected to exhaustive and exacting review and held to be facially justified and valid. Citizens 

United merely observed that a likelihood of special injury is necessary to render unconstitutional 

the application of a facially valid statute. 130 S. Ct. at 916. That point was nothing new: 

Buckley said the same thing. 424 U.S. at 64-74. But Buckley and Citizens United both 

recognized that disclosure requirements, in themselves, impose serious First Amendment burden. 

Buckley, 424 U.S. at 64; Citizens United, 130 S. Ct. at 914. 

The effect of the Court’s ruling here is to implement a sweeping disclosure obligations on 

ordinary corporations and labor unions that neither Congress nor the courts have evaluated and 

sustained. Indeed, the only element of government to examine the burden is the FEC, and it 

concluded the burdens would be substantial and should be limited. 

Whether the FEC had the legal authority to limit disclosure in these circumstances is, of 

course, part of the novel question identified by the Court that will be addressed on appeal. What 

is clear, however, is that setting aside the FEC’s regulation now has the effect of imposing 

substantial burdens on the free speech of CFIF and other ordinary corporations and labor unions. 

Case 1:11-cv-00766-ABJ Document 58 Filed 04/17/12 Page 2 of 4
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See Def. CFIF Mot. for Stay Pending Appeal at 9-10.1

 That First Amendment burden is 

irreparable injury as a matter of law, and doubly so since the primary season already is under 

way. Both the Plaintiff in his official capacity and the public share a strong interest in 

maximizing free speech and protecting the First Amendment. 

It may be, of course, that the speech injury ultimately may turn out to be lawful and 

justified by countervailing government interests. But that is true in every case in which a stay is 

sought because a district court judgment will injure speech. After all, if the district court did not 

believe its judgment to be correct, it would have ruled otherwise. Nevertheless, First 

Amendment rights have such priority and importance that, if there are fair and substantial 

grounds for appeal, the speech injury should not be imposed until appellate review is complete. 

This is such a case. A stay should be granted. 

 

1

 The district court in West Virginia similarly recognized that broad disclosures like those 

Plaintiff seeks here “will surely discourage organizations from speaking, or else face diminished 

business or organizational success.” CFIF v. Tennant, Civ. A. No. 1:08-cv-00190, 2011 WL 

2912735, at *49 (S.D.W.Va. July 18, 2011). Compare Nat’l Ass’n of Manufacturers v. NLRB, 

No. 12-5068 (D.C. Cir. Apr. 17, 2012) (citing contrary position reached by another district court 

in granting motion for stay pending appeal). Furthermore, the FEC has been unable to advise 

CFIF as to its position on this motion, whether the agency plans to appeal, or what its 

enforcement plans might be with respect to the new legal landscape. As the D.C. Circuit also 

recognized in NAM, “uncertainty about enforcement” supports “temporarily preserving the status 

quo while [the appellate process] resolves all of the issues on the merits.” In this case, a stay 

also would allow for an interim period for the FEC to formulate an enforcement position, 

develop reporting and disclosure forms and instructions, and otherwise prepare for possible 

abolition of its regulation. 

Case 1:11-cv-00766-ABJ Document 58 Filed 04/17/12 Page 3 of 4
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April 17, 2012 Respectfully submitted, 

 /s/ Thomas W. Kirby 

Jan Witold Baran (D.C. Bar No. 233486) 

 E-mail: jbaran@wileyrein.com

Thomas W. Kirby (D.C. Bar No. 915231) 

 E-mail: tkirby@wileyrein.com

Caleb P. Burns (D.C. Bar No. 474923) 

 E-mail: cburns@wileyrein.com

Andrew G. Woodson (D.C. Bar No. 494062) 

 E-mail: awoodson@wileyrein.com

WILEY REIN LLP 

1776 K St., NW 

Washington, D.C. 20006 

202.719.7000 

Counsel for Center for Individual Freedom

Case 1:11-cv-00766-ABJ Document 58 Filed 04/17/12 Page 4 of 4