UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

____________________________________ 

 ) 

STOP THIS INSANTITY INC. ) 

EMPLOYEE LEADERSHIP FUND, et al., ) 

 ) 

 Plaintiffs, ) Civ. No. 12-1140 (BAH) 

 ) 

 v. ) 

 ) 

FEDERAL ELECTION COMMISSION, ) MOTION TO DISMISS 

) 

 Defendant. ) 

____________________________________) 

DEFENDANT FEDERAL ELECTION COMMISSION’S MOTION TO DISMISS 

Defendant Federal Election Commission respectfully moves the Court to dismiss this 

case for failure to state a claim on which relief can be granted. Fed. R. Civ. P. 12(b)(6). As 

grounds for this motion, the Commission refers to (and incorporates by reference herein) its 

Opposition to Plaintiffs’ Motion for Preliminary Injunction (Docket No. 6) (“FEC Inj. Br.”). 

Stop This Insanity, Inc. (“STI”) is a non-profit corporation that has a separate segregated 

fund — Stop This Insanity, Inc. Employee Leadership Fund (“STIELF”) — which is registered 

with the Federal Election Commission as a political committee (commonly called a “PAC”). At 

the present time, STIELF has a single bank account into which it receives contributions that are 

subject to the limitations, prohibitions, and reporting requirements of the Federal Election 

Campaign Act (“FECA”), 2 U.S.C. §§ 431-57. STIELF uses this account to make direct 

contributions to candidates. Under FECA and Commission regulations, STIELF is prohibited 

from opening a second federal account, a “non-contribution account,” into which it would solicit 

unlimited individual and corporate contributions, and from which it would finance independent 

expenditures. Through this lawsuit, STIELF seeks to open such an account. But STI itself can 

Case 1:12-cv-01140-BAH Document 8 Filed 09/25/12 Page 1 of 5
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already, consistent with existing law, solicit and spend such funds — either directly or through 

the creation of a separate PAC. 

As demonstrated in the Commission’s prior brief, the First Amendment does not require 

that a corporation such as STI be permitted to finance electoral advocacy through an accounting 

mechanism. The accounting device that STI seeks to create would serve to conceal the 

corporation’s political spending from the public and facilitate attempts to pressure the 

corporation’s employees and others into funding its candidate advocacy. 

Plaintiffs’ claims fail as a matter of law because: 

1. In Citizens United v. FEC, 130 S. Ct. 876 (2010), the Supreme Court struck down 

FECA’s prohibition on direct corporate financing of campaign advocacy as a 

violation of the First Amendment. But the Court upheld FECA’s requirement that 

corporation-funded electioneering must be disclosed to the Commission and the 

public. Eight Justices agreed that disclosure is “less restrictive” than a limit on 

spending, id. at 915, and is a constitutionally permissible method of furthering the 

public’s important interest in knowing who is responsible for pre-election 

communications about candidates, see id. at 915-16. (See FEC Inj. Br. at 4-5, 17-18.) 

2. After Citizens United, the D.C. Circuit held in SpeechNow.org v. FEC, 599 F.3d 

686 (D.C. Cir. 2010) (en banc), that a statutory limit on contributions to PACs was 

unconstitutional as applied to a non-connected PAC that spent its funds only on 

independent advocacy and was funded only by individual contributions. Id. at 

693-95.1

 But like the Supreme Court in Citizens United, the D.C. Circuit affirmed the 

                                                           

1

 A “non-connected PAC” is a political committee that is neither a committee of a political 

party nor a “separate segregated fund” established by a corporation or labor organization — i.e., 

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constitutionality of mandatory disclosure of political spending “based on a 

governmental interest in ‘provid[ing] the electorate with information’” about the 

sources of election-related funds. Id. at 696 (quoting Buckley v. Valeo, 424 U.S. 1, 66 

(1976)). The D.C. Circuit held that the government can constitutionally require all 

political committees — including those exempt from limits on the contributions they 

receive — to report all of their income and spending, “no matter whether the [funds] 

were [given] towards administrative expenses or independent expenditures.” Id. at 

698. (See FEC Inj. Br. at 5-6, 18.) 

3. The relief that plaintiffs seek in this lawsuit would permit STI to solicit funds from 

the general public to finance express candidate advocacy without disclosing that STI 

was paying for the solicitations. See 2 U.S.C. §§ 431(8)(B)(vi), (9)(B)(v), 434(b), 

441b(b)(2)(C). But Citizens United and SpeechNow undermine plaintiffs’ claim of a 

constitutional right to conduct such solicitations — which may themselves support or 

oppose federal candidates — without disclosing STI’s role in financing and 

distributing them. Plaintiffs fail to demonstrate a constitutional right to finance such 

communications in a manner that would render them exempt from the disclosure rules 

applicable to every other PAC engaging in similar electioneering. (See FEC Inj. Br. 

at 15-19.) 

4. To prevent coercion of corporate employees and others, federal law provides that a 

corporation-sponsored PAC — or separate segregated fund (“SSF”) — generally may 

solicit contributions only from the connected corporation’s owners and salaried 

executives (and their respective families). 2 U.S.C. § 441b(b)(4)(A)(i); 

                                                                                                                                                                                               

it is not “connected” to any political party, corporation, or union. See 2 U.S.C. §§ 431(4)(B), 

441b(b). 

Case 1:12-cv-01140-BAH Document 8 Filed 09/25/12 Page 3 of 5
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11 C.F.R. § 114.5(g)(1). A limited exception permits an SSF to solicit its connected 

corporation’s non-executive employees, but there are detailed restrictions on such 

solicitations that limit the coercive effect of a corporation asking its employees to 

give money. 2 U.S.C. § 441b(b)(3)(B)-(C), (4)(B). (See FEC Inj. Br. at 22-25.) 

5. Plaintiffs fail to demonstrate a constitutional right to make unrestricted 

solicitations to STI’s employees and the public for STI’s SSF. Even accepting 

plaintiffs’ recent pledge to abide by the requirements of 2 U.S.C. § 441b(b)(4)(B), 

plaintiffs’ proposed conduct would still enable corporations to double the number of 

solicitations they make to employees and, more importantly, to solicit unlimited funds 

from each employee. This result — permitting a corporation to ask its employees to 

give all they can afford to the employer’s SSF — would facilitate rather than preclude 

the very coercive conditions Congress sought to prevent when it enacted the 

restrictions plaintiffs now seek to avoid. (See FEC Inj. Br. at 22-25.) 

CONCLUSION 

 For all of the foregoing reasons, and those set forth in the Commission’s Opposition to 

Plaintiffs’ Motion for Preliminary Injunction (Docket No. 6), the Commission requests that the 

case be dismissed with prejudice under Federal Rule of Civil Procedure 12(b)(6). 

Respectfully submitted, 

Anthony Herman (D.C. Bar No. 424643) 

General Counsel 

David Kolker (D.C. Bar No. 394558) 

Associate General Counsel 

Lisa J. Stevenson (D.C. Bar No. 457628) 

Special Counsel to the General Counsel 

 

Case 1:12-cv-01140-BAH Document 8 Filed 09/25/12 Page 4 of 5
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 /s/ Adav Noti 

Adav Noti (D.C. Bar No. 490714) 

Acting Assistant General Counsel 

 anoti@fec.gov 

 Erin Chlopak (D.C. Bar No. 496370) 

 Attorney 

 FEDERAL ELECTION COMMISSION 

 999 E Street NW 

 Washington, DC 20463 

September 25, 2012 (202) 694-1650

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