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. ) 

____________________________________) 

_______________________________________________________

MOTION TO CERTIFY 

QUESTIONS UNDER 2 U.S.C. § 437h 

_______________________________________________________

Plaintiffs David Keating, Fred Young, Ed Crane, Brad Russo, and Scott Burkhardt, by 

their attorneys, respectfully move this Court, pursuant to 2 U.S.C. § 437h, to certify certain 

constitutional questions to the United States Court of Appeals for the District of Columbia 

Circuit, which shall hear the matter sitting en banc. In support of this Motion, and as more fully 

set forth in Plaintiffs’ memorandum of law, Plaintiffs state the following: 

1. Section 437h permits “any individual eligible to vote in an election for the office 

of President” to institute actions in district court challenging any provisions of the Federal 

Election Campaign Act, and it directs district courts in such cases to certify “all questions of 

constitutionality of this Act to the United States court of appeals for the circuit involved, which 

shall hear the matter sitting en banc.” 2 U.S.C. § 437h. 
2. Plaintiffs David Keating, Fred Young, Ed Crane, Brad Russo, and Scott 

Burkhardt are asserting in this action as-applied constitutional challenges the contribution limits 

in 2 U.S.C. §§ 441a(a)(1)(C) and 441a(a)(3) and the administrative, organizational, and 

continuous reporting requirements that apply to political committees under 2 U.S.C. §§ 432, 433, 

and 434(a). Plaintiffs contend that the contribution limits prevent them from pooling their funds 

and effectively advocating the election and/or defeat of candidates for federal office and that the 

requirements that apply to PACs are unduly burdensome and not narrowly tailored to serve a 

compelling state interest. As a result, these provisions violate the First Amendment. 

3. Plaintiffs David Keating, Fred Young, Ed Crane, Brad Russo, and Scott 

Burkhardt are individuals who are eligible to vote in an election for the office of President and 

they present substantial questions concerning the constitutionality of various provisions of 

FECA. Their claims therefore meet the requirements for certification under § 437h. 

4. In their Joint Scheduling Report, filed with the Court on June 6, 2008, the parties 

agreed to a bifurcated briefing schedule for the certification motion, with initial briefing now on 

the constitutional questions to be certified and briefing on proposed findings of fact to follow the 

close of discovery. Accordingly, the Plaintiffs respectfully request that this Court enter an order 

designating the questions listed in section II of the accompanying memorandum of law as the 

questions to be certified to the D.C. Circuit under 2 U.S.C. § 437h pending findings of fact to be 

issued after the close of discovery. 

Dated: June 27, 2008. 

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) 

2
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* 

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 

3
CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 27th Day of June 2008, a true and correct copy of the 

MOTION TO CERTIFY QUESTIONS UNDER 2 U.S.C. § 437h and attached 

MEMORANDUM 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 

4
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 

MOTION TO CERTIFY QUESTIONS UNDER 2 U.S.C. § 437h 

_______________________________________________________

William H. Mellor (DC Bar No. 462072) 

Steven M. Simpson (DC Bar No. 462553) 

Robert Gall (DC Bar No. 482476) 

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

i
TABLE OF CONTENTS 

Page 

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

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

FACTUAL BACKGROUND........................................................................................................2 

A. Structure and Operations of SpeechNow.org................................................3 

B. SpeechNow.org’s Planned Political Advertisements ....................................4 

C. The Application of the Federal Election Campaign Act 

to SpeechNow.org.............................................................................................5 

D. SpeechNow.org’s Advisory Opinion Request................................................8 

ARGUMENT................................................................................................................................10 

I. Procedures and Standards for Certification Under § 437h ...................................10 

II. Questions to be Certified...........................................................................................11 

III. The Constitutional Questions Raised In This Case Are Appropriate For 

Certification Under § 437h........................................................................................13 

A. Plaintiffs’ Challenges to the Contribution Limits Raise Substantial 

Constitutional Questions...............................................................................14 

B. Plaintiffs’ Challenges to the Administrative, Organizational, and 

Continuous Reporting Requirements Raise Substantial Constitutional 

Questions.........................................................................................................16 

C. The Individual Plaintiffs are Within the Class of Plaintiffs Who May 

Certify Questions Under §437h ....................................................................18 

CONCLUSION ............................................................................................................................20 

ii
TABLE OF AUTHORITIES 

Cases Pages

Athens Lumber Co., Inc. v. FEC, 

689 F.2d 1006 (11th Cir. 1982) ................................................................................ 12, 20 

Austin v. Michigan Chamber of Commerce, 

494 U.S. 652 (1990).................................................................................................. 16, 18 

Buckley v. Valeo, 

519 F.2d 817 (D.C. Cir. 1975)............................................................................ 10, 14, 16 

California Medical Assoc. v. FEC, 

453 U.S. 182 (1981).................................................................................................. 10, 14 

Chamber of Commerce v. FEC, 

69 F.3d 600 (D.C. Cir. 1995).......................................................................................... 19 

Davis v. FEC, 

No. 07-230, 2008 WL 2520527 (U.S. June 26, 2008).............................................. 15, 18 

FEC v. Colorado Republican Campaign Committee 

533 U.S. 431 (2001)........................................................................................................ 15 

FEC v. Mass. Citizens for Life, 

479 U.S. 238 (1986)............................................................................................ 16, 17, 18 

FEC v. National Conservative Political Action Comm., 

470 U.S. 480 (1985)........................................................................................................ 14 

FEC v. Wisconsin Right to Life, Inc., 

127 S. Ct. 2652 (2007).............................................................................................. 16, 18 

Goland v. United States, 

903 F.2d 1247 (9th Cir. 1990) ......................................................................................... 10 

International Association of Machinists and Aerospace Workers v. FEC, 

678 F.2d 1092 (D.C. Cir. 1982)...................................................................................... 10 

Khachaturian v. FEC, 

980 F.2d 330 (5th Cir. 1992) ........................................................................................... 10 

McConnell v. FEC, 

540 U.S. 93 (2003).......................................................................................................... 14 

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

525 F.3d 274 (4th Cir. 2008) .................................................................................... 15, 16 

Randall v. Sorrell, 

548 U.S. 230 (2006)........................................................................................................ 15 

Constitutional Provisions and Treatises

First Amendment to the U.S. Constitution ............................................................................ passim 

Codes, Rules and Statutes

2 U.S.C. § 431..........................................................................................................6, 7, 8, 9, 11, 13

2 U.S.C. § 432....................................................................................................8, 11, 12, 13, 17, 19

2 U.S.C. § 433....................................................................................................8, 11, 12, 13, 17, 19

2 U.S.C. § 434..............................................................................................8, 11, 12, 13, 16, 17, 19

2 U.S.C. § 437h...................................................................................................................... passim 

2 U.S.C. § 441........................................................................................................................ passim 

26 U.S.C. § 527................................................................................................................................3 

11 C.F.R. Part 109............................................................................................................................4 

11 C.F.R. § 112.4(a).........................................................................................................................8 

Other Publications

District of Columbia Uniform Unincorporated Nonprofit Associations Act, 

D.C. Code section 29-971.01 et seq.................................................................................................3 

Federal Election Campaign Act...................................................................................................1, 5 

Statement of Policy Regarding Treasurers Subject to Enforcement Proceedings, 

70 Fed. Reg. 3 (Jan. 3, 2005).........................................................................................................20 

iv
INTRODUCTION

In this action, Plaintiffs SpeechNow.org and several of its members and potential donors 

challenge the constitutionality of the Federal Election Campaign Act’s contribution limits and its 

administrative, organizational, and continuous reporting requirements as they apply to 

individuals who wish to band together and pool their funds for the purpose of speaking out 

against politicians they oppose and in favor of those they support. SpeechNow.org is an 

unincorporated association whose mission is to engage in express advocacy in favor of 

candidates who support the First Amendment and against those who do not. The individual 

plaintiffs are several of SpeechNow.org’s organizers, members, and potential donors who wish 

to operate SpeechNow.org, associate with one another and with others, and pool their funds to 

accomplish its mission. In short, Plaintiffs wish to exercise their First Amendment rights to 

associate and speak out about elections but are prevented from doing so by the laws they 

challenge. In this motion, Plaintiffs request that the Court designate certain constitutional 

questions in this case for certification to the Court of Appeals for the District of Columbia 

Circuit under 2 U.S.C. § 437h. 

Section 437h directs district courts to certify “all questions of constitutionality of [FECA] 

to the United States court of appeals for the circuit involved, which shall hear the matter sitting 

en banc.” 2 U.S.C. § 437h. Section 437h applies to three classes of plaintiffs: the FEC, national 

political party committees, and “any individual eligible to vote in an election for the office of 

President.” Id. Although SpeechNow.org is not an “individual,” the remaining plaintiffs are and 

David Keating, SpeechNow.org’s president and treasurer, has a sufficiently concrete stake in the 

outcome of SpeechNow.org’s claims to assert these claims in his own right. Accordingly, as set 

1
forth in greater detail below, the individual plaintiffs raise constitutional questions that should be

certified to the D.C. Circuit for en banc consideration under § 437h. 

In their Joint Scheduling Report, filed with the Court on June 6, 2008, the parties agreed 

to a bifurcated briefing schedule for the certification motion, with initial briefing now on the 

constitutional questions to be certified and briefing on proposed findings of fact to follow the 

close of discovery. According to that schedule, Plaintiffs’ motion and opening brief is due today, 

June 27, 2008; the FEC’s response is due on July 18, 2008; and the Plaintiffs’ reply is due on 

July 25, 2008. The parties will then file proposed findings of fact after discovery closes, with 

proposed findings due from both sides on October 3, 2008; responses due on October 24, 2008; 

and replies due on November 14, 2008. Unless the Court directs otherwise, Plaintiffs will follow 

this agreed-upon briefing schedule. 

FACTUAL BACKGROUND 

Although the parties will submit proposed findings of fact following the close of 

discovery, for the Court’s convenience Plaintiffs set forth the following summary of the relevant 

facts taken from Plaintiffs’ Complaint1

 and their Motion for Preliminary Injunction. 

Plaintiff David Keating created SpeechNow.org because he believes that the issue of free 

speech and the threats posed to it by campaign finance laws are vital to the future of the nation. 

Declaration of David Keating ¶ 3.2

 He wanted individuals who share this concern to be able pool 

their funds so they could speak out as loudly and effectively in favor of First Amendment rights 

as possible. Id. Because federal elections provide a rare opportunity both to impact public 

 1

 On June 20, 2008, Plaintiffs filed a motion for leave to file an amended complaint. The proposed amended

complaint makes clear that David Keating has a sufficiently concrete stake in SpeechNow.org’s claims in this action

to assert them in his own right. Today, the FEC filed a response stating that they consent to the motion. However, 

because the Court has not yet ruled on the motion, throughout this brief Plaintiffs cite to both their Complaint and 

their proposed Amended Complaint where relevant. 2

 All cites to declarations and exhibits in this brief are to those filed along with Plaintiffs’ motion for preliminary 

injunction.

2
policy—by affecting the political futures of the candidates who make it—and to influence public 

debate, David believes that running advertisements calling for the election or defeat of 

candidates based on their support for free speech and association is the most effective way for 

private citizens to protect those rights. Id. In David’s view, if an individual is permitted to 

spend unlimited amounts of money advocating the election or defeat of candidates for office, 

there is absolutely no reason why groups of individuals should be prevented from doing so. He 

created SpeechNow.org to give ordinary Americans the ability to band together to achieve these 

purposes. 

A. Structure and Operations of SpeechNow.org 

SpeechNow.org is an unincorporated nonprofit association organized under the District 

of Columbia Uniform Unincorporated Nonprofit Associations Act, D.C. Code section 29-971.01 

et seq., and registered as a “political organization” under section 527 of the Internal Revenue 

Code. See Keating Decl., Ex. D. SpeechNow.org was founded by individuals and will operate 

solely on private donations from individuals. Id., Ex. E, art. II. It cannot accept, directly or 

indirectly, any donations or anything of value from business corporations, labor organizations, 

national banks, federal government contractors, foreign nationals, or political committees. Id., 

art. X, § 1. Nor can it engage in business activities or offer to any donors or members any 

benefit that is a disincentive for them to disassociate themselves with SpeechNow.org on the 

basis of the organization’s position on a political issue. Id., art. VI, §§ 6, 8. 

SpeechNow.org is independent of any political candidates, committees, and parties, and 

its by-laws require it to operate wholly independently of any of these entities. Id., art. X, §§ 2-

10. SpeechNow.org cannot make contributions or donations of any kind directly or indirectly to 

any FEC-regulated candidate or political committee, and it cannot coordinate its activities, as 

3
defined in 2 U.S.C. §§ 441a(a)(7)(B) & C and 11 C.F.R. Part 109, with any candidates, national, 

state, district or local political party committees, or their agents. Id., art. VI § 10; art. X §§ 2-10. 

SpeechNow.org will solicit donations from individuals for funds to cover operating 

expenses and to buy public, political advertising to promote the election or defeat of candidates 

based on their positions on free speech and associational rights. See Keating Decl. ¶ 10. 

SpeechNow.org’s solicitations will inform potential donors that their donations may be used for 

political advertising that will advocate the election or defeat of candidates to federal office based 

on their support for First Amendment rights. Id. SpeechNow.org will also advise its donors that 

their donations are not tax deductible. Id. at ¶ 12. Some of SpeechNow.org’s solicitations will 

refer to particular candidates for federal office by name. Id. at ¶ 10. 

B. SpeechNow.org’s Planned Political Advertisements 

SpeechNow.org plans to run advertisements on television and in other media during the 

2008 election cycle and other future election cycles. Id. at ¶ 13. SpeechNow.org has prepared 

television scripts for four such advertisements. Id., Ex. F. Two of the advertisements call for the 

defeat of Dan Burton, a Republican Congressman currently running for reelection in the fifth 

district of Indiana. See id., Ex. F. SpeechNow.org intends to broadcast these advertisements in 

the fifth district of Indiana, where Representative Burton is running for office. Id. at ¶ 17. The 

other two advertisements call for the defeat of Mary Landrieu, a Democratic Senator currently 

running for reelection in Louisiana. See id., Ex. F. SpeechNow.org intends to broadcast these 

advertisements in Louisiana, where Senator Landrieu is running for office. Id. at ¶ 17. 

The production costs for these advertisements would be approximately $12,000. Id. at 

¶¶ 18-19; Ex. G; Declaration of Ed Traz ¶¶ 3-5. Ideally, David Keating would like to be able to 

run the ads enough times so that the target audience could view the ads at least ten times, but that 

4
would cost roughly $400,000. A less expensive option is simply to run the ads fewer times. 

Keating Decl. ¶¶ 18-19. SpeechNow.org knows of at least four individuals who are willing, 

ready, and able to donate funds that would allow it to produce and broadcast the ads enough 

times to have an impact on the audience in the relevant markets. Id. David Keating is willing to 

donate $5500. Id. at ¶ 25. Edward Crane is willing to donate $6,000. Declaration of Edward 

Crane ¶ 6. Richard Marder is willing to donate $5,500. Keating Decl. ¶ 25. Fred M. Young is 

willing to donate $110,000. Declaration of Fred Young ¶ 5. 

However, under the federal campaign finance laws, these individuals may not make their 

donations and SpeechNow.org may not accept them because they are all over the limits 

contained in 2 U.S.C. §§ 441a(a)(1)(C) and 441a(a)(3). SpeechNow.org also knows of two 

individuals who are willing to donate amounts under the contribution limits. Plaintiffs Brad 

Russo and Scott Burkhardt are each willing to donate $100 to SpeechNow.org. Declaration of 

Brad Russo ¶ 5; Declaration of Scott Burkhardt ¶ 5. Even though Plaintiffs Russo and Burkhardt 

could not themselves finance the production and broadcast of SpeechNow.org’s ads, they wish to 

associate with SpeechNow.org’s other supporters in order to amplify their voices and reach an 

audience far greater than they would be able to achieve without SpeechNow.org. Russo Decl. ¶ 

3; Burkhardt Decl. ¶ 3. However, because SpeechNow.org is unable to accept donations above 

$5000, it cannot operate at all and thus cannot accept donations even below the contribution 

limits. Keating Decl. ¶ 33. 

C. The Application of the Federal Election Campaign Act to SpeechNow.org 

Under the Federal Election Campaign Act (FECA), SpeechNow.org’s expenditures for 

advertisements would be “independent expenditures.” Independent expenditures are 

expenditures by a person “expressly advocating the election or defeat of a clearly identified 

5
candidate” that are “not made in concert or cooperation with or at the request or suggestion of 

such candidate, the candidate’s authorized political committee, or their agents, or a political party

committee or its agents.” 2 U.S.C. § 431 (17). SpeechNow.org will comply with all disclaimer 

and reporting obligations for those who make independent expenditures under the campaign 

finance laws. For instance, under 2 U.S.C. § 441d(a), SpeechNow.org’s advertisements and 

other communications will include its name, address and telephone number or World Wide Web 

address, along with a statement indicating that the communication was paid for by 

SpeechNow.org and was not authorized by any candidate or candidate’s committee. Under 2 

U.S.C. § 441d(d)(2), SpeechNow.org’s advertisements will include a statement indicating that 

SpeechNow.org is responsible for the content of the advertisement. And, pursuant to 2 U.S.C. 

§ 434(c), SpeechNow.org will file statements with the FEC reporting its donations and its 

donors’ identities as well as its expenditures. See Keating Decl., Ex. ¶¶ 22-24. 

At the same time, however, if SpeechNow.org accepts any of the donations that Plaintiffs 

Keating, Crane, or Young are prepared to make or produces and broadcasts the advertisements 

for which it has scripts, SpeechNow.org will immediately become a “political committee”—or 

PAC—and will be subject to all regulations that apply to PACs, including limits on 

contributions. 

A “political committee” is “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.” 2 U.S.C. § 431(4). 

A “contribution” includes “any gift, subscription, loan, advance, or deposit of money or anything 

of value made by any person for the purpose of influencing any election for Federal Office.” Id. 

§ 431(8). “Expenditure” includes “any purchase, payment, distribution, loan, advance, deposit, 

6
gift of money or anything of value, made by any person for the purpose of influencing any 

election for Federal office.” 2 U.S.C. § 431(9). 

Under these provisions, SpeechNow.org would become a political committee if it 

accepted any of the donations from Plaintiffs Keating, Crane, or Young because they would be 

made “for the purpose of influencing” a federal election. See Keating Decl. ¶ 25; Crane Decl. ¶ 

3; Young Decl. ¶ 2. Likewise, if SpeechNow.org spent the money necessary to produce and 

broadcast the ads for which it has scripts, it would also become a political committee because 

those expenditures would be made “for the purpose of influencing” a federal election. See

Keating Decl. ¶ 31. 

Political committees are subject to limits on the contributions they may accept. Two 

limits in particular would apply to SpeechNow.org and its donors. Under 2 U.S.C. 

§ 441a(a)(1)(C), SpeechNow.org and its donors would be subject to annual contribution limits of 

$5000 from any one person; and under 2 U.S.C. § 441a(a)(3), supporters of SpeechNow.org 

would be subject to biennial aggregate limits of $42,700 for contributions to political committees 

and parties and $108,200 for all contributions to candidates, political committees and party 

committees. Under these provisions, Plaintiffs Keating, Crane and Young cannot make the 

donations to SpeechNow.org that they are ready, willing, and able to make and SpeechNow.org 

cannot accept those donations. 

In addition to being subject to contribution limits, political committees are subject to 

burdensome organizational, administrative, and reporting requirements. These include, among 

other things, the obligation to file a statement of organization, appoint a treasurer, maintain 

records of all contributions and expenditures for three years, and file regular reports disclosing 

detailed information concerning the amounts of all contributions and expenditures, the identities 

7
of all contributors, persons who make loans or give rebates or refunds to the committee, persons 

who provide any dividend or interest to the committee, the identities of those to whom

expenditures are made, and the committees’ operating expenses, among other information. See 2 

U.S.C. §§ 432, 433, and 434(a). 

D. SpeechNow.org’s Advisory Opinion Request 

On November 19, 2007, SpeechNow.org filed a request for an advisory opinion (AOR) 

with the FEC pursuant to 2 U.S.C. § 437f. The request presented, in essence, three questions: 

(1) Must SpeechNow.org register as a political committee as defined in 2 U.S.C. § 431(4), and, if 

so, when? (2) Are donations to SpeechNow.org “contributions” (as defined in 2 U.S.C. 

§ 431(8)) subject to the limits described in 2 U.S.C. § 441a(a)(1)(C)? (3) Must an individual 

donor to SpeechNow.org count his donations to SpeechNow.org among the contributions 

applicable to his biennial aggregate contribution limit described in 2 U.S.C. § 441a(a)(3)? See

Declaration of Steven M. Simpson, Ex. 1. 

Under FEC rules, the Commission is required to issue a written advisory opinion within 

sixty days of accepting a request. 11 C.F.R. § 112.4(a). If it is unable to render an advisory 

opinion within that time, the rules state that the FEC “shall issue a written response stating that 

the Commission was unable to approve” the request by a required vote of four commissioners. 

Id. The FEC issued its response to SpeechNow.org’s AOR on January 28, 2008. Because the 

FEC was at the time without a full complement of commissioners, it lacked a quorum and thus 

could not issue an advisory opinion in response to SpeechNow.org’s request. Accordingly, 

under FEC rules, SpeechNow.org’s request was not approved. See Simpson Decl., Ex. 2. 

However, the general counsel’s office of the FEC issued a draft advisory opinion in 

response to SpeechNow.org’s AOR. Id., Ex. 3. Consistent with the analysis, above, the draft 

8
advisory opinion concluded that, among other things, the donations Plaintiffs Keating, Crane, 

and Young wish to make to SpeechNow.org would be “contributions” under 2 U.S.C. § 431(8); 

expenditures by SpeechNow.org on advertisements calling for the election or defeat of 

candidates for federal office would be “expenditures” under 2 U.S.C. § 431(9); SpeechNow.org 

has a “major purpose” of campaign activity; accepting the contributions noted above to fund its 

advertisements would make SpeechNow.org a “political committee” under § 431(4); as a 

political committee, SpeechNow.org would be subject to the contribution limits contained in 2 

U.S.C. §§ 441a(a)(1)(C) and 441a(a)(3) and the registration, administrative and reporting 

requirements for political committees contained in 2 U.S.C. §§ 432, 433, and 434(a). See

Simpson Decl., Ex. 3. In short, the draft advisory opinion concluded that the campaign finance 

laws prohibit SpeechNow.org from accepting donations that exceed the contribution limits in 2 

U.S.C. §§ 441a(a)(1)(C) and 441a(a)(3) to fund its advertisements. 

The draft advisory opinion was consistent with the FEC’s position on other groups that 

make independent expenditures. The FEC has consistently required such groups both to register 

as political committees and to abide by contribution limits. See Simpson Decl., Exs. 4-9. 

The application of the PAC requirements and contribution limits to SpeechNow.org 

places the organization and its supporters in an impossible position. If SpeechNow.org accepts 

the donations that Plaintiffs Crane, Young and Keating want to make, it immediately becomes a 

“political committee,” making those donations illegal and subjecting both SpeechNow.org and 

those who make the donations to civil and criminal liability. If it does not accept those 

donations, SpeechNow.org cannot produce and broadcast its advertisements and fulfill its 

mission. See Keating Decl. ¶ 26. Moreover, if it does not accept donations above the 

contribution limits, SpeechNow.org will not only be unable to produce the ads it currently wants 

9
to run, it will be prevented from obtaining the start-up funding necessary to begin operations and 

to allow it to raise additional funds to produce and broadcast additional advertisements. See id. 

at ¶ 27. 

ARGUMENT 

I. Procedures and Standards for Certification Under § 437h. 

In the D.C. Circuit’s opinion in Buckley v. Valeo, 519 F.2d 817 (D.C. Cir. 1975), the 

court established the procedures district courts should follow in cases brought under 2 U.S.C. 

§ 437h. They amount, in essence, to: (1) identify the constitutional issues raised by the 

complaint; (2) take evidence; (3) make factual findings; and (4) certify constitutional questions 

to the D.C. Circuit. Id. at 818. While § 437h does not indicate when a constitutional question is 

substantial enough to merit certification, the Supreme Court has stated that the provision does 

not require certification of questions that are frivolous or purely hypothetical. See Ca. Med. 

Ass’n v. FEC (CalMed), 453 U.S. 182, 192 n. 14. Lower courts have interpreted this to mean 

that district courts should make a threshold inquiry to determine whether constitutional questions 

sought to be certified under § 437h are frivolous or already settled questions of law. See, e.g., 

Khachaturian v. FEC, 980 F.2d 330, 331 (5th Cir. 1992); Goland v. United States, 903 F.2d 

1247, 1257-58 (9th Cir. 1990). See also Int’l Ass’n of Machinists and Aerospace Workers v. 

FEC, 678 F.2d 1092, 1096 (D.C. Cir. 1982) (stating that the district court certified questions 

under § 437h after finding the claims “‘neither frivolous nor so insubstantial as to warrant 

dismissal for failure to state a claim’”). 

As stated above, the parties are currently engaged in discovery and will submit proposed 

findings of fact after discovery is completed. In the following sections, Plaintiffs detail the 

10
questions they believe should be certified and the reasons that these questions easily meet the 

standard for certification under § 437h. 

II. Questions to be Certified. 

Plaintiffs assert five claims in their Complaint, but those claims can be categorized 

according to two fundamental constitutional questions: (1) whether the contribution limits 

contained in 2 U.S.C. §§ 441a(a)(1)(C) and 441a(a)(3) violate the First Amendment as they 

apply to SpeechNow.org and its members and supporters; and (2) whether the administrative, 

organizational, and continuous reporting requirements of 2 U.S.C. §§ 432, 433, and 434(a) 

violate the First Amendment as they apply to SpeechNow.org and its members and supporters. 

On the first of these questions, which covers counts one through three of Plaintiffs’ 

Complaint, Plaintiffs contend that the contribution limits violate the First Amendment by 

preventing SpeechNow.org and its members and supporters from pooling the funds necessary to 

associate and speak effectively. SpeechNow.org and its supporters will raise and spend funds 

only for independent expenditures—that is, for advertisements that expressly advocate the 

election or defeat of candidates but are made and financed independently of any candidates. See

2 U.S.C. § 431(17). SpeechNow.org will make no contributions to candidates or coordinate with 

candidates or political party committees, and SpeechNow.org is not a corporation and will accept 

no corporate or union funds. As a result, SpeechNow.org and its members and supporters raise 

no concerns about corruption that would justify limiting the funds that the group may raise and 

its supporters may donate in order to fund their political speech activities. While 

SpeechNow.org is not an individual and thus may not assert claims under § 437h, David Keating, 

its president and treasurer, administers its daily affairs, is authorized to accept contributions and 

make expenditures for the group, and is legally liable under the campaign finance laws for any 

11
violations it commits. See 2 U.S.C. § 437g(d). As a result, Mr. Keating can assert the same

claims in this action as SpeechNow.org. See, e.g., Athens Lumber Co., Inc. v. FEC, 689 F.2d 

1006, 1014 (11th Cir. 1982) (President of corporation had standing to raise corporate claims

under § 437h because he was “subject to the same threat of criminal and civil penalties [as the 

corporation] and therefore has equal incentive to litigate all the issues raised in the complaint.”). 

On the second of these questions, which covers counts four and five of Plaintiffs’ 

Complaint, Plaintiffs contend that the administrative, organizational, and continuous reporting 

requirements that apply to full-fledged PACs under 2 U.S.C. §§ 432, 433, and 434(a) violate the 

First Amendment as they apply to SpeechNow.org and its members and supporters—irrespective 

of SpeechNow.org’s “major purpose”—because they are unduly burdensome and not narrowly 

tailored. SpeechNow.org will—and, indeed, must—comply with the reporting and disclosure 

provisions of 2 U.S.C. § 434(c) that apply to anyone who makes independent expenditures under 

the campaign finance laws. These disclosures will satisfy the government’s legitimate interests 

in disclosure, and therefore the additional administrative, organizational, and continuous 

reporting requirements that apply to full-fledged PACs are unnecessary, unduly burdensome, and 

not narrowly tailored as they apply to SpeechNow.org. Here again, although SpeechNow.org 

cannot assert claims under § 437h, David Keating can assert the same claims as SpeechNow.org 

because, as its president and treasurer, he is legally obligated to comply with the continuous 

reporting provisions that apply to SpeechNow.org and is legally liable for any violations. 

Because the Plaintiffs’ claims fall into two general categories, the questions to be 

certified could be reduced to fewer than the five claims that Plaintiffs have asserted in their 

Complaint. However, for purposes of clarity, Plaintiffs have crafted the questions they believe

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should be certified under § 437h consistent with their claims, and have included one question for 

each claim in the Complaint. They are as follows: 

1. Whether the contribution limits contained in 2 U.S.C. §§ 441a(a)(1)(C) and 

441a(a)(3) violate the First Amendment by preventing David Keating, 

SpeechNow.org’s president and treasurer, from accepting contributions to 

SpeechNow.org in excess of the limits contained in §§ 441a(a)(1)(C) and 

441a(a)(3)? 

2. Whether the contribution limit contained in 2 U.S.C. § 441a(a)(1)(C) violates the 

First Amendment by preventing the individual plaintiffs from making 

contributions to SpeechNow.org in excess of $5000 per calendar year?

3. Whether the biennial aggregate contribution limit contained in 2 U.S.C. 

§ 441a(a)(3) violates the First Amendment by preventing Fred Young from

making contributions to SpeechNow.org that would exceed his individual biennial 

aggregate limit? 

4. Whether the organizational, administrative, and continuous reporting 

requirements contained in 2 U.S.C. §§ 432, 433, and 434(a) violate the First 

Amendment by requiring David Keating, SpeechNow.org’s president and 

treasurer, to register SpeechNow.org as a political committee, to adopt the 

organizational structure of a political committee, and to comply with the 

continuous reporting requirements that apply to political committees?

5. Whether 2 U.S.C. §§ 431(4) and 431(8) violate the First Amendment by requiring 

David Keating, SpeechNow.org’s president and treasurer, to register 

SpeechNow.org as a political committee and comply with the organizational and 

continuous reporting requirements for political committees before 

SpeechNow.org has made any expenditures or broadcast any advertisements? 

III. The Constitutional Questions Raised In This Case Are Appropriate For 

Certification Under § 437h. 

The questions listed above easily meet the standards for certification under § 437h. As 

stated above, these questions raise two fundamental constitutional issues: (1) whether 

contribution limits can constitutionally be applied to individuals who wish to pool their funds 

only to make independent expenditures, and who will not make contributions to candidates or 

coordinate their activities with candidates or party committees; and (2) whether the 

administrative, organizational, and continuous reporting requirements for PACs can 

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constitutionally be applied to those same individuals when they will otherwise report their 

activities under the disclosure provisions for independent expenditures. The Supreme Court has 

not squarely addressed either of these questions, and there is ample existing precedent to support 

Plaintiffs’ positions. As a result, the questions are clearly not frivolous and are thus subject to 

certification under § 437h. 

A. Plaintiffs’ Challenges to the Contribution Limits Raise Substantial 

Constitutional Questions. 

Plaintiffs’ challenge to the contribution limits that apply to political committees can be

reduced to two fundamental propositions. First, the independent expenditures that 

SpeechNow.org will make—that is, expenditures for speech that are not coordinated with any 

candidates or party committees—are core political speech that receive the highest protections 

under the First Amendment. See Buckley v. Valeo, 424 U.S. 1, 47-48 (1976); FEC v. Nat’l 

Conservative Political Action Comm., 470 U.S. 480, 493 (1985). Second, neither 

SpeechNow.org nor its members or supporters raise any concerns about corruption or its 

appearance because they will make no contributions to candidates, they will not coordinate their 

activities with candidates or party committees, and they will accept no corporate or union funds. 

Plaintiffs will only spend their money on independent expenditures, and only to that extent will 

they be entitled, if they prevail, to avoid the contribution limits contained in 2 U.S.C. 

§§ 441a(a)(1)(C) and 441a(a)(3). While the Supreme Court has recognized an interest in 

preventing circumvention of existing contribution limits, it has applied that interest only to 

uphold limits that apply to groups that either make direct contributions to candidates or are 

composed of or closely connected to candidates and party committees. See CalMed, 453 U.S. at 

201 (upholding contribution limits to PACs that make both direct contributions to candidates and 

independent expenditures); McConnell v. FEC, 540 U.S. 93, 142-61 (2003) (upholding limits on 

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soft-money contributions to political party committees that are comprised of officeholders); FEC 

v. Colo. Republican Fed. Campaign Comm’n, 533 U.S. 431, 465 (2001) (upholding limits on 

expenditures by political parties that are coordinated with candidates). The Court has never held 

that a group like SpeechNow.org that does not contribute to candidates, coordinate with them, or 

work closely with them raises concerns about corruption or circumvention that would justify 

limiting contributions to such groups. See Pls.’ Reply Br. Supp. Prelim. Inj. 9-13. Thus, 

regardless of what level of scrutiny applies to limits on contributions to SpeechNow.org, the 

government simply has no legitimate constitutional interest in limiting those contributions. See 

N.C. Right to Life, Inc. v. Leake, 525 F.3d 274, 293 (4th Cir. 2008) (stating that “it is implausible 

that contributions to independent expenditure political committees are corrupting” (internal 

quotation marks omitted)). See also Davis v. FEC, No. 07-230, 2008 WL 2520527, at *10 14 n.7 

(U.S. June 26, 2008) (stating that even if a provision of BCRA that raised contribution limits for 

opponents of self-funded candidates “were characterized as a limit on contributions rather than 

expenditures, it is doubtful whether it would survive”); Randall v. Sorrell, 548 U.S. 230, 248-53 

(2006) (recognizing corruption as the only interest that can support contribution limits and 

striking down limits under intermediate scrutiny as broader than necessary to achieve that 

interest). 

While there is certainly more to this argument—as Plaintiffs showed in their briefs in 

support of their motion for preliminary injunction—these two fundamental points are more than 

enough to demonstrate that Plaintiffs’ challenges to the contribution limits that apply to them are 

not frivolous or otherwise settled questions and thus that they easily meet the standard for 

certification under §437h. Indeed, the Fourth Circuit recently held that a state law limiting 

contributions to an independent expenditure committee—a group that pooled supporters’ funds 

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in order to spend them on speech expressly advocating the election or defeat of candidates—

violated the First Amendment on the same grounds on which SpeechNow.org challenges similar 

federal limits. See Leake, 525 F.3d at 293. The court concluded that the contribution limits 

inhibited the group’s ability to make independent expenditures and was not justified by any 

legitimate interest in preventing corruption or circumvention of existing contribution limits. Id. 

Thus, according to the court, the contribution limits could not be justified even under the lesser 

standard of scrutiny the Supreme Court has applied to contribution limits. Id. Accordingly, 

Plaintiffs’ challenges to the contribution limits that apply to funds donated to SpeechNow.org 

plainly raise substantial constitutional questions that are appropriate for certification under 

§ 437h. 

B. Plaintiffs’ Challenges to the Administrative, Organizational, and Continuous 

Reporting Requirements Raise Substantial Constitutional Questions. 

Plaintiffs’ challenges to the administrative, organizational, and continuous reporting 

requirements that apply to full-fledged PACs can also be reduced to a few simple propositions. 

First, the Supreme Court has recognized in several cases that the same requirements Plaintiffs are 

challenging here impose significant burdens on small groups and must be narrowly tailored to 

serve a compelling state interest. See FEC v. Wisc. Right to Life, Inc., 127 S. Ct. 2652, 2671 n.9 

(2007) (stating that “PACs impose well-documented and onerous burdens, particularly on small 

nonprofits”) (plurality opinion); Austin v. Mich. Chamber of Commerce, 494 U.S. 652, 658 

(1990) (stating that PAC requirements “burden expressive activity” and “must be justified by a 

compelling state interest”); FEC v. Mass. Citizens for Life (MCFL), 479 U.S. 238, 253-56 (1986) 

(same) (plurality opinion). Second, the Court has held that disclosure requirements that apply to 

PACs further two governmental interests: preventing corruption or its appearance and 

“provid[ing] the electorate with information.” Buckley, at 66-68. The interest in preventing 

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corruption is inapplicable to Plaintiffs regardless of SpeechNow.org’s “major purpose,” because 

Plaintiffs’ proposed activities would pose no threat of corruption. And FECA already provides a 

narrowly-tailored alternative to the requirements that apply to full-fledged PACs—the reporting 

requirements contained in 2 U.S.C. § 434(c) that apply to those who make independent 

expenditures—that will apply to SpeechNow.org and will satisfy the legitimate interest in 

providing the electorate with information. See MCFL, 479 U.S. at 262 (holding that 

independent-expenditure reporting under 2 U.S.C. § 434(c) “provide[s] precisely the information 

necessary to monitor MCFL's independent spending activity and its receipt of contributions.”). 

To be clear, Plaintiffs are not arguing in this case that they should be free of all disclosure 

obligations. Plaintiffs are arguing that they cannot constitutionally be required to register as a 

political committee and comply with the administrative, organizational, and continuous reporting 

obligations for political committees under 2 U.S.C. §§ 432, 433, and 434(a) simply because they 

will make, and their “major purpose” is to make, independent expenditures for advertisements 

that will expressly advocate the election or defeat of candidates. Even if Plaintiffs prevail in this 

case, SpeechNow.org will still be required to comply with the same disclosure provisions that 

apply to anyone who makes independent expenditures. The reports SpeechNow.org will have to 

file will include the identities of those who contribute more than $200 to any independent 

expenditures that SpeechNow.org makes, along with dates and contribution amounts, see 2 

U.S.C. § 434(c)(2)(C); the identities of those to whom expenditures of more than $200 are made 

along with dates and expenditure amounts, see id. at § 434(c)(1); the identity of any candidate 

who is the subject of the independent expenditure and whether the expenditure supports or 

opposes that candidate, see id. at § 434(c)(2)(A); and a certification that the independent 

expenditure is not made in cooperation, consultation, or concert, with, or at the request or 

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suggestion of, any candidate or any authorized committee or agent of such candidate, see id. at

§434(c)(2)(B). 

Plaintiffs’ position clearly raises substantial, non-frivolous constitutional questions 

appropriate for certification under § 437h. In MCFL, a plurality of the Supreme Court concluded

that the administrative, organizational, and continuous reporting obligations that applied to 

corporate PACs would require “very significant efforts” to comply with and constituted 

“substantial” restrictions on speech that “may create a disincentive for [voluntary political] 

organizations to engage in political speech.” See 479 U.S. at 252-54. These requirements led the 

plurality in MCFL to conclude that “it would not be surprising if at least some groups decided 

that the contemplated activity was simply not worth it.” Id. at 254-55. The Court has cited 

MCFL several times for the proposition that the requirements for PACs impose significant 

burdens on speech. See, e.g., Wisc. Right to Life, Inc., 127 S. Ct. at 2671 n.9 (plurality opinion); 

Austin, 494 U.S. at 658. Just this week, the Supreme Court reiterated that disclosure laws can 

impose serious burdens on speakers and therefore “the government interest must survive 

exacting scrutiny.” See Davis, 2008 WL 2520527, at *12. 

Accordingly, Plaintiffs’ challenge to the requirements that apply to full-fledged PACs in 

2 U.S.C. §§ 432, 433, and 434(a) and to the requirement that SpeechNow.org register as a PAC 

prior to making any expenditures presents substantial constitutional questions that are 

appropriate for certification under § 437h. 

C. The Individual Plaintiffs are Within the Class of Plaintiffs Who May Have 

Questions Certified Under § 437h. 

Section 437h applies to claims brought by “any individual eligible to vote in any election 

for the office of President.” Each of the individual plaintiffs in this case satisfies this 

requirement and is thus eligible to assert claims under § 437h. See Complaint ¶¶ 8-12; Amended 

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Complaint ¶¶ 8-12; Decl. of Edward H. Crane, III ¶ 1; Decl. of David Keating ¶ 1; Decl. of Fred 

M. Young, Jr. ¶ 1; Decl. of Scott Burkhardt ¶ 1; Decl. of Brad Russo ¶ 1. Moreover, all of their 

claims present ripe disputes that are appropriate for certification. The FEC has issued a draft 

advisory opinion making clear that SpeechNow.org meets the definition of “political committee” 

under the Act and that it and its potential donors are subject to the Act’s contribution limits and 

the administrative, organizational, and disclosure requirements that apply to PACs. See Simpson 

Decl., Ex. 1. In its Answer, the FEC admitted that the individual plaintiffs would be subject to 

prosecution if they made donations to SpeechNow.org in excess of the limits in 2 U.S.C. 

§§ 441a(a)(1)(C) or 441a(a)(3), and that SpeechNow.org would be subject to prosecution if it 

accepted such donations or failed to comply with the requirements that apply to PACs under 2 

U.S.C. §§ 432, 433, or 434(a). See Def.’s Answer ¶¶ 76-78. The Plaintiffs thus face a credible 

threat of prosecution that would be more than enough to establish standing to assert their 

constitutional challenges. See, e.g., Chamber of Commerce v. FEC, 69 F.3d 600, 603-04 (D.C. 

Cir. 1995) (stating that a party raising First Amendment claims has standing to bring a preenforcement challenge “if First Amendment rights are arguably chilled, so long as there is a 

credible threat of prosecution”). 

While SpeechNow.org itself is not an “individual,” David Keating, its president and 

treasurer, has a sufficiently concrete stake in SpeechNow.org’s claims to allow him to assert

those claims in his own right under § 437h. Mr. Keating has primary administrative 

responsibilities at SpeechNow.org, he was instrumental in creating the scripts for the ads it 

intends to broadcast, and he is authorized to accept contributions and make expenditures. See

Complaint ¶ 8; Amended Complaint ¶¶ 8, 20; Keating Decl. ¶ 4. Moreover, under the Act and 

the FEC’s policies, Mr. Keating, as SpeechNow.org’s treasurer, is liable for any violations 

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SpeechNow.org might commit. See 2 U.S.C. 437g(d) (extending criminal liability to “Any 

person who knowingly and willfully commits a violation of any provision of [FECA] which 

involves the making, receiving, or reporting of any contribution, donation or expenditure”) 

(emphasis added); see also Statement of Policy Regarding Treasurers Subject to Enforcement 

Proceedings, 70 Fed. Reg. 3, 6 (Jan. 3, 2005) (stating that a political committees’ treasurer is 

liable in his official capacity for the committees’ violations and can be held liable in his personal 

capacity where information indicates that he knowingly and willfully violated the Act or 

regulations). Mr. Keating can therefore assert SpeechNow.org’s claims under 437h. See

CalMed, 453 U.S. at 188 n.6 (stating that individual members and officers of the plaintiff 

political committees “have a sufficiently concrete stake in this controversy to establish standing 

to raise the constitutional claims at issue”); Athens Lumber Co., Inc. v. FEC, 689 F.2d 1006, 

1014 (11th Cir. 1982) (President of corporation had standing to raise corporate claims under 

§ 437h because he was “subject to the same threat of criminal and civil penalties [as the 

corporation] and therefore has equal incentive to litigate all the issues raised in the complaint.”). 

CONCLUSION 

For the foregoing reasons, Plaintiffs respectfully request that this Court enter an order

designating the questions listed in section II, above, as the questions to be certified to the D.C. 

Circuit under 2 U.S.C. § 437h pending findings of fact to be issued after the close of discovery. 

Dated: June 27, 2008 

 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) 

Paul M. Sherman (DC Bar No. 978663) 

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INSTITUTE FOR JUSTICE

901 N. Glebe Road, Suite 900 

Arlington, VA 22203 

Tel: (703) 682-9320 

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

bgall@ij.org, psherman@ij.org 

Stephen M. Hoersting* 

Bradley A. Smith* 

CENTER FOR COMPETITIVE POLITICS

124 W. Street South, Suite 201 

Alexandria, VA 22314 

Tel: (703) 894-6800 

Email: shoersting@campaignfreedom.org, 

BSmith@law.capital.edu 

Attorneys for Plaintiffs

 

 * Admitted Pro Hac Vice 

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