UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

____________________________________ 

 ) 

SPEECHNOW.ORG, ) 

DAVID KEATING, ) 

FRED M. YOUNG, JR., ) 

EDWARD H. CRANE, III, ) 

BRAD RUSSO, and ) 

SCOTT BURKHARDT ) 

 ) 

 Plaintiffs, ) 

 ) 

 v. ) Civil Case No. 1:08-cv-00248 (JR) 

 ) 

FEDERAL ELECTION COMMISSION ) 

 ) 

 Defendant. ) 

____________________________________) 

______________________________________________________

PLAINTIFFS’ MOTION FOR ENTRY OF JUDGMENT 

_______________________________________________________

Plaintiffs, by their attorneys, respectfully move this Court to enter final judgment on their 

request to declare 2 U.S.C. §§ 441a(a)(1)(C) and 441a(a)(3) unconstitutional as applied to 

Plaintiffs and to enjoin Defendant Federal Election Commission from enforcing those provisions 

against Plaintiffs. In support of this motion, and as more fully set forth in Plaintiffs’ 

memorandum of law, Plaintiffs state the following: 

1. On March 26, 2010, the en banc United States Court of Appeals for the District of 

Columbia Circuit unanimously ruled that contributions by the individual Plaintiffs to 

SpeechNow.org could not be constitutionally limited. SpeechNow.org v. FEC, 599 F.3d 686, 

694-95 (D.C. Cir. 2010). In so holding, the Court ruled that the enforcement of 2 U.S.C. 

§§ 441a(a)(1)(C) or 441a(a)(3) against either SpeechNow.org or the individual Plaintiffs violated 

the First Amendment. SpeechNow.org, 599 F.3d at 696. The Court of Appeals, in its judgment, 

Case 1:08-cv-00248-JR Document 76 Filed 05/14/10 Page 1 of 15
2

“ORDERED and ADJUDGED that the contribution limits set forth in certified questions 1, 2, 

and 3 cannot be constitutionally applied against SpeechNow and the individual plaintiffs” and 

therefore “ORDERED and ADJUDGED that the District Court’s order denying injunctive relief 

be vacated and the case be remanded for further proceedings, in accordance with the opinion of 

the court filed herein this date.” Judgment of March 26, 2010. 

2. Accordingly, Plaintiffs request that this Court declare that the contribution limits 

set forth in certified questions 1, 2, and 3 (2 U.S.C. §§ 441a(a)(1)(C) and 441a(a)(3)) and any 

implementing regulations are unconstitutional as applied to SpeechNow.org, the individual 

Plaintiffs, and others who wish to contribute to SpeechNow.org. 

3. Plaintiffs also request, pursuant to their prayer for relief and the Court of Appeals’ 

judgment, that this Court permanently enjoin Defendant Federal Election Commission from 

enforcing the contribution limits set forth in certified questions 1, 2, and 3 (2 U.S.C. 

§§ 441a(a)(1)(C) and 441a(a)(3)) and any implementing regulations against SpeechNow.org, the 

individual Plaintiffs, and others who wish to contribute to SpeechNow.org. 

Dated: May 14, 2010. 

Respectfully submitted, 

/s/ Steven M. Simpson 

Steven M. Simpson (DC Bar No. 462553) 

William H. Mellor (DC Bar No. 462072) 

Robert Gall (DC Bar No. 482476) 

Robert P. Frommer (DC Bar No. 497308) 

Paul M. Sherman (DC Bar No. 978663) 

INSTITUTE FOR JUSTICE

901 N. Glebe Road, Suite 900 

Arlington, VA 22203 

Tel: (703) 682-9320 

Fax: (703) 682-9321 

Email: ssimpson@ij.org 

Case 1:08-cv-00248-JR Document 76 Filed 05/14/10 Page 2 of 15
3

Stephen M. Hoersting* 

Bradley A. Smith* 

CENTER FOR COMPETITIVE POLITICS

124 W. Street South, Suite 201 

Alexandria, VA 22314 

Tel: (703) 894-6800 

Email: shoersting@campaignfreedom.org, 

BSmith@law.capital.edu 

Attorneys for Plaintiffs

 *Admitted Pro Hac Vice 

Case 1:08-cv-00248-JR Document 76 Filed 05/14/10 Page 3 of 15
4

CERTIFICATE OF SERVICE

 I HEREBY CERTIFY that on this 14th Day of May 2010, a true and correct copy of 

PLAINTIFFS’ MOTION FOR ENTRY OF JUDGMENT and the attached MEMORANDUM 

OF LAW in support was filed electronically using the court’s ECF system and sent via the ECF 

electronic notification system to the following counsel of record: 

Robert W. Bonham, III 

David B. Kolker 

Steve N. Hajjar 

Kevin Deeley 

FEDERAL ELECTION COMMISSION

999 E. Street, N.W. 

Washington, DC 20463 

 /s/ Steven M. Simpson

 Attorney for Plaintiffs 

Case 1:08-cv-00248-JR Document 76 Filed 05/14/10 Page 4 of 15
UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

____________________________________ 

 ) 

SPEECHNOW.ORG, ) 

DAVID KEATING, ) 

FRED M. YOUNG, JR., ) 

EDWARD H. CRANE, III, ) 

BRAD RUSSO, and ) 

SCOTT BURKHARDT ) 

 ) 

 Plaintiffs, ) 

 ) 

 v. ) Civil Case No. 1:08-cv-00248 (JR) 

 ) 

FEDERAL ELECTION COMMISSION ) 

 ) 

 Defendant. ) 

____________________________________) 

______________________________________________________

PLAINTIFFS’ MEMORANDUM OF LAW IN 

SUPPORT OF THEIR MOTION FOR ENTRY OF JUDGMENT 

_______________________________________________________

William H. Mellor (DC Bar No. 462072) 

Steven M. Simpson (DC Bar No. 462553) 

Robert Gall (DC Bar No. 482476) 

Robert P. Frommer (DC Bar No. 497308) 

Paul M. Sherman (DC Bar No. 978663) 

INSTITUTE FOR JUSTICE

901 N. Glebe Road, Suite 900 

Arlington, VA 22203 

Tel: (703) 682-9320 

Stephen M. Hoersting* 

Bradley A. Smith* 

CENTER FOR COMPETITIVE POLITICS

124 W. Street South, Suite 201 

Alexandria, VA 22314 

Tel: (703) 894-6800 

Attorneys for Plaintiffs

*Admitted Pro Hac Vice 

Case 1:08-cv-00248-JR Document 76 Filed 05/14/10 Page 5 of 15
ii

TABLE OF CONTENTS 

Page 

TABLE OF AUTHORITIES ......................................................................................................... iii 

INTRODUCTION ...........................................................................................................................1 

ARGUMENT...................................................................................................................................2 

CONCLUSION................................................................................................................................6 

Case 1:08-cv-00248-JR Document 76 Filed 05/14/10 Page 6 of 15
iii

TABLE OF AUTHORITIES 

Cases Pages

ACLU v. Reno, 

 217 F.3d 162 (3d Cir. 2000).................................................................................................5

Chaplaincy of Full Gospel Churches v. England, 

 454 F.3d 290 (D.C. Cir. 2006).........................................................................................3, 4

* Citizens United v. FEC, 

 130 S.Ct. 876 (2010)....................................................................................................1, 4, 5 

Crocker v. Piedmont Aviation, Inc., 

49 F.3d 735 (D.C. Cir. 1995)...............................................................................................2

* eBay Inc. v. MercExchange, L.L.C., 

547 U.S. 388 (2006).............................................................................................................3

Elrod v. Burns, 

427 U.S. 347 (1976).............................................................................................................3

Freedman v. Maryland, 

380 U.S. 51 (1965)...............................................................................................................4

Griffin v. United States, 

935 F. Supp. 1 (D.D.C. 1995)..............................................................................................2

Indep. Petroleum Ass’n of Am. v. Babbitt, 

235 F.3d 588 (D.C. Cir. 2001).............................................................................................2

Me. Right to Life Comm., Inc. v. FEC, 

 98 F.3d 1 (1st Cir. 1996) .....................................................................................................4

* Mills v. District of Columbia, 

571 F.3d 1304 (D.C. Cir. 2009)...........................................................................................3

Minnesota Chamber of Commerce v. Gaertner, 

Civ. No. 10-426, 2010 WL 1838362 (D. Minn. May 7, 2010) ................................... 4, 5 

Pac. Frontier v. Pleasant Grove City, 

 414 F.3d 1221 (10th Cir. 2005) ...........................................................................................5

Phelps-Roper v. Nixon, 

545 F.3d 685 (8th Cir. 2008) ...............................................................................................5

*Authorities upon which Plaintiffs chiefly rely are marked with asterisks.

Case 1:08-cv-00248-JR Document 76 Filed 05/14/10 Page 7 of 15
iv

People for the Ethical Treatment of Animals v. Gittens, 

215 F. Supp. 2d 120 (D.D.C. 2002).....................................................................................5

Right to Life of Dutchess County, Inc. v. FEC, 

 6 F. Supp. 2d 248 (S.D.N.Y. 1998) .....................................................................................4

Sammartano v. First Judicial Dist. Court, 

303 F.3d 959 (9th Cir. 2002) ...............................................................................................5

* SpeechNow.org v. FEC, 

599 F.3d 686 (D.C. Cir. 2010).........................................................................................1, 4 

Va. Soc’y for Human Life, Inc. v. FEC, 

 263 F.3d 379 (4th Cir. 2001) ..............................................................................................4

Statutes and Regulations

2 U.S.C. § 441a(a)(1)(C) .........................................................................................................1, 3, 6 

2 U.S.C. § 441a(a)(3)...............................................................................................................1, 3, 6 

Rules

D.C. Cir. R. 35(a).............................................................................................................................2 

D.C. Cir. R. 41 .................................................................................................................................2

Case 1:08-cv-00248-JR Document 76 Filed 05/14/10 Page 8 of 15
INTRODUCTION 

 Plaintiffs come to this Court seeking entry of judgment on their contribution-limit claims. 

The D.C. Circuit has unanimously ruled that the First Amendment prohibits the government 

from limiting the amounts of money the individual Plaintiffs may contribute to SpeechNow.org. 

SpeechNow.org v. FEC, 599 F.3d 686, 694-95 (D.C. Cir. 2010). Plaintiffs accordingly ask that 

this Court enter judgment on their behalf; declare that the contribution limits set forth in certified 

questions 1, 2, and 3 (2 U.S.C. §§ 441a(a)(1)(C) and 441a(a)(3)) and any implementing 

regulations are unconstitutional as applied to the Plaintiffs and other potential contributors to 

SpeechNow.org; and enter an injunction preventing the FEC from enforcing those provisions 

against the Plaintiffs or others who wish to donate money to SpeechNow.org. 

Following this Court’s certification of Plaintiffs’ five constitutional questions on 

September 28, 2009, it transmitted the supplemental record to the United States Court of Appeals 

for the District of Columbia Circuit. There, the parties and amici completed three rounds of 

expedited merits briefing, which was followed by oral argument before the en banc D.C. Circuit 

on January 27, 2010. 

Less than two months later, the Court of Appeals unanimously ruled that “[i]n light of the 

Court’s holding [in Citizens United v. FEC, 130 S.Ct. 876 (2010)] as a matter of law that 

independent expenditures do not corrupt or create the appearance of quid pro quo corruption, 

contributions to groups that make only independent expenditures also cannot corrupt or create 

the appearance of corruption.” SpeechNow.org, 599 F.3d at 694. Accordingly, the Court of 

Appeals held that the contribution limits contained in 2 U.S.C. §§ 441a(a)(1)(C) or 441a(a)(3) 

could not be constitutionally enforced against a group like SpeechNow.org that makes only 

independent expenditures. SpeechNow.org, 599 F.3d at 696. 

Case 1:08-cv-00248-JR Document 76 Filed 05/14/10 Page 9 of 15
2

In the judgment accompanying its opinion, the Court of Appeals “ORDERED and 

ADJUDGED that the contribution limits set forth in certified questions 1, 2, and 3 cannot be 

constitutionally applied against SpeechNow and the individual plaintiffs” and therefore 

“ORDERED and ADJUDGED that the District Court’s order denying injunctive relief be 

vacated and the case be remanded for further proceedings, in accordance with the opinion of the 

court filed herein this date.” Judgment of March 26, 2010. 

Pursuant to the D.C. Circuit rules, the Court stayed issuance of the mandate until seven 

days after the time for rehearing had elapsed. D.C. Cir. R. 41; Order of March 26, 2010. Under 

that schedule, the case would not have returned to this Court until sometime after May 17, 2010. 

See D.C. Cir. R. 35(a) (stating that an agency of the federal government has 45 days to petition 

for en banc rehearing). Because of the quickly approaching primary season and their limited 

opportunity to speak, Plaintiffs requested that the Court of Appeals immediately issue the 

mandate and return the case to this Court. On May 3, 2010, the en banc Court of Appeals 

granted that motion to expedite. 

ARGUMENT 

Plaintiffs are entitled to both a declaration that the contribution limits they challenged are 

unconstitutional and an injunction against enforcement of those laws against them. It is blackletter law that district courts are bound to follow the mandate issued by appellate courts. See 

Crocker v. Piedmont Aviation, Inc., 49 F.3d 735, 739 (D.C. Cir. 1995) (discussing law of the 

case doctrine); see also Indep. Petroleum Ass’n of Am. v. Babbitt, 235 F.3d 588, 596-97 (D.C. 

Cir. 2001) (describing rule that district court may not “deviate from the mandate issued by an 

appellate court”); Griffin v. United States, 935 F. Supp. 1, 5 (D.D.C. 1995) (stating that decision 

of appellate court is to be followed upon remand). The D.C. Circuit’s judgment was clear. The 

Case 1:08-cv-00248-JR Document 76 Filed 05/14/10 Page 10 of 15
3

Court ruled that the contribution limits “cannot be constitutionally applied against SpeechNow 

and the individual plaintiffs.” Thus, the Court not only ruled in Plaintiffs’ favor on their claim 

for declaratory relief; it also ordered that “the District Court’s order denying injunctive relief be 

vacated.” Judgment of March 26, 2010. 

A plaintiff is entitled to a permanent injunction when it has shown “(1) that it has 

suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are 

inadequate to compensate for that injury; (3) that, considering the balance of hardships between 

the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest 

would not be disserved by a permanent injunction.” eBay Inc. v. MercExchange, L.L.C., 547 

U.S. 388, 391 (2006). Plaintiffs easily satisfy these elements. 

First, the D.C. Circuit, in its opinion of March 26, unanimously ruled 2 U.S.C. 

§§ 441a(a)(1)(c) and 441a(a)(3) unconstitutional as applied to SpeechNow.org and the individual 

Plaintiffs and held that those provisions could no longer be applied to any of the Plaintiffs. 

Because of the contribution limits, Plaintiffs have been prevented from collecting and spending 

unlimited amounts for independent electoral advocacy for over two years. In light of the D.C. 

Circuit’s ruling in their favor, the contribution limits have unquestionably caused Plaintiffs 

irreparable injury. See Mills v. District of Columbia, 571 F.3d 1304, 1312 (D.C. Cir. 2009) 

(holding that “the loss of constitutional freedoms, ‘for even minimal periods of time, 

unquestionably constitutes irreparable injury’”) (quoting Elrod v. Burns, 427 U.S. 347, 373 

(1976) (plurality opinion)). 

Secondly, there are no adequate remedies at law that can compensate Plaintiffs for the 

harm they have suffered and will continue to suffer if the FEC enforces the contribution limits 

against them. See Mills, 571 F.3d at 1312; see also Chaplaincy of Full Gospel Churches v. 

Case 1:08-cv-00248-JR Document 76 Filed 05/14/10 Page 11 of 15
4

England, 454 F.3d 290, 302-03 (D.C. Cir. 2006). In the past, the FEC has continued to enforce 

regulations outside of the jurisdiction in which they have been declared unconstitutional. For 

example, after the First Circuit and a district court in New York struck down a regulation 

defining “express advocacy,” the FEC continued to enforce that regulation in other circuits. 

Compare Me. Right to Life Comm., Inc. v. FEC, 98 F.3d 1 (1st Cir. 1996) and Right to Life of 

Dutchess County, Inc. v. FEC, 6 F. Supp. 2d 248 (S.D.N.Y. 1998) with Va. Soc’y for Human 

Life, Inc. v. FEC, 263 F.3d 379 (4th Cir. 2001). See also Va. Soc’y for Human Life, 263 F.3d at 

385 (describing FEC’s continued enforcement of regulation after adverse rulings in other 

jurisdictions). As the Supreme Court recently noted in another context, “[b]ecause the FEC’s 

‘business is to censor, there inheres the danger that [it] may well be less responsive than a court 

. . . to the constitutionally protected interests in free expression.’” Citizens United, 130 S.Ct. at 

896 (quoting Freedman v. Maryland, 380 U.S. 51, 57-58 (1965)). 

Accordingly, a declaration alone will not prevent the FEC from enforcing the 

contribution limits against the Plaintiffs in other circuits. Plaintiffs plan both to raise money for 

independent ads and to broadcast such ads throughout the nation. See SpeechNow.org, 599 F.3d 

at 690. Plaintiffs should not have to litigate this case in every circuit in order to ensure their 

ability to exercise rights that are clearly protected under the First Amendment. Cf. Citizens 

United, 130 S.Ct. at 889, 892 (noting that “[t]he First Amendment does not permit laws that 

force speakers to retain a campaign finance attorney . . . or seek declaratory rulings before 

discussing the most salient issues of the day” and declining to adopt a narrow interpretation of a 

challenged statute “that requires intricate case-by-case determinations to verify whether political 

speech is banned”). As a result, Plaintiffs need the added protection afforded by an injunction. 

Cf. Minnesota Chamber of Commerce v. Gaertner, Civ. No. 10-426, 2010 WL 1838362, at *4 

Case 1:08-cv-00248-JR Document 76 Filed 05/14/10 Page 12 of 15
5

(D. Minn. May 7, 2010) (granting injunction because other prosecutors who were not parties to 

litigation might enforce laws ruled unconstitutional).

Third, the government can have no interest in enforcing a statute in a manner that violates 

the Constitution. ACLU v. Reno, 217 F.3d 162, 181 (3d Cir. 2000) (“[N]either the Government 

nor the public generally can claim an interest in the enforcement of an unconstitutional law.”), 

vacated on other grounds sub nom., Ashcroft v. ACLU, 535 U.S. 564 (2002). Thus, the balance 

of hardships clearly favors Plaintiffs, who, as described above, have suffered irreparable harm 

from the laws and regulations that have been enforced against them. 

Lastly, enjoining the FEC from enforcing the contribution limits against Plaintiffs and 

others who wish to contribute to SpeechNow.org is in the public interest. “[I]t is always in the 

public interest to protect constitutional rights.” Phelps-Roper v. Nixon, 545 F.3d 685, 690 (8th 

Cir. 2008); accord Pac. Frontier v. Pleasant Grove City, 414 F.3d 1221, 1237 (10th Cir. 2005) 

(“Vindicating First Amendment freedoms is clearly in the public interest.”); Sammartano v. First 

Judicial Dist. Court, 303 F.3d 959, 974 (9th Cir. 2002) (“Courts considering requests for 

preliminary injunctions have consistently recognized the significant public interest in upholding 

First Amendment principles.”); People for the Ethical Treatment of Animals v. Gittens, 215 F. 

Supp. 2d 120, 134 (D.D.C. 2002) (“[T]he public interest favors a preliminary injunction 

whenever First Amendment rights have been violated.”). 

“Speech is an essential mechanism of democracy, for it is the means to hold officials 

accountable to the people.” Citizens United, 130 S.Ct. at 898. By protecting Plaintiffs’ First 

Amendment rights, this Court will ensure that “[t]he right of citizens to inquire, to hear, to speak, 

and to use information to reach consensus[, which] is a precondition to enlightened selfgovernment and a necessary means to protect it,” id. at 899, is preserved and strengthened. 

Case 1:08-cv-00248-JR Document 76 Filed 05/14/10 Page 13 of 15
6

CONCLUSION 

For the reasons detailed in their motion and this memorandum of law, Plaintiffs 

respectfully request that this Court: 

1. Declare that that the contribution limits set forth in certified questions 1, 2, and 3 (2 

U.S.C. §§ 441a(a)(1)(C) and 441a(a)(3)) and any implementing regulations cannot be 

constitutionally applied against SpeechNow.org, the individual Plaintiffs, and others 

who wish to contribute to SpeechNow.org; 

2. Permanently enjoin Defendant Federal Election Commission from enforcing the 

contribution limits set forth in certified questions 1, 2, and 3 (2 U.S.C. 

§§ 441a(a)(1)(C) and 441a(a)(3)) and any implementing regulations against 

SpeechNow.org, the individual Plaintiffs, and others who wish to contribute to 

SpeechNow.org; and 

3. Enter final judgment in this action. 

Dated: May 14, 2010. 

Respectfully submitted, 

/s/ Steven M. Simpson 

Steven M. Simpson (DC Bar No. 462553) 

William H. Mellor (DC Bar No. 462072) 

Robert Gall (DC Bar No. 482476) 

Robert P. Frommer (DC Bar No. 497308) 

Paul M. Sherman (DC Bar No. 978663) 

INSTITUTE FOR JUSTICE

901 N. Glebe Road, Suite 900 

Arlington, VA 22203 

Tel: (703) 682-9320 

Fax: (703) 682-9321 

Email: ssimpson@ij.org 

Stephen M. Hoersting* 

Bradley A. Smith* 

Case 1:08-cv-00248-JR Document 76 Filed 05/14/10 Page 14 of 15
7

CENTER FOR COMPETITIVE POLITICS

124 W. Street South, Suite 201 

Alexandria, VA 22314 

Tel: (703) 894-6800 

Email: shoersting@campaignfreedom.org, 

BSmith@law.capital.edu 

Attorneys for Plaintiffs

 *Admitted Pro Hac Vice 

Case 1:08-cv-00248-JR Document 76 Filed 05/14/10 Page 15 of 15
UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

____________________________________ 

 ) 

SPEECHNOW.ORG, ) 

DAVID KEATING, ) 

FRED M. YOUNG, JR., ) 

EDWARD H. CRANE, III, ) 

BRAD RUSSO, and ) 

SCOTT BURKHARDT ) 

 ) 

 Plaintiffs, ) 

 ) 

 v. ) Civil Case No. 1:08-cv-00248 (JR) 

 ) 

FEDERAL ELECTION COMMISSION ) 

 ) 

 Defendant. ) 

____________________________________) 

_______________________________________________________

ORDER GRANTING PLAINTIFFS’ MOTION FOR ENTRY OF JUDGMENT 

_______________________________________________________

The D.C. Circuit, in its opinion of March 26, 2010, held that the statutes and regulations 

that limit the contributions the individual Plaintiffs may make to SpeechNow.org, and the 

contributions SpeechNow.org may accept, violate the First Amendment. Accordingly, this Court 

enters final judgment on behalf of Plaintiffs and declares that the contribution limits set forth in 

certified questions 1, 2, and 3 (2 U.S.C. §§ 441a(a)(1)(C) and 441a(a)(3)) and any implementing 

regulations cannot be constitutionally applied against SpeechNow.org, the individual Plaintiffs, 

and others who wish to contribute to SpeechNow.org; 

This Court also ORDERS that Defendant is permanently enjoined from enforcing the 

contribution limits set forth in certified questions 1, 2, and 3 (2 U.S.C. §§ 441a(a)(1)(C) and 

Case 1:08-cv-00248-JR Document 76-1 Filed 05/14/10 Page 1 of 2
2

441a(a)(3)) and any implementing regulations against SpeechNow.org, the individual Plaintiffs, 

and others who wish to contribute to SpeechNow.org. 

SO ORDERED this ____ day of ________________, 2010. 

 ____________________________________ 

 United States District Judge 

Case 1:08-cv-00248-JR Document 76-1 Filed 05/14/10 Page 2 of 2