UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

 

 ) 

SPEECHNOW.ORG, et al., ) 

 ) 

 Plaintiffs, ) 

 ) 

 v. ) Civ. No. 08-248 (JR) 

 ) 

FEDERAL ELECTION COMMISSION, ) OPPOSITION TO 

 ) PRELIMINARY INJUNCTION

 Defendant. ) 

____________________________________) 

DEFENDANT FEDERAL ELECTION COMMISSION’S MEMORANDUM 

IN OPPOSITION TO PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION 

Thomasenia P. Duncan (D.C. Bar No. 424222) 

General Counsel 

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

Associate General Counsel 

Kevin Deeley 

Assistant General Counsel 

Robert W. Bonham III (D.C. Bar No. 397859) 

Senior Attorney 

Steve N. Hajjar 

Esa L. Sferra 

Attorneys 

COUNSEL FOR DEFENDANT 

March 5, 2008 FEDERAL ELECTION COMMISSION 

Case 1:08-cv-00248-JR Document 13 Filed 03/05/2008 Page 1 of 54
TABLE OF CONTENTS 

 Page 

I. FACTUAL BACKGROUND ...........................................................................1 

A. The Federal Election Commission.........................................................1 

B. Plaintiffs ...................................................................................................2 

C. SpeechNow’s Advisory Opinion Request..............................................3 

II. STATUTORY AND REGULATORY PROVISIONS ..................................4 

A. Contributions and Expenditures ...........................................................4 

B. Political Committees ...............................................................................4 

C. Contribution Limits ................................................................................5 

D. Independent Expenditures .....................................................................6

ARGUMENT..................................................................................................................7 

III. A PRELIMINARY INJUNCTION IS AN EXTRAORDINARY 

REMEDY THAT REQUIRES THE PLAINTIFFS TO MEET 

A HEAVY BURDEN ........................................................................................7 

IV. PLAINTIFFS CANNOT DEMONSTRATE A SUBSTANTIAL 

LIKELIHOOD OF SUCCESS ON THE MERITS .......................................8 

A. The Act’s Limit on Contributions to Political Committees is 

Constitutional As Applied ....................................................................8 

1. The Contribution Limits At Issue Are Subject to 

Intermediate Scrutiny...............................................................8 

2. The Supreme Court Has Made Clear That Limitations 

on Contributions to Political Committees that Purport 

to Make Only Independent Expenditures Are 

Constitutional ..........................................................................13 

Case 1:08-cv-00248-JR Document 13 Filed 03/05/2008 Page 2 of 54
3. As Applied to SpeechNow, the Act’s Limit on Contributions 

to Political Committees is Closely Drawn to Match 

Sufficiently Important Governmental Interests...................18 

a. Corruption and the Appearance of Corruption........18 

b. Distorting Effects of Immense Aggregations 

 of Wealth.....................................................................23 

c. Unlimited Contributions Would Undercut the Act’s 

 Disclaimer Requirements ...........................................26 

 

B. The Act’s Biennial Aggregate Contribution Limits are Closely 

 Drawn to Match Sufficiently Important Governmental Interests 

 As Applied..............................................................................................27 

 C. The Act’s Reporting Requirements For Political Committees 

 are Substantially Related to an Important Government Interest ....28 

 V. PLAINTIFFS FAIL TO DEMONSTRATE IRREPARABLE 

 INJURY ..........................................................................................................31

 A. Plaintiffs’ Alleged Injuries Are Neither Actual Nor Certain............32 

 B. Plaintiffs Face No Imminent Injury ....................................................36 

 C. None of Plaintiffs’ Alleged Harms Is Beyond Remediation ..............38 

 D. A Preliminary Injunction Temporarily Barring Enforcement 

 Of The Act Could Not Prevent Plaintiffs’ Alleged Harm .................39 

VI. THE RELIEF REQUESTED BY PLAINTIFFS WOULD HARM 

THE COMMISSION AND UNDERCUT THE PUBLIC INTEREST......41 

CONCLUSION ........................................................................................................44 

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TABLE OF AUTHORITIES 

 Page 

Cases 

Adarand Constr., Inc. v. Pena, 515 U.S. 200 (1995)....................................................29 

Athens Lumber Company, Inc. v. FEC, 689 F.2d 1006 (11th Cir. 1983) ........................8 

Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990) ...............................23 

Bread Political Action Committee v. FEC, 455 U.S. 577 (1982) ...................................8 

Bronx Household of Faith v. Bd. of Educ., 331 F.3d 342 (2d Cir. 2003) .....................32 

Buckley v. Valeo, 519 F.2d 817 (D.C. Cir. 1975) ...........................................................8 

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

California Medical Ass’n v. FEC, 435 U.S. 182 (1981)........................................passim 

Chaplaincy of Full Gospel Churches, 454 F.3d 290 (D.C. Cir. 2006) .................passim 

Christian Civic League of Maine, Inc., v. FEC, 433 F. Supp. 2d 81 (D.D.C. 2006)....43 

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

 District of Columbia, 919 F.2d 148 (D.C. Cir. 1990)..............................................36 

Citizens Against Rent Control v. City of Berkeley, 454 U.S. 290 (1981) .............1, 3, 20 

CityFed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738 

 (D.C. Cir. 1995) .............................................................................................7, 36, 41 

Cobell v. Norton, 391 F.3d 251 (D.C. Cir. 2004) ...........................................................7 

Colorado Republican Federal Campaign Committee v. FEC, 578 U.S. 604 (1996) ...20 

Committee on Jobs Candidate Advocacy Fund v. Herrera, 

 No. 07-03199, 2007 WL 2790351 (N.D. Cal. Sept. 20, 2007)................................12 

Communist Party v. Subversive Activities Control Bd., 367 U.S. 1 (1961)..................31 

Daggett v. Comm’n on Gov’tal Ethics and Election Practices, 

 205 F.3d 445 (1st Cir. 2000).....................................................................................33 

 

Donaldson v. United States Dep’t of Labor, 930 F.2d 339 (4th Cir. 1991)..................40 

iii

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Edgar v. MITE Corp., 457 U.S. 624 (1982) ................................................................40 

Elrod v. Burns, 427 U.S. 347 (1976) ......................................................................35, 36 

FEC v. Beaumont, 539 U.S. 146 (2003) .......................................................9, 10, 23, 25 

FEC v. Cal. Med. Ass’n, 502 F. Supp. 196 (N.D. Cal. 1980).......................................17 

FEC v. Colorado Republican Federal Campaign Comm,, 533 U.S. 431 

 (2001).............................................................................................................9, 10, 15 

FEC v. Malenick, No. 02-1237, 2005 WL 588222 (D.D.C. Mar. 7, 2005) ..................16 

FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. 238 (1986) .........................5, 18 

FEC v. National Conservative Political Action Committee, 

 470 U.S. 480 (1985)...........................................................................................10, 20 

FEC v. Wisconsin Right to Life, Inc., 127 S. Ct. 2652 (2007) ...............................18, 20 

First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978).............................13, 20 

FTC v. Standard Oil Co. of Cal., 449 U.S. 232 (1980) ................................................38 

Harper v. Virginia Dep’t of Taxation, 509 U.S. 86 (1993) ....................................39, 40 

Hicks v. Bush, 397 F. Supp. 2d 36 (D.D.C. 2005) ........................................................36 

Hohe v. Casey, 868 F.2d 69 (3d Cir. 1989) ..................................................................36 

International Association of Machinists and Aerospace Workers v. FEC, 

 678 F.2d 1092 (D.C. Cir. 1982).................................................................................8 

Jacobus v. Alaska, 338 F.3d 1095 (9th Cir. 2003).........................................................33 

James B. Beam Distilling Co. v. Georgia, 501 U.S. 529 (1991) ............................39, 40 

Khachaturian v. FEC, 980 F.2d 330 (5th Cir. 1992) (en banc).......................................8 

Lincoln Club of Orange County v. City of Irvine, 292 F.3d 934 (9th Cir. 2002) ..........12 

Mazurek v. Armstong, 520 U.S. 968 (1997) ...................................................................7 

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

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

iv

Case 1:08-cv-00248-JR Document 13 Filed 03/05/2008 Page 5 of 54
Mobile Republican Assembly v. United States, 353 F.3d 1357 (11th Cir. 2003)...........31 

Montana Right To Life Ass’n. v. Eddleman, 343 F.3d 1085 (9th Cir. 2003).................33 

New Motor Vehicle Bd. of Calif. v. Orrin W. Fox Co., 434 U.S. 1345 

 (1977)......................................................................................................................43 

Nixon v. Shrink Missouri Government PAC, 528 U.S. 377 (2000) ..........................9, 10 

NTEU v. United States, 927 F.2d 1253 (D.C. Cir. 1991)........................................31, 36 

OAKPAC v. City of Oakland, No. 06-6366, 2007 Lexis 73736 

 (N.D. Cal. Oct. 19, 2006)........................................................................................12 

Perot v. FEC, 97 F.3d 553 (D.C. Cir. 1996).................................................................37 

Piscottano v. Murphy, 317 F. Supp. 2d 97 (D. Conn. 2004) ........................................36 

Randall v. Sorrell, 548 U.S. 230 (2006) .........................................................................9 

Renegotiation Board v. Bannercraft Clothing Co., 415 U.S. 1 (1974).........................38 

Sears Roebuck & Co. v. NLRB, 473 F.2d 91 (D.C. Cir. 1973).....................................38 

Suster v. Marshall, 149 F.3d 523 (6th Cir. 1998).........................................................40 

Turner Broad. Sys., Inc. v. FCC, 507 U.S. 1301 (1993).................................................7 

United States v. Int’l Union of Operating Eng’rs, Local 701, 638 F.2d 1161 

 (9th Cir. 1979)..........................................................................................................41 

United States v. Tonry, 433 F.Supp. 620 (E.D. La. 1977) ............................................41 

Univ. of Tex. v. Camenisch, 451 U.S. 390 (1981)...........................................................7 

Veitch v. Danzig, 135 F. Supp. 2d 32 (D.D.C. 2001) .....................................................7 

Wagner v. Taylor, 836 F.2d 566 (D.C. Cir. 1987)..................................................31, 36 

Walters v. Nat’l Ass’n of Radiation Survivors, 468 U.S. 1323 (1984) ...........................8 

Wisconsin Gas Co. v. FERC, 758 F.2d 669 (D.C. Cir. 1985).....................32, 36, 37, 38 

Wisconsin Right to Life v. FEC, Inc., Civ. No. 04-1260, 2004 WL 3622736 

 (D.D.C. Aug. 17, 2004)............................................................................................36 

 

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Wisconsin Right to Life v. FEC, Inc., Civ. No. 04-1260, 2006 WL 2666017 

 (D.D.C. Sept. 14, 2006) .........................................................................37, 38, 42, 43 

Wisconsin Right to Life, Inc. v. FEC, 542 U.S. 1306 (2004)........................................42 

Statutes and Regulations 

 

Federal Election Campaign Act of 1971, as amended, Pub. L. No. 92-225, 

 86 Stat 3. ................................................................................................................1, 42 

Federal Election Campaign Act Amendments of 1974, Pub. L. No. 93-443, 

 88 Stat. 1236 ..............................................................................................................42 

Federal Election Campaign Act Amendments of 1976, Pub. L. No. 94-283, 

 90 Stat. 475 ................................................................................................................42 

2 U.S.C. § 431(4) ..........................................................................................................41 

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

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

2 U.S.C. § 431(9)(A)(i)...................................................................................................4 

2 U.S.C. § 431(11) ..........................................................................................................5 

2 U.S.C. § 431(17) ......................................................................................................3, 6 

2 U.S.C. § 432.................................................................................................................4 

2 U.S.C. § 433...............................................................................................4, 28, 29, 41 

2 U.S.C. § 434...............................................................................................4, 28, 29, 41

2 U.S.C. § 434(a)(4)........................................................................................................4 

2 U.S.C. § 434(b)(4)(H)(iii)............................................................................................5 

2 U.S.C. § 434(b)(6)(B)(iii) ............................................................................................5 

2 U.S.C. § 434(c) ......................................................................................................6, 17 

2 U.S.C. § 434(c)(2)(A)-(C) ...........................................................................................6 

2 U.S.C. § 434(g) ............................................................................................................6 

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2 U.S.C. § 437c(c).....................................................................................................4, 38 

2 U.S.C. § 437c(b)(1)..........................................................................................1, 37, 41 

2 U.S.C. § 437d(a)(7)..................................................................................................2, 4 

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

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

2 U.S.C. § 437g(a)(2)....................................................................................................38 

2 U.S.C. § 437g(a)(4)....................................................................................................38 

2 U.S.C. § 437g(a)(4)-(6)..............................................................................................38 

2 U.S.C. § 437g(a)(6)....................................................................................................38 

2 U.S.C. § 437g(d) ........................................................................................................41 

2 U.S.C. § 437h...............................................................................................................8 

2 U.S.C. § 438(a)(8)........................................................................................................2 

2 U.S.C. § 438(d) ............................................................................................................2 

2 U.S.C. § 441a(a)(1)(A)-(D) .........................................................................................5 

2 U.S.C. § 441a(a)(1)(C).......................................................................................5, 8, 42 

2 U.S.C. § 441a(a)(3)(c) ...............................................................................................28 

2 U.S.C. § 441a(a)(3)(B)...............................................................................................42 

2 U.S.C. § 441a(a)(7)(B).................................................................................................3 

2 U.S.C. § 441b.............................................................................................................24 

2 U.S.C § 441d(a) ...........................................................................................................6 

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

2 U.S.C. § 441d(d)(2) .....................................................................................................6 

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2 U.S.C. § 441i(a)(1).....................................................................................................11 

26 U.S.C. § 527(c) ........................................................................................................25 

26 U.S.C. § 527(e)(2)....................................................................................................25 

26 U.S.C. § 2501...........................................................................................................25 

28 U.S.C. § 516.............................................................................................................37 

11 C.F.R. Part 109...........................................................................................................3 

11 C.F.R. § 110.11(a)(1).................................................................................................5 

11 C.F.R. § 110.11(a)(2)...............................................................................................30

District of Columbia Uniform Unincorporated Nonprofit Associations Act, 

 D.C. Code § 29-971.01 ...............................................................................................2 

 D.C. Code § 29-301.05(4)-(5).....................................................................................2 

 D.C. Code § 29-971.04-05 .......................................................................................25 

Section 527 of the Internal Revenue Code .........................................................2, 25, 32 

Cable Television Consumer Protection and Competition Act of 1992...........................7 

Miscellaneous 

http://www.clubforgrowth.org/keating.php ....................................................................2 

http://saos.nictusa.com/aodocs/959641.pdf ...............................................................3, 4 

http://saos.nictusa.com/aodocs/960630.pdf. ...................................................................4 

http://www.SpeechNow.org/supportpage .....................................................................32 

National Party Financial Activity Through the End of the Election Cycle: 

http://www.fec.gov/press/press2007/partyfinal2006/demfederalye06.pdf...................30 

National Party Financial Activity Through the End of the Election Cycle: 

http://www.fec.gov/press/press2007/partyfinal2006/repfederalye06.pdf.....................30 

Summary of PAC Activity 1990-2006: 

http://www.fec.gov/press/press2007/20071009pac/sumhistory.pdf ............................30 

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ix

Summary of PAC Independent Expenditures 2005-2006: 

http://www.fec.gov/press/press2007/20071009pac/indepexp2006.pdf .......................30 

Edward B. Foley, The “Major Purpose” Test: Distinguishing Between Election- 

 Focused and Issue-Focused Groups, 31 N. Ky. L. Rev. 341, 346 (2004) ..............23 

Howard Jarvis Taxpayers Association, About Us, http://www.hjta.org/aboutus...........2 

Jim Kuhnhenn, FEC Recommendation Could End Up in Court, USA Today 

 (Jan. 22, 2008)..........................................................................................................35 

Jon Coupal, Los Angeles the Trendsetter, Howard Jarvis Taxpayer Ass’n Cal. 

Commentary, Vol. I, Issue 14, at 1-2 (May 5, 2003), available at 

http://hjta.webcommanders.com/HJTACommentary014.pdf ................................22 

On Message, Los Angeles Times (Feb. 15, 2008)........................................................35 

Suit Aims To Ease Campaign Funding Limit, The Washington Times 

 (Feb. 15, 2008).........................................................................................................35 

Suit Could Unleash Surge Of Money In 2008 Presidential Race, The New York 

 Sun (Feb. 15, 2008)..................................................................................................35 

Susan Crabtree, New 527 Group Takes Aim At Campaign Contribution Limits, 

 The Hill, Dec. 3, 2007................................................................................................2 

Unfettered Speech, Now, Washington Post (Feb 16, 2008).........................................35 

Case 1:08-cv-00248-JR Document 13 Filed 03/05/2008 Page 10 of 54
SpeechNow.org (“SpeechNow”) and five individual plaintiffs ask the Court to declare 

unconstitutional provisions of law that have been in place for over thirty years so that they can 

finance candidate advertisements with massive contributions and with less public disclosure. 

The Federal Election Commission (“Commission”) opposes plaintiffs’ Motion for Preliminary 

Injunction because, as applied to plaintiffs, the Federal Election Campaign Act’s longtime 

contribution limits are closely drawn to match important interests in preventing corruption and 

its appearance. Similarly, the disclosure to the public that plaintiffs seek to avoid substantially 

relates to governmental interests in providing information to voters, deterring corruption and its 

appearance, and gathering data to detect violations of the contribution limits. Plaintiffs cannot, 

therefore, meet their burden of demonstrating a substantial likelihood of success on the merits. 

Plaintiffs also cannot demonstrate any irreparable harm that would arise in the absence of an 

injunction, as they may engage in all the candidate advocacy they intend by appealing to 

additional donors as a group or, in the case of SpeechNow’s large-dollar contributor, by 

financing advertisements on his own. The Commission and the public have strong interests in 

continued enforcement of the challenged statutory provisions in order to minimize corruption or 

the appearance of corruption and to have an informed electorate. 

I. FACTUAL BACKGROUND 

A. The Federal Election Commission 

The Commission is the independent agency of the United States with exclusive 

jurisdiction over the administration, interpretation, and civil enforcement of the Federal Election 

Campaign Act of 1971, as amended (“Act” or “FECA”), 2 U.S.C. §§ 431-55, and other statutes. 

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

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

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provisions of [the] Act,” 2 U.S.C. §§ 437d(a)(8), 438(a)(8),(d); and to issue written advisory 

opinions concerning the application of the Act and Commission regulations to any specific 

proposed transaction or activity, 2 U.S.C. §§ 437d(a)(7), 437f. 

B. Plaintiffs 

Plaintiff SpeechNow is an unincorporated nonprofit association organized under the 

District of Columbia Uniform Unincorporated Nonprofit Associations Act, D.C. Code 

§ 29-971.01, and section 527 of the Internal Revenue Code. (Compl. ¶ 7.) Plaintiffs David 

Keating and Edward H. Crane, III, are organizers and members of SpeechNow, and Mr. Keating 

is SpeechNow’s President and Treasurer. (Keating Decl. ¶ 2 & Exhs. A, B.) Mr. Keating is also 

the executive director of Club for Growth (id. ¶ 27), an advocacy group with a well-financed 

affiliated political committee. See http://www.clubforgrowth.org/keating.php (visited Mar. 1, 

2008). Mr. Crane is also the President of the Cato Institute, an established advocacy group that 

has been in existence for over thirty years. (Crane Decl. ¶ 8.) Jon Coupal, one of SpeechNow’s 

named organizers and initial members, is the President of the Howard Jarvis Taxpayer 

Association, a California taxpayer organization with more than 250,000 supporters. Howard 

Jarvis Taxpayers Association, About Us, http://www.hjta.org/aboutus (visited Feb. 26, 2008). 

Plaintiffs Fred M. Young, Jr., Brad Russo, and Scott Burkhardt, as well as Messrs. Keating and 

Crane, are prospective donors to SpeechNow. (Compl. ¶¶ 8-12.) 

SpeechNow’s purpose is “expressly advocating the election of candidates who support 

rights to free speech and association and the defeat of candidates who oppose those rights, 

particularly by supporting campaign finance laws.” (Compl. ¶ 8.) It was also formed in part to 

create a test case for challenging certain provisions of FECA. Susan Crabtree, New 527 Group 

Takes Aim At Campaign Contribution Limits, The Hill, Dec. 3, 2007. It seeks to accept 

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contributions from individuals in unlimited amounts to pay for its candidate advocacy and 

administrative costs. (Compl. ¶¶ 17, 82-88.) It alleges that it will not coordinate any of its 

expenditures, within the meaning of 2 U.S.C. § 441a(a)(7)(B) and 11 C.F.R. Part 109, with 

candidates, political parties, or other committees. (Compl. ¶ 16.) It also alleges that it will not 

accept any funds from candidates, political committees, corporations, labor organizations, 

national banks, Federal government contractors, or foreign nationals. (Compl. ¶ 15.) 

The plaintiff donors seek to influence federal elections by contributing money to 

SpeechNow so that it can make “independent expenditures” as defined in 2 U.S.C. § 431(17). 

(Compl. ¶ 27.) SpeechNow will not make contributions to candidates and other political 

committees. (Compl. ¶ 16.) It will expressly advocate the election or defeat of candidates 

through advertisements on television and other media in the current election cycle and in future 

election cycles. (Compl. ¶ 20.) Plaintiffs allege that they have prepared four video and audio 

political advertisement scripts and wish to spend over $120,000 initially to produce and air the 

advertisements. (Compl. ¶¶ 20-25.) Plaintiffs plan to comply with FECA’s disclaimer and 

reporting requirements for independent expenditures made by groups other than political 

committees, but do not wish to comply with the full disclosure requirements applicable to 

political committees. (Compl. ¶¶ 28-30); see infra sections II.B, II.D. 

C. SpeechNow’s Advisory Opinion Request 

In November 2007, SpeechNow requested an advisory opinion pursuant to 2 U.S.C. 

§ 437(f) concerning the application of the Act and Commission regulations to SpeechNow’s 

status as a political committee and funds received by SpeechNow. (See Simpson Decl. Exh. 1.)1

 

 

1

 Plaintiffs submitted to the Court a copy of their advisory opinion request without the 

accompanying exhibits. (See Simpson Decl. Exh. 1.) A complete copy of the advisory opinion 

request is available at http://saos.nictusa.com/aodocs/959641.pdf. SpeechNow also submitted 

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The Commission, which currently has two voting members, was unable to issue an advisory 

opinion to SpeechNow because issuance of an advisory opinion requires the affirmative vote of 

four members. See 2 U.S.C. §§ 437c(c), 437d(a)(7); (Simpson Decl. Exh. 2). 

II. STAUTORY AND REGULATORY PROVISIONS 

A. Contributions and Expenditures 

The Act defines “contribution” to include “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.” 2 U.S.C. § 431(8)(A)(i). “Expenditure” is defined to include “any 

purchase, payment, distribution, loan, advance, deposit, or 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)(A)(i). 

B. Political Committees 

 The Act defines “political committee” as “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). Any organization that qualifies as a political committee must register with 

the Commission and file periodic reports for disclosure to the public of all receipts and 

disbursements to or from a person in excess of $200 in a calendar year (and in some instances, of 

any amount), as well as total operating expenses and cash on hand. See 2 U.S.C. §§ 433-34. 

The Act requires political committees to file either monthly reports, or on the following 

schedule: quarterly reports during election years, a pre-election report no later than the 12th day 

before an election, a post-election report within 30 days after an election, and reports every six 

 

supplements, available at http://saos.nictusa.com/aodocs/959641.pdf and 

http://saos.nictusa.com/aodocs/960630.pdf. 

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months during non election years. 2 U.S.C. § 434(a)(4); see FEC v. Massachusetts Citizens for 

Life, Inc. (“MCFL”), 479 U.S. 238, 253-54 (1986). Political committees must disclose additional 

information about specific “independent expenditures” they make, see infra section II.D., in their 

regularly scheduled reports, including the date, amount, and candidates supported or opposed for 

each independent expenditure aggregating in excess of $200 in a calendar year. 

2 U.S.C. § 434(b)(4)(H)(iii),(6)(B)(iii). In addition, political committees must identify 

themselves through “disclaimers,” see infra section II.D., on all of their general public political 

advertising, on their websites, and in mass emails. 11 C.F.R. § 110.11(a)(1). 

In Buckley v. Valeo, 424 U.S. 1, 79 (1976), the Supreme Court found that the phrase “for 

the purpose of . . . influencing” had “vagueness problems” because it had the potential to 

encompass “both issue discussion and advocacy of a political result.” The Court also narrowly 

construed the term “political committee,” holding that a group will not be deemed a political 

committee under the Act unless, in addition to crossing the $1,000 statutory threshold of 

contributions or expenditures, the organization is “under the control of a candidate” or its “major 

purpose ... is the nomination or election of a candidate.” Id. 

C. Contribution Limits 

In addition to limiting the amount a person may contribute to a candidate, a candidate’s 

authorized committee, or a political party committee, FECA limits the amount that a person may 

contribute to “any other political committee.” 2 U.S.C. § 441a(a)(1)(A)-(D). Persons, including 

individuals, may not contribute more than $5,000 per calendar year to such “other” political 

committees. See 2 U.S.C. §§ 431(11), 441a(a)(1)(C). 

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D. Independent Expenditures

The Act defines “independent expenditure” to mean an expenditure by a person 

“expressly advocating the election or defeat of a clearly identified candidate; and . . . that is 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). 

Persons who are not a political committee are not required to file reports of all their 

receipts and disbursements. Generally, they are only required to file reports for each quarter of 

the year in which they have made independent expenditures aggregating in excess of $250 during 

a calendar year. 2 U.S.C. § 434(c). Each quarterly report contains information regarding the 

independent expenditure and each person who made a contribution in excess of $200 “for the 

purpose of furthering an independent expenditure.” 2 U.S.C. § 434(c)(2)(A)-(C). All persons, 

including political committees, who make independent expenditures shortly before election day 

that exceed certain thresholds must disclose information about the expenditures to the 

Commission within 24 or 48 hours. 2 U.S.C. § 434(g). 

Every person, including a political committee, that makes independent expenditure 

communications through certain media must include in each such communication a disclaimer 

providing information about who paid for the communication. See 2 U.S.C § 441d(a). 

Disclaimers are required on express advocacy communications made through a broadcasting 

station, newspaper, magazine, outdoor advertising facility, or mailing, or through any other type 

of general public political advertising. Id. The disclaimer must provide the name and contact 

information for the maker of the independent expenditure, and state whether the communication 

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

6

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Radio or television independent expenditures must contain an additional oral and visual 

disclaimer stating that the person paying for the communication “is responsible for the content of 

this advertising.” 2 U.S.C. § 441d(d)(2). 

ARGUMENT

III. A PRELIMINARY INJUNCTION IS AN EXTRAORDINARY REMEDY THAT 

REQUIRES THE PLAINTIFFS TO MEET A HEAVY BURDEN 

In seeking a preliminary injunction, plaintiffs bear a heavy burden to establish that they 

are entitled to such relief. To prevail, they must demonstrate: (1) a “substantial likelihood of 

success on the merits”; (2) that they would suffer irreparable harm if an injunction is not granted; 

(3) that an injunction would not cause substantial injury to other parties; and (4) that the public 

interest would be furthered by the injunction. CityFed Fin. Corp. v. Office of Thrift Supervision, 

58 F.3d 738, 746 (D.C. Cir. 1995). “A preliminary injunction is an extraordinary remedy that 

should be granted only when the party seeking the relief, by a clear showing, carries the burden 

of persuasion.” Cobell v. Norton, 391 F.3d 251, 258 (D.C. Cir. 2004) (citing Mazurek v. 

Armstrong, 520 U.S. 968, 972 (1997)). 

Plaintiffs shoulder a particularly heavy burden here because the requested relief “would 

alter, not preserve, the status quo.” Veitch v. Danzig, 135 F.Supp.2d 32, 35 (D.D.C. 2001). “The 

purpose of a preliminary injunction is merely to preserve the relative positions of the parties until 

a trial on the merits can be held.” Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981). 

Plaintiffs, however, seek to alter the relative position of the parties while their request for 

permanent relief is pending by preventing the Commission from enforcing provisions of FECA 

that have been in effect for over thirty years. Turner Broad. Sys., Inc. v. FCC, 507 U.S. 1301 

(1993) (Rehnquist, J., in chambers) (refusing to enjoin enforcement of the Cable Television 

Consumer Protection and Competition Act of 1992, despite First Amendment claim: “By 

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seeking an injunction, applicants request that I issue an order altering the legal status quo”) 

(emphasis in original). There is a “presumption of constitutionality which attaches to every Act 

of Congress.” Walters v. Nat’l Ass’n of Radiation Survivors, 468 U.S. 1323, 1324 (1984) 

(Rehnquist, J., in chambers). Plaintiffs fail to meet their burden of showing clearly that the 

longtime status quo should be altered and a federal statute preliminarily enjoined.2

IV. PLAINTIFFS CANNOT DEMONSTRATE A SUBSTANTIAL LIKELIHOOD 

OF SUCCESS ON THE MERITS 

A. The Act’s Limit on Contributions to Political Committees is 

Constitutional As Applied 

1. The Contribution Limits At Issue Are Subject to Intermediate 

Scrutiny 

Although plaintiffs concede that they meet the criteria for political committee status (see 

infra section IV.A.2.), they challenge, inter alia, the Act’s $5,000 limit on contributions that 

individuals may give to political committees like SpeechNow. 2 U.S.C. § 441a(a)(1)(C). 

Plaintiffs contend that section 441a(a)(1)(C) should be considered an expenditure limit and 

reviewed under a strict scrutiny analysis because this contribution limit may indirectly affect the 

overall amount of money that SpeechNow can raise and then spend as it chooses. (See, e.g., Pls.’ 

 

2

 In their complaint, plaintiffs included in their prayer for relief a request that the Court 

immediately certify constitutional questions to the en banc court of appeals. (Prayer for Relief 

¶ 1); 2 U.S.C. § 437h. Plaintiffs have not yet moved for such certification. Since plaintiffs have 

not yet framed the constitutional questions they wish to have certified to the en banc court of 

appeals, it is premature for the Commission to address these and related issues, such as statutory 

standing. See, e.g., Cal. Med. Ass’n v. FEC (“Cal Med”), 453 U.S. 182, 192 n.14 (1981); Athens 

Lumber Co., Inc. v. FEC, 689 F.2d 1006, 1009-1011 (11th Cir. 1983); Int’l Ass’n of Machinists 

and Aerospace Workers v. FEC, 678 F.2d 1092, 1098-1099 (D.C. Cir. 1982). Moreover, if the 

plaintiffs pursue this relief, the Court will need to develop a factual record for the en banc court 

of appeals. Bread Political Action Comm. v. FEC, 455 U.S. 577, 580 (1982). See Khachaturian 

v. FEC, 980 F.2d 330 (5th Cir. 1992) (en banc) (remanding to district court for further 

proceedings); Buckley v. Valeo, 519 F.2d 817, 818 (D.C. Cir. 1975) (en banc) (same). If the 

plaintiffs move for certification and identify the constitutional issues that they believe warrant en 

banc review, the Commission will respond appropriately at that time.

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Memorandum of Law in Support of Motion for Preliminary Injunction (“Mem.”) at 12.) 

(“[L]imits on contributions to groups that make independent expenditures are necessarily 

restrictions on their expenditures.”). Plaintiffs confuse the difference between contribution and 

expenditure limits, however, and numerous Supreme Court decisions dating back to Buckley

make clear that a lower level of scrutiny applies to contribution limits, including the one at issue 

here. 

 The Supreme Court has explained that, unlike a “limitation upon expenditures for 

political expression, a limitation upon the amount that any one person or group may contribute to 

a candidate or political committee entails only a marginal restriction upon the contributor’s 

ability to engage in free communication.” Buckley, 424 U.S. at 20. 

A contribution serves as a general expression of support for the candidate and his 

views, but does not communicate the underlying basis for the support. The 

quantity of communication by the contributor does not increase perceptibly with 

the size of the contribution, since the expression rests solely on the 

undifferentiated, symbolic act of contributing. At most, the size of the 

contribution provides a very rough index of the intensity of the contributor’s 

support for the candidate. A limitation on the amount of money a person may 

give to a candidate or campaign organization thus involves little direct restraint on 

his political communication, for it permits the symbolic expression of support 

evidenced by a contribution but does not in any way infringe the contributor’s 

freedom to discuss candidates and issues. While contributions may result in 

political expression if spent by a candidate or an association to present views to 

the voters, the transformation of contributions into political debate involves 

speech by someone other than the contributor. 

Id. at 21 (footnote omitted). The Supreme Court has repeatedly reaffirmed this holding. See, 

e.g., Nixon v. Shrink Missouri Gov’t PAC, 528 U.S. 377, 386-88 (2000); FEC v. Colorado 

Republican Fed. Campaign Comm. (“Colorado II”), 533 U.S. 431, 440-42, 456 (2001); FEC v. 

Beaumont, 539 U.S. 146, 161-62 (2003); McConnell v. FEC, 540 U.S. 93, 135 (2003); Randall v. 

Sorrell, 548 U.S. 230, __, 126 S.Ct. 2479, 2488, 2491 (2006) (plurality) (same). 

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Contribution limits leave contributors free to become members of associations and assist 

with their various efforts on behalf of candidates, and also “to assist to a limited but nonetheless 

substantial extent in supporting candidates and committees with financial resources.” Buckley, 

424 U.S. at 28. Accordingly, Buckley held that even a contribution limit that involved a 

“significant interference with protected rights of political association may be sustained” if it is 

“closely drawn” to match “a sufficiently important interest.” Id. at 25 (internal quotation marks 

omitted). Continuing through later cases such as Shrink Missouri, Colorado II, Beaumont and 

McConnell, the Court has consistently held that limits on contributions are subject to a lower 

level of scrutiny than limits on expenditures. Shrink Missouri, 528 U.S. at 387 (“It has . . . been 

plain ever since Buckley that contribution limits would more readily clear the hurdles before 

them.”); Colorado II, 533 U.S. at 441 (“[W]e have routinely struck down limitations on 

independent expenditures .... while repeatedly upholding contribution limits.”) (citations and 

footnote omitted). 

 The Act’s limits on contributions to political committees do not limit SpeechNow’s 

independent expenditures. SpeechNow remains free “to aggregate large sums of money to 

promote effective advocacy,” McConnell, 540 U.S. at 136 (quoting Buckley, 424 U.S. at 22), and 

to spend without restriction on its express advocacy communications, FEC v. Nat’l Conservative 

Political Action Comm. (“NCPAC”), 470 U.S. 480, 494 (1985). In NCPAC, the Court 

distinguished the expenditure limit struck down in that case from the contribution limit that was 

upheld in California Medical Ass’n v. FEC (“Cal Med”), 435 U.S. 182 (1981): 

[N]othing in the statutory provision in question [in Cal Med] limit[ed] the amount 

an unincorporated association or any of its members may independently expend in 

order to advocate political views, but only the amount it may contribute to a 

multicandidate political committee. Unlike California Medical Assn., [the 

provision at issue in NCPAC] involve[s] limitations on expenditures by PACs, not 

on the contributions they receive . . . . 

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470 U.S. at 494-95 (brackets, citation, and quotation marks omitted). 

 The Supreme Court has repeatedly rejected the kind of argument plaintiffs make here, 

i.e., that a contribution limit should be scrutinized as an expenditure limit because it may reduce 

the total funds an organization has available to spend. In Buckley, the Court explained that the 

“overall effect of the Act’s contribution ceilings is merely to require candidates and political 

committees to raise funds from a greater number of persons and to compel people who would 

[have] otherwise contribute[d] amounts greater than the statutory limits to expend such funds on 

direct political expression.” 424 U.S. at 21-22. More recently, in McConnell the Court 

addressed the Act’s new prohibitions on national political parties’ receiving or spending 

nonfederal money (and its limits on state party committees’ spending nonfederal money on 

certain federal election activity). See, e.g., 2 U.S.C. § 441i(a)(1) (enacted in 2002) (“national 

committee of a political party . . . may not solicit [or] receive . . . a contribution . . . or spend any 

funds, that are not subject to the limitations . . . of this Act”) (emphasis added). Although these 

new provisions had the effect of prohibiting the use of nonfederal money to pay for certain 

activity, the Court analyzed these provisions solely as contribution limits. The Court observed 

that “neither provision in any way limits the total amount of money parties can spend. Rather, 

they simply limit the source and individual amount of donations.” 540 U.S. at 139 (citation 

omitted). 

 In particular, the Court clarified that the level of scrutiny must be determined by whether 

the provision creates any burden on speech that would be greater than a simple, direct limit on 

contributions: 

The relevant inquiry is whether the mechanism adopted to implement the 

contribution limit, or to prevent circumvention of that limit, burdens speech in a 

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way that a direct restriction on the contribution itself would not. That is not the 

case here. 

Id. at 138-39. In this case, plaintiffs have challenged “direct restriction[s] on the contribution[s]” 

to political committees that include no other “mechanism . . . to implement the contribution 

limit.” Id. The “relevant inquiry” in determining the level of scrutiny therefore begins and ends 

here, because plaintiffs challenge only direct contribution limits that have been part of FECA for 

more than 30 years. 

 Plaintiffs’ reliance (Mem. at 18, 22 and 26) on two unpublished decisions from the 

Northern District of California is misplaced. To the extent the decisions in OAKPAC v. City of 

Oakland, No. 06-6366, 2006 Lexis 96900 (N.D. Cal. Oct. 19, 2006), and Committee on Jobs 

Candidate Advocacy Fund v. Herrera, No. 07-03199, 2007 WL 2790351 (N.D. Cal. Sept. 20, 

2007), treat contribution limits as expenditure limits because the former “act” as limits on 

expenditures, see Herrera, 2007 WL 2790351, at * 3, they are wrongly decided under the 

reasoning and holdings of Buckley and McConnell. Moreover, to the extent these decisions, and 

the Ninth Circuit decision in Lincoln Club of Orange County v. City of Irvine, 292 F.3d 934 (9th

Cir. 2002), upon which they rely, involve ordinances that directly restrict independent 

expenditures, they are inapplicable here. As the Ninth Circuit explained in Lincoln Club, the 

Ordinance at issue there “does not merely restrict contributions. It also restricts expenditures by 

barring an independent expenditure committee from making any independent expenditures 

whatsoever if the source of the committee’s money is membership dues that exceed the 

Ordinance’s prescribed maximum.” Id. at 938 (emphasis added). See also Herrera, 2007 WL 

2790351, at *3 (same). The FECA contains no such limitation on political committees’ 

independent expenditures, no matter how much money they raise or choose to spend. 

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 Thus, plaintiffs’ contention that strict scrutiny is applicable here has no basis in law, and 

their reliance on Citizens Against Rent Control v. City of Berkeley, 454 U.S. 290 (1981), is also 

misplaced. That case, which involved a municipal restriction on contributions to a ballot 

measure committee, is clearly distinguishable from the long line of cases applying lesser scrutiny 

to contribution limitations involving candidate elections. In First National Bank of Boston v. 

Bellotti, 435 U.S. 765, 790 (1978), the Court explained that that the “risk of corruption perceived 

in cases involving candidate elections . . . simply is not present in a popular vote on a public 

issue.” Indeed, the Court later quoted this very passage in Citizens Against Rent Control when it 

continued to rely on the distinction between limits involving candidate elections and those 

involving ballot measures. 454 U.S. at 298. 

 In sum, the direct contribution limits at issue here need only be closely drawn to match a 

sufficiently important interest, and the Court must apply this level of scrutiny when deciding 

whether plaintiffs are likely to prevail on the merits. 

2. The Supreme Court Has Made Clear That Limitations on 

Contributions to Political Committees that Purport to Make 

Only Independent Expenditures Are Constitutional 

 It is undisputed that SpeechNow will meet all the requirements under federal law to 

qualify as a political committee within the meaning of FECA. It intends both to raise more than 

$1,000 in contributions (Compl. ¶¶ 32, 38) and make more than $1,000 in expenditures (Compl. 

¶¶ 20 – 27, 41) this calendar year, and its major purpose is electing and defeating federal 

candidates (Compl. ¶¶ 7, 47). See supra sections I.B., II. When the Supreme Court narrowly 

construed the definition of political committees to such major purpose organizations, it explained 

that “[e]xpenditures of . . . ‘political committees’ so construed can be assumed to fall within the 

core area sought to be addressed by Congress. They are, by definition, campaign related.” 

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Buckley, 424 U.S. at 79. SpeechNow thus falls “within the core area” Congress sought to 

address and contributions to it may constitutionally be limited, whether its expenditures are 

coordinated with candidates or not. 

Drawing on Buckley and Cal Med, the Court in McConnell clearly explained that the First 

Amendment does not prohibit Congress from regulating contributions to political committees 

that make only independent expenditures. In Buckley, the Court had upheld a $25,000 annual 

limitation on the total federal contributions an individual could make, whether those 

contributions were to candidates, political parties, or other political committees — without 

analyzing how those contributions might ultimately be spent. 424 U.S. at 38. In Cal Med, the 

Court had upheld FECA’s $5,000 limit on contributions to multicandidate political committees. 

453 U.S. at 193-201. When the Court in McConnell relied upon these and other decisions in 

upholding BCRA’s limits on soft money, it explained how those cases have rejected a “crabbed 

view of corruption.” 540 U.S. at 152. In particular, it rejected the notion that only a “direct 

contribution to the candidate” can “threaten to create . . . a sense of obligation” from a candidate 

to a donor. Id. at 144. Rather, the Court explained that persons seeking influence with 

officeholders and candidates have shown a history of exploiting loopholes in the Act, and that 

indirect attempts to use money to gain influence can create actual corruption, or the appearance 

of corruption, that can justify congressional efforts to protect the integrity of the democratic 

process. See generally id. at 143-154. 

The Court further explained that federal officeholders “were well aware of the identities 

of the donors” who gave large contributions to political parties that could then use that money to 

help their candidates get elected. Id. at 147. That same awareness opened doors that gave large 

donors preferential access to officeholders. As the Court explained, “[o]ur cases have firmly 

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established that Congress’ legitimate interest extends beyond preventing simple cash-for-votes 

corruption to curing ‘undue influence on an officeholder’s judgment, and the appearance of such 

influence.’” Id. at 150 (quoting Colorado II, at 533 U.S. at 441). The Court then explicitly 

rejected the kind of argument that plaintiffs make here, and explained that its prior rulings in 

Buckley and Cal Med went beyond upholding contribution limits to political committees because 

those funds could in turn be used to make direct contributions to candidates: 

[W]e upheld [in Buckley] FECA’s $25,000 limit on aggregate yearly contributions 

to candidates, political committees, and party committees out of recognition that 

FECA’s $1,000 limit on candidate contributions would be meaningless if 

individuals could instead make huge contributions to the candidate’s political 

party. Likewise, in California Medical Assn. v. Federal Election Comm’n, we 

upheld FECA’s $5,000 limit on contributions to multicandidate political 

committees. It is no answer to say that such limits were justified as a means of 

preventing individuals from using parties and political committees as passthroughs to circumvent FECA’s $1,000 limit on individual contributions to 

candidates. Given FECA’s definition of “contribution,” the $5,000 and $25,000 

limits restricted not only the source and amount of funds available to parties and 

political committees to make candidate contributions, but also the source and 

amount of funds available to engage in express advocacy and numerous other 

noncoordinated expenditures. If indeed the First Amendment prohibited 

Congress from regulating contributions to fund the latter, the otherwise-easy-toremedy exploitation of parties as pass-throughs (e.g., a strict limit on donations 

that could be used to fund candidate contributions) would have provided 

insufficient justification for such overbroad legislation. 

McConnell, 540 U.S. at 152 n.48 (emphasis added in last two sentences) (quotation marks and 

internal citations omitted). Plaintiffs ignore this clear, dispositive reasoning from the Supreme 

Court even though this case indisputably involves such “noncoordinated expenditures” of 

“express advocacy.” 

 As McConnell indicates, when the Court in Cal Med upheld FECA’s limit on 

contributions to multicandidate political committees, it rejected the argument that Congress 

could only regulate contributions that would be used as “pass-throughs to circumvent FECA’s 

$1,000 limit on individual contributions to candidates.” McConnell, 540 U.S. at 152 n.48. The 

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petitioner in Cal Med had argued that contributions earmarked for administrative support could 

not be regulated because such contributions lacked potential to corrupt the political process. 453 

U.S. at 198 n.19. The Court, however, recognizing that because money was fungible and that 

contributions to the California Medical Association’s political committee intended to pay for one 

type of expense could actually pay for anything, upheld the contribution limit without regard to 

the use to which a contribution would ultimately be put. Id. (“We . . . conclude that [the limit on 

contributions to a political committee] applies equally to all forms of contributions specified in 

[the Act].”). As McConnell further explained (540 U.S. at 152 n.48), if the Constitution 

precludes Congress from regulating contributions to political committees unless those funds are 

passed on as contributions to others, then the $5,000 limit on contributions to multicandidate 

political committees upheld in Cal Med would have been overbroad insofar as it regulated “not 

only the source and amount of funds available to parties and political committees to make 

candidate contributions, but also the source and amount of funds available to engage in express 

advocacy and numerous other noncoordinated expenditures.” Thus, while explaining that the 

contribution limit upheld in Cal Med is not overbroad, the Court in McConnell rejected the 

argument plaintiffs make here.3

Plaintiffs rely heavily on Justice Blackmun’s concurring opinion in Cal Med, in which he 

explained (453 U.S. at 203) his view that “a different result would follow if” the contribution 

limits at issue were applied to committees established to make only independent expenditures. 

As explained above, however, the McConnell decision rejects Justice Blackmun’s view. In any 

event, Justice Blackmun’s concurrence is dicta, because the entity at issue there made both 

 

3

 Cf. FEC v. Malenick, No. 02-1237, 2005 WL 588222 (D.D.C. Mar. 7, 2005) (explaining 

that Cal Med stands for the proposition that classifying funds as “contributions” under the Act is 

not a function of the subjective intent of the contributor as to how the money will be spent). 

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contributions and expenditures. See Cal Med, 453 U.S. at 197 n.17 (plurality) (group of 

individuals making solely independent expenditures was a “hypothetical application of the Act” 

that the Court “need not consider.”); see also FEC v. Cal. Med. Ass’n, 502 F. Supp. 196, 198 

(N.D. Cal. 1980) (discussing federal contributions and expenditures made by California Medical 

Association’s political committee). The issue of contribution limits to political committees that 

make only independent expenditures was thus not directly before the Court. Contrary to 

plaintiffs’ argument (Mem. at 21), therefore, Justice Blackmun’s concurrence cannot in any 

sense be considered “controlling”: the Court did not hold anything with respect to organizations 

that make only independent expenditures. In any event, the actual holding of the majority in 

Cal Med — including Justice Blackmun — affirmed the constitutionality of limiting 

contributions to a political committee that in part spent funds on independent expenditures and 

administrative costs, and the majority upheld those limits even to the extent the contributions 

received would be used for something other than candidate contributions.4

Plaintiffs fail to address not only McConnell, but MCFL. In that case the Court found 

that exempting a limited class of ideological nonprofit corporations — corporations that, inter 

alia, did not have candidate elections as their major purpose — from the Act’s prohibition on 

corporate expenditures would not open the door to massive undisclosed political spending. 

Ideological corporations such as Massachusetts Citizens for Life, the Court explained, would still 

have to report their independent expenditures under 2 U.S.C. § 434(c). 479 U.S. at 262. But the 

Court also indicated that a group could be classified as a political committee based solely on the 

 

4

 See also McConnell v. FEC, 251 F. Suppp. 2d 176, 766 (D.D.C. 2003) (Leon, J.) 

(“Restricting contributions to committees like the one at issue in California Medical, the Court 

maintained, is different than efforts to regulate groups expressing common political views. In 

this sense, the nature of the organization — that it is established solely to benefit federal 

candidates — was enough to conclude that most, if not all, of its contributions and expenditures 

were for the purpose, and had the effect, of benefitting a federal candidate.”) (citation omitted). 

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magnitude of its independent expenditures. Most important, the Court stated that a group that 

became a political committee by making extensive independent expenditures would have to 

abide by the “restrictions applicable to those groups” — restrictions which include the 

contribution limits challenged by plaintiffs here. Id. 

[S]hould MCFL’s independent spending become so extensive that the 

organization’s major purpose may be regarded as campaign activity, the 

corporation would be classified as a political committee. As such, it would 

automatically be subject to the obligations and restrictions applicable to those 

groups whose primary objective is to influence political campaigns. 

Id. (emphasis added) (citation omitted).5 SpeechNow’s “extensive,” indeed exclusive, focus on 

independent expenditures makes clear that it is a political committee that must obey the 

restrictions on such organizations. Plaintiffs have made no effort to address McConnell or 

MCFL, and they are unlikely to succeed on the merits of their constitutional challenge. 

3. As Applied to SpeechNow, the Act’s Limit on Contributions to 

Political Committees is Closely Drawn to Match Sufficiently 

Important Governmental Interests 

a. Corruption and the Appearance of Corruption 

The Supreme Court “has long recognized the governmental interest in preventing 

corruption and the appearance of corruption in election campaigns.” FEC v. Wisconsin Right to 

Life, Inc. (“WRTL”), 127 S. Ct. 2652, 2672 (2007) (quoting Buckley, 424 U.S. at 45) (Roberts, 

C.J.). Plaintiffs assert (Mem. at 19) that only direct contributions to candidates have a potential 

to create corruption or its appearance. As explained supra pp. 13-15, however, the Supreme 

Court has rejected that “crabbed view of corruption,” McConnell, 540 U.S. at 203, and has 

 

5

 Justice O’Connor’s reasons for concurring separately did not relate to this portion of the 

Court’s rationale. 479 U.S. at 265-66. 

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recognized that contributions for independent expenditures have the potential to corrupt or create 

the appearance of corruption. 

 Although the Supreme Court has held that the interest in avoiding corruption is 

inadequate under strict scrutiny to justify direct spending limits on independent expenditures by 

persons other than corporations or labor unions, the Court has never held that independent 

expenditures by other persons pose no risk of corruption. Rather, in Buckley the Court explained 

that the “independent advocacy restricted by the provision does not presently appear to pose 

dangers of real or apparent corruption comparable to those identified with large campaign 

contributions.” 424 U.S. at 46 (emphasis added).6

 In analyzing FECA’s earlier expenditure cap 

that applied to all persons, the Court in fact “assume[d], arguendo, that large independent 

expenditures pose the same dangers of actual or apparent quid pro quo arrangements as do large 

contributions.” Id. at 45. The Court struck down the expenditure limit, but its holding rested not 

only on the independence of the speech, but also on the fact that the $1,000 ceiling on 

expenditures “heavily burden[ed] core First Amendment expression,” id. at 48, and on the likely 

ineffectiveness of the particular provision at issue in preventing circumvention of the 

contribution limits, id. at 45.7

 

 

6

 See also McConnell, 251 F. Supp. 2d at 624-25 (D.D.C. 2003) (“The Court in Buckley 

wrote that the threat of independent expenditures made by individuals did not ‘presently appear’ 

to pose a danger of possible corruption. Therefore, Buckley explicitly left open the possibility 

that a time might come when a record would indicate that independent expenditures made by 

individuals to support candidates would raise an appearance of corruption.”) (Kollar-Kotelly, J.) 

7

 To avoid vagueness problems, the Court had construed the independent expenditure limit 

narrowly to apply only to “expenditures . . . that in express terms advocate the election or defeat 

of a clearly identified candidate for federal office.” 424 U.S. at 44. Having thus limited the 

reach of the limit on independent expenditures, the Court then concluded that its own 

interpretation “thus undermine[d] the limitation’s effectiveness as a loophole-closing provision 

by facilitating circumvention by those seeking to exert improper influence upon a candidate or 

office-holder.” Id. at 45. 

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 A contribution limit, on the other hand, “entails only a marginal restriction” upon the 

contributor’s speech. Id. at 20; see supra section IV.A.1. The Buckley Court found that the 

absence of coordination only lessens or “alleviates the danger that expenditures will be given as 

a quid pro quo for improper commitments from the candidate.” 424 U.S. at 47 (emphasis 

added). In Colorado Republican Federal Campaign Committee v. FEC (“Colorado I”), the 

Court reiterated that “‘the absence of prearrangement and coordination’ does not eliminate, but 

it does help to ‘alleviate,’ any ‘danger’ that a candidate will understand the expenditure as an 

effort to obtain a ‘quid pro quo.’” 518 U.S. 604, 616 (1996) (quoting NCPAC, 470 U.S. at 498). 

As Chief Justice Roberts explained just last term in the controlling opinion in WRTL, Buckley 

“suggested that this [anti-corruption] interest might also justify limits on electioneering 

expenditures because it may be that, in some circumstances, ‘large independent expenditures 

pose the same dangers of actual or apparent quid pro quo arrangements as do large 

contributions.’” WRTL, 127 S.Ct. at 2672 (quoting Buckley at 45) (emphasis in original).8

 

In Colorado I, the Court observed not only that independent expenditures can corrupt, but 

that Congress can properly address such risks through contribution limits to entities that make 

such expenditures (in that case, a political party committee): 

A party may not simply channel unlimited amounts of even undesignated 

contributions to a candidate, since such direct transfers are also considered 

contributions and are subject to the contribution limits on a “multicandidate 

political committee.” The greatest danger of corruption, therefore, appears to be 

from the ability of donors to give sums up to $20,000 to a party which may be 

 

8

 See also McConnell, 251 F. Supp. 2d at 765 (Leon, J.) (“Supreme Court precedent . . . 

intimates that donations closely connected to a candidate’s campaign — even if they are not 

direct contributions or coordinated expenditures — raise, at a minimum, the specter of 

corruption.”); id. at 767 (“Reading Colorado I together with Buckley, Bellotti, Citizens Against 

Rent Control, and California Medical leaves one with a clear impression: donations used 

directly for the purpose of uncoordinated federal activity, like express advocacy, can engender 

corruption, or the appearance thereof, and are therefore regulable.”). 

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used for independent party expenditures for the benefit of a particular candidate.

We could understand how Congress, were it to conclude that the potential for 

evasion of the individual contribution limits was a serious matter, might decide to 

change the statute’s limitations on contributions to political parties. 

518 U.S. at 616-17 (emphasis added) (internal citations omitted). The result that plaintiffs seek 

would create exactly that danger, only worse: unlimited sums could be contributed to 

SpeechNow which could then use those funds for the benefit of particular candidates. 

The record in the McConnell litigation further established the danger of corruption and its 

appearance from independent expenditures. McConnell involved so-called “issue advocacy,” 

which, unlike the ads that SpeechNow plans to broadcast, does not include express words of 

candidate advocacy. Nevertheless, the record compiled there demonstrated that candidates know 

and feel indebted to those who made such expenditures to help elect them. The Supreme Court 

explained that “[w]hile the public may not have been fully informed about the sponsorship of socalled issue ads, the record indicates that candidate and officeholders often were.” McConnell, 

540 U.S. at 128-29. In the court below, Judge Kollar-Kotelly had found not only “that Members 

of Congress and federal candidates are very aware of who ran advertisements on their behalf,” 

but also that such members and candidates “feel indebted to those who spend money to help 

them get elected. . . . In fact, Members will also be favorably disposed to those who finance 

these groups when they later seek access to discuss pending legislation.” McConnell, 251 F. 

Supp. 2d at 556 (Kollar-Kotelly, J.). 

Having made significant expenditures to elect or defeat particular candidates, 

organizations that paid for such expenditures, or their members, often informed the officeholder 

that benefited of the outlay, either directly or otherwise. Id. (“[I]nterest groups can be the ones 

who apprise politicians of the advertisements that they run on their behalf.”); id. at 557 (“Groups 

aggressively push to be recognized for the role they played in helping a candidate get elected to 

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office.”).9

 As one lobbyist testified in McConnell, “‘unregulated expenditures — whether soft 

money donations to the parties or issue ad campaigns — can generate far more influence than 

direct campaign contributions.’” Id. at 556. 

The Supreme Court has rejected a “crabbed view of corruption” that “ignores precedent, 

common sense, and the realities of political fundraising exposed by the record . . . .” McConnell, 

540 U.S. at 152; see also supra section IV.A.2. Jon Coupal, a SpeechNow organizer and initial 

member, has himself contended that a form of quid pro quo corruption has occurred as a result of 

independent expenditures. He alleged that there was a corrupt relationship between Los Angeles 

city officeholders and municipal employee unions, writing: 

Local politicians and the public sector have formed an alliance that benefits both. 

The city is such an excellent provider that it is regarded as “the land of milk and 

honey” to those seeking public employment. In turn, public employee unions and 

city workers provide millions of dollars worth of campaign support to their 

favored candidates in each election cycle — often through independent 

expenditures to get around the city’s campaign contribution limits. 

Jon Coupal, Los Angeles the Trendsetter, Howard Jarvis Taxpayer Ass’n Cal. Commentary, Vol. 

I, Issue 14, at 1-2 (May 5, 2003), available at

http://hjta.webcommanders.com/HJTACommentary014.pdf (Sadio Decl. Exh I). 

Were plaintiffs to prevail in their constitutional claim and free “major purpose” groups 

from contribution limits, donors could contribute millions of dollars in an election year for 

express candidate advocacy and gain unprecedented influence over candidates and elected 

officials. It is easy to imagine, for example, the proliferation of independent expenditure 

political committees devoted to supporting or opposing a single federal candidate or officeholder 

 

9

 Although plaintiffs contend that SpeechNow will operate “wholly independently” of 

candidates, Mem. at 3, it is unclear from its by-laws whether its donors may inform candidates of 

the group’s efforts after expenditures are made, or of generally publicizing them. (Keating Decl. 

Exh. E, Art. X § 7.) 

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and funded entirely by very large contributions.10 This type of corruption and its appearance are 

precisely why the Supreme Court has indicated that contributions can be limited to groups 

making independent expenditures. 

 b. Distorting Effects of Immense Aggregations of Wealth 

 The $5,000 limit on contributions to political committees is substantially related to an 

additional government interest. The Supreme Court has recognized that a “different type of 

corruption in the political arena,” Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 660 

(1990), can justify restrictions on independent expenditures by entities that take advantage of 

unique state-created benefits to amass large political war chests. Applying strict scrutiny to an 

expenditure limit, the Court in Austin upheld Michigan’s restriction on independent expenditures 

by corporations. The Court explained that among the compelling interests supporting the 

prohibition was avoiding the “corrosive and distorting effects of immense aggregations of 

wealth” accumulated with the help of special advantages bestowed by the state, such as limited 

liability, perpetual life, and favorable treatment of the accumulation and distribution of assets. 

Id. at 658-60. 

The government’s compelling interest in avoiding the corrosive and distorting effects of 

immense aggregations of wealth on elections applies to for-profit business corporations and 

not-for-profit advocacy corporations alike. In Austin itself, the Court upheld an independent 

expenditure restriction as applied to a nonprofit corporation. Id. at 661-65. And in FEC v. 

 

10 See also Edward B. Foley, The “Major Purpose” Test: Distinguishing Between ElectionFocused and Issue-Focused Groups, 31 N. Ky. L. Rev. 341, 346 (2004) (“[W]hen a political 

committee is focused on electing one particular candidate (or defeating that candidate’s 

opponent), a large-dollar gift to that political committee is almost as good as a large-dollar gift to 

the candidate’s own campaign would be as a means to secure improper favoritism from that 

candidate once in office.”). 

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Beaumont, 539 U.S. 146, 159-60 (2003), the Court noted specifically that the “different type” of 

corruption that justified the prohibition in Austin applied in full to nonprofit corporations.11 The 

Court observed that nonprofit corporations could also aggregate significant wealth through stateconferred advantages, including limited liability, perpetual life, and favorable treatment of the 

accumulation and distribution of assets, to the same detrimental effect (539 U.S. at 159-60): 

[C]oncern about the corrupting potential underlying the corporate ban may indeed be 

implicated by advocacy corporations. They, like their for-profit counterparts, benefit 

from significant state-created advantages, and may well be able to amass substantial 

political war chests. Not all corporations that qualify for favorable tax treatment 

under § 501(c)(4) of the Internal Revenue Code lack substantial resources, and the 

category covers some of the Nation’s most politically powerful organizations, 

including the AARP, the National Rifle Association, and the Sierra Club. 

 

 The government’s interest in combating the corrosive and distorting effects of substantial 

aggregations of wealth on elections applies here as well. SpeechNow has the advantage of 

government-created benefits under the District of Columbia Uniform Unincorporated Nonprofit 

Associations Act. (Comp. ¶ 7.) Like a corporation, SpeechNow is a separate legal entity from 

its members, and unlike the individuals who join SpeechNow, the organization enjoys limited 

liability under DC law. Thus, SpeechNow’s members are not liable in tort or contract, merely 

because of their membership status, for the association’s acts or omissions. D.C. Code 

§ 29-971.06. For example, a SpeechNow member, even though he or she might fund the entirety 

of one of the association’s ad campaigns, might not be held liable if the ad campaign were 

 

11 Beaumont specifically concerned “MCFL corporations,” a small class of nonprofit 

ideological corporations described in MCFL that cannot constitutionally be limited in their 

independent expenditures. In Beaumont, the Court applied intermediate scrutiny and upheld the 

FECA’s corporate contribution prohibition, 2 U.S.C. § 441b, as applied to MCFL corporations. 

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libelous. Nor could that member be liable if SpeechNow were to breach an advertising 

contract.12 

 Moreover, as a section 527 organization, SpeechNow enjoys favorable treatment in the 

accumulation and distribution of its assets. Unlike individuals, SpeechNow will not have to pay 

any income or gift taxes on its receipts: Section 527 of the Internal Revenue Code shields from 

federal taxation funds raised and spent by “political organizations” for “influencing or attempting 

to influence” the nomination or election of federal officials received. 26 U.S.C. § 527(c),(e)(2), 

§ 2501(a). “Political Organizations” include unincorporated associations organized and operated 

primarily for the purpose of accepting contributions or making expenditures for advocacy related 

to candidate elections. 26 U.S.C. § 527(e)(2). Thus, unincorporated 527 organizations, like 

SpeechNow, are generally not taxed on any amounts received, segregated, and used to influence 

a federal election.13 SpeechNow thus benefits from favorable tax treatment in a way that an 

individual making independent expenditures would not. 

 Armed with such legal and tax advantages, organizations like SpeechNow could, like 

nonprofit corporations, amass significant political war chests. Indeed, plaintiffs themselves 

allege that one of the reasons they wish to operate as an unincorporated association is to amplify 

the voices of SpeechNow’s members “beyond what any individual could achieve on his own.” 

(Compl. ¶ 14.) “[P]olitical war chests may be amassed simply from the members’ 

contributions.” Beaumont, 530 U.S. at 160 n.6 (internal quotation marks omitted). The 

 

12 An unincorporated District of Columbia association such as SpeechNow is also, much 

like a D.C. non-profit corporation, a separate legal entity that can acquire, hold, and transfer real 

or personal property in its own name. Compare D.C. Code § 29-971.04-05 (unincorporated 

associations) with D.C. Code § 29-301.05(4)-(5) (nonprofit corporations). 

13 As a section 527 organization, SpeechNow generally must make some disclosures 

regarding its donors in reports to the Internal Revenue Service, but it has the option of paying 

taxes and not making such disclosures. See infra n.17. 

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government interest in preventing a corrosive and distorting effect on the political marketplace is 

sufficiently important under the less rigorous level of scrutiny applied to contribution limits to 

uphold the Act’s limits on contributions to political committees like SpeechNow.

c. Unlimited Contributions Would Undercut the Act’s 

Disclaimer Requirements 

 

Under plaintiffs’ view of the law, SpeechNow should not be required to reveal the donors 

behind its expenditures in the disclaimers required in its express advocacy communications, even 

though the Supreme Court has held that the Act’s disclosure provisions serve important 

governmental interests. See infra section III.C. The Act requires that these communications 

include informational disclaimers: stating who is making the independent expenditure, providing 

contact information, and stating whether the communication was authorized by any candidate. 

See supra section II.D.2. Disclaimers on independent expenditures by political committees need 

not include information regarding who contributed to the political committee. When a political 

committee pays to broadcast expensive independent expenditures, however, no one person could 

have contributed more than $5,000 annually to help pay for the ad. In contrast, if SpeechNow 

prevails here, individuals would be able to donate unlimited funds to pay for independent 

expenditures, but SpeechNow’s disclaimers would still only name the organization as the person 

responsible for the ad. Although candidates and officeholders whose elections were influenced 

would likely know the identity of the big donors behind SpeechNow’s ads, see supra section 

II.D, the public would not receive this information contemporaneously.14 In McConnell, for 

 

14 Although the identity of individuals who paid for the ads through SpeechNow may 

eventually be disclosed in SpeechNow’s independent expenditure reports, Congress and the 

Supreme Court have recognized the public’s interest in learning who is responsible for election 

ads at the moment they are aired. See supra pp.6-7; McConnell 540 U.S. at 231 (upholding the 

application of disclaimer requirements to electioneering communications and explaining that 

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example, the Supreme Court found that “Republicans for Clean Air, which ran ads in the 2000 

Republican Presidential primary, was actually an organization consisting of just two individuals 

— brothers who together spent $25 million on ads supporting their favored candidate.” 540 U.S. 

at 128. However, if individuals cannot hide behind the façade of an independent expenditure 

organization but instead pay for such communications themselves, the disclaimers will then 

directly reveal the true source of the communications’ funding. Thus, by accepting unlimited 

contributions and acting as a conduit, SpeechNow would deprive the public of accurate 

disclaimers that help prevent corruption. 

For example, although plaintiff Fred Young could provide all the funding for 

SpeechNow’s planned ad campaign targeting Representative Dan Burton (Compl. ¶ 22), the ad 

itself would only indicate that “SpeechNow is responsible for the content of this advertising.” 

More generally, through independent membership associations, wealthy donors could target 

specific candidates for election or defeat while hiding behind “dubious and misleading names” 

like “The Coalition – Americans Working for Real Change,” “Citizens for Better Medicare,” and 

“Republicans for Clean Air.” See McConnell, 540 U.S. at 197 (quoting McConnell, 251 F. Supp. 

2d at 237 (D.D.C.)). The Act’s limits on contributions to political committees like SpeechNow 

helps prevent this kind of evasion of the disclaimer requirements. 

B. The Act’s Biennial Aggregate Contribution Limits are Closely Drawn to 

Match Sufficiently Important Governmental Interests As Applied 

In Buckley, the Supreme Court upheld the Act’s limit on total individual contributions to 

$25,000 each calendar year, even though this limit restricts the number of candidates and 

committees with which an individual may associate. Id. at 38. The Court found that this 

 

doing so bore “a sufficient relationship to the important governmental interest of ‘shed[ding] the 

light of publicity’ on campaign financing.”) (quoting Buckley, 424 U.S. at 81). 

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aggregate contribution limit was a “modest restraint” and a mere “corollary” of the individual 

contribution limit that was closely drawn to match sufficiently important interests. Id. The 

aggregate limit “serve[s] to prevent evasion of the [candidate] contribution limitation by a person 

who might otherwise contribute massive amounts of money to a particular candidate through the 

use of unearmarked contributions to political committees likely to contribute to that candidate.” 

Id. The aggregate contribution limits have since been increased and indexed to inflation so that 

individuals may make up to $42,700 in contributions to candidates and up to $65,500 in 

contributions to other political committees. 2 U.S.C. § 441a(a)(3),(c); Contribution Limits 2007-

08, http://www.fec.gov/pages/brochures/contriblimits.shtml (visited Mar. 4, 2008) (Sadio Decl. 

Exh. A) 

Buckley and subsequent cases have affirmed the constitutionality of the Act’s 

contribution limits to candidates, id. at 23-35, political committees, Cal Med, 453 U.S. at 182, 

and political party committees, McConnell, 540 U.S. at 142-89. The biennial aggregate 

contribution limit remains a constitutional corollary of those limits. The fact that SpeechNow 

will not make contributions to candidates is of no moment because, as we have explained supra

section IV.A.2, contribution limits to political committees that only make independent 

expenditures are also constitutional. 

C. The Act’s Reporting Requirements For Political Committees are 

Substantially Related to an Important Government Interest 

As a political committee, SpeechNow will be required to periodically report all of its 

receipts and disbursements to or from a person that are in excess of $200 in a calendar year. See

2 U.S.C. §§ 433-34. The Supreme Court upheld these reporting requirements in Buckley. 424 

U.S. at 66-68. The Court analyzed the reporting requirements under “exacting scrutiny,” which 

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

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interest. Buckley, 424 U.S. at 64, 66, 75. “Exacting scrutiny,” as courts apply it to disclosure 

statutes, is identical to the constitutional standard more commonly known as intermediate 

scrutiny. See Adarand Constr., Inc. v. Pena, 515 U.S. 200, 220 (1995) (noting that intermediate 

scrutiny standard requires statute to be “substantially related to the achievement of an important 

governmental objective”). 

Applying this intermediate level of scrutiny, the Supreme Court found that the Act’s 

reporting requirements vindicate important government interests: (1) “provid[ing] the electorate 

with information as to where political campaign money comes from and how it is spent by the 

candidate in order to aid the voters in evaluating those who seek federal office,” (2) “deter[ring] 

actual corruption and avoid[ing] the appearance of corruption by exposing large contributions 

and expenditures to the light of publicity,” and (3) providing the “essential means of gathering 

the data necessary to detect violations of the contribution limitations.” Buckley, 424 U.S. at 

66-68 (internal quotation marks and footnote omitted); see also McConnell, 540 U.S. at 121 

(“We upheld [in Buckley] all of the disclosure and reporting requirements in the Act . . .”). The 

disclosure protects the “‘First Amendment interests of individual citizens seeking to make 

informed choices in the political marketplace.’” Id. at 197 (quoting McConnell, 251 F. Supp. 2d 

at 237). 

If SpeechNow prevails here, the public will be provided with significantly less 

information about its contributors and its spending. Political committees must report all their 

receipts and disbursements to or from a person in excess of $200 in a year. See 2 U.S.C. §§ 433-

34. Plaintiffs contend that none of SpeechNow’s expenditures other than its noncoordinated 

expenditures for express candidate advocacy should be reported. The only contributors that 

SpeechNow would need to identify would be, for each independent expenditure, each person 

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who made a contribution in excess of $200 “for the purpose of furthering the reported 

independent expenditure.” See supra section II.D. Thus, SpeechNow would not be required by 

FECA to identify those who funded a significant fraction of the organization’s disbursements, 

including administrative expenses and overhead.15 If a single wealthy individual could pay for 

all of these expenses, this person would be in a position to exert significant control over the 

organization, choose its anointed candidates, and gain significant influence over candidates — all 

without sufficient disclosure to the public. Cf. Cal Med, 453 U.S. at 198 n.19. Plaintiffs have 

not even assured the Court that they would report receipts and disbursements for various 

election-related expenses such as opposition research on candidates and polling done to test 

different potential campaign messages. Of the over $1 billion that political committees — not 

including candidate campaigns and political parties — spent last election cycle, approximately 

half was spent on independent expenditures and direct contributions to candidates, political 

parties and other political committees.16 Thus approximately $500 million of the spending by 

the approximately 5000 major-purpose entities was spent on other costs. As the Supreme Court 

 

15 In addition, if it were exempt from the political committee disclosure requirements, 

SpeechNow would be required to include a disclaimer only on its public communications that 

contain express advocacy or solicit contributions. Political committees, on the other hand, must 

include disclaimers on all their public communications. See 11 C.F.R. § 110.11(a)(1),(2); supra

sections III.C., III.D. 

16 See generally Summary of PAC Activity 1990-2006, 

http://www.fec.gov/press/press2007/20071009pac/sumhistory.pdf (last visited Mar. 2, 2008) 

(5,091 committees disbursed approximately $1.055 billion, including $372 million in 

contributions to candidates) (Sadio Decl. Exh. B); 2005-2006 Summary of PAC Independent 

Expenditures, http://www.fec.gov/press/press2007/20071009pac/indepexp2006.pdf (last visited 

Mar. 2, 2008) (independent expenditures of approximately $38 million) (Sadio Decl. Exh. C) 

National Party Financial Activity Through the End of the Election Cycle, 

http://www.fec.gov/press/press2007/partyfinal2006/demfederalye06.pdf (visited Mar. 5, 2008) 

(receipts of Democratic political party committees) (Sadio Decl. Exh. D); National Party Federal 

Financial Activity Through the End of the Election Cycle, 

http://www.fec.gov/press/press2007/partyfinal2006/repfederalye06.pdf (visited Mar. 5, 2008) 

(receipts of Republican political party committees) (Sadio Decl. Exh. E). 

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has explained, Buckley, 424 U.S. at 79, expenditures of major purpose organizations, are “

definition, campaign related.” Under its theory of the case, SpeechNow and organizations like it 

would thus no longer have to report to the Commission a wealth of information that the Court 

has deemed to be “campaign related.”

by 

 

17 

Congress can constitutionally require organizations like SpeechNow to disclose more 

than the reporting required for independent expenditures in order to vindicate the important 

government interest in the “free functioning of our national institutions” identified in Buckley. 

424 U.S. at 66 (quoting Communist Party v. Subversive Activities Control Bd., 367 U.S. 1, 97 

(1961)). Large swaths of information helpful to voters attempting to make informed political 

choices will be lost if SpeechNow and groups like it no longer have to report as federal political 

committees.

V. PLAINTIFFS FAIL TO DEMONSTRATE IRREPARABLE INJURY 

Plaintiffs fail to meet their burden of demonstrating that they will suffer irreparable harm 

without the requested temporary relief, the second factor the Court must consider. To obtain a 

preliminary injunction, “[a] litigant must do more than merely allege the violation of First 

Amendment rights” because “the finding of irreparable injury cannot meaningfully be rested on a 

mere contention of a litigant.” Wagner v. Taylor, 836 F.2d 566, 576 n.76 (D.C. Cir. 1987) 

(quotation omitted); see also NTEU v. United States, 927 F.2d 1253, 1254-55 (D.C. Cir. 1991). 

Instead, “in instances where a plaintiff alleges injury from a rule or regulation that may 

only potentially affect speech, the plaintiff must establish a causal link between the injunction 

sought and the alleged injury, that is, the plaintiff must demonstrate that the injunction will 

17 As a section 527 organization, SpeechNow generally must make some disclosures to the 

Internal Revenue Service regarding its donors and expenses, but it has the option of paying taxes 

on donations in lieu of disclosure. See Mobile Republican Assembly v. United States, 353 F.3d 

1357, 1360 (11th Cir. 2003). 

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prevent the feared deprivation of free speech rights.” Chaplaincy of Full Gospel Churches v. 

England, 454 F.3d 290, 301 (D.C. Cir. 2006) (quoting Bronx Household of Faith v. Bd. of Educ., 

331 F.3d 342, 349-50 (2d Cir. 2003)). This requirement sets a “high standard for irreparable 

injury.” Id. at 297. The “injury must be both certain and great,” and “actual and not theoretical.” 

Wisconsin Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985). Plaintiffs must also “show that 

[t]he injury complained of [is] of such imminence that there is a clear and present need for 

equitable relief to prevent irreparable harm.” Id. (internal citation and quotation marks omitted). 

Further, the prospective injury must be “beyond remediation.” Chaplaincy, 454 F.3d at 297. 

A. Plaintiffs’ Alleged Injuries Are Neither Actual Nor Certain 

 Plaintiffs fail to establish a constitutional burden resulting from the Act’s requirements 

regarding political committees. The facts demonstrate that plaintiffs have taken ample steps 

toward achieving their goals, despite their view of the Act; the facts do not demonstrate that 

plaintiffs will be constitutionally burdened if they abide by the Act’s contribution limits. 

 Contrary to plaintiffs’ conclusory factual assertion that the contribution limits “mak[e] it 

impossible for SpeechNow to function” (Mem. at 25), they have adopted articles of organization 

and bylaws, appointed an agent for service of process, registered with the District of Columbia, 

and filed a Notice of Section 527 status with the Internal Revenue Service. (Keating 

Decl. Exhs. A-E.) See also Sadio Decl. Exh. F (Notice of Business Tax Registration). 

In addition, plaintiffs have developed a working website, including a “sign-up page for people 

who are interested in supporting the organization’s activities.” (Keating Decl. ¶ 4.) Visitors who 

submit their names and addresses are encouraged to check a box indicating whether they would 

“consider making a donation to SpeechNow.org.” http://www.SpeechNow.org/supportpage

(visited Feb. 22, 2008). In addition, plaintiffs have developed proposed written solicitations for 

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contributions from the general public. Sadio Decl. Exhs. G-H. Finally, plaintiffs have prepared 

scripts for advertisements they allege they wish to run in connection with elections in Indiana 

and Louisiana this year. (Keating Decl. Exh. F; Traz Decl. Exhs. B-C.) Plaintiffs contend that 

all these activities have occurred without its raising or spending more than the threshold $1,000 

amount for political committee status or the $5,000 individual contribution limit. (Keating 

Decl. ¶ 31.)

 Moreover, plaintiffs have provided no evidence that would explain why the effects of the 

contribution limit create a unique and unconstitutional burden that would render the Supreme 

Court’s facial holding in Buckley inapposite as applied to them. In any event, the Court has 

explained that the “overall effect” of dollar limits on contributions is 

merely to require candidates and political committees to raise funds from a greater 

number of persons and to compel people who would otherwise contribute 

amounts greater than the statutory limits to expend such funds on direct political 

expression, rather than to reduce the total amount of money potentially available 

to promote political expression. 

Buckley, 424 U.S. at 21. See also Montana Right To Life Ass’n. v. Eddleman, 343 F.3d 1085, 

1091 (9th Cir. 2003); Jacobus v. Alaska, 338 F.3d 1095, 1110 (9th Cir. 2003); Daggett v. Comm’n 

on Gov’tal Ethics and Election Practices, 205 F.3d 445, 461 (1st Cir. 2000). 

 As noted above, SpeechNow’s website already is soliciting the names and addresses of 

potential contributors, and plaintiffs have prepared a draft solicitation letter to be sent to potential 

contributors. Plaintiffs have not explained why these potential donors could not help finance 

SpeechNow’s current or future advertisements, thus reducing SpeechNow’s reliance on large 

donors such as Mr. Young. Assuming that SpeechNow’s planned advertisements will cost 

$120,000, the organization could finance these advertisements with contributions from as few as 

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24 individual contributors (assuming each contributor gives the maximum of $5,000).18 

Alternatively, the political expression plaintiffs wish to make could be effected through the 

second avenue identified in Buckley, 424 U.S. at 21: Mr. Young could spend his $110,000 “on 

direct political expression” rather than “contribut[ing] amounts greater than the statutory limits.” 

For example, plaintiffs have alleged that they could produce and air advertisements in a single 

media market (Indianapolis, Baton Rouge, or New Orleans) for less than $70,000. Thus, 

Mr. Young, who allegedly is willing to contribute $110,000, could finance these or similar 

advertisements himself. 

 Regarding the other potential donors, plaintiff Crane and non-plaintiff Richard Marder 

reportedly would donate $6,000 and $5,500, respectively, if not for the $5,000 contribution limit. 

(Mem. at 5.) But the relatively small amounts above the statutory threshold that they are 

prepared to contribute are not of constitutional dimension — they are “distinctions in degree,” 

not significant “differences in kind.” Buckley, 424 U.S. at 30; see also id. (“a court has no 

scalpel to probe, whether, say, a $2,000 ceiling might not serve as well as $1,000”) (citation and 

quotation marks omitted). Similarly, plaintiffs allege that Scott Burkhardt and Brad Russo 

would contribute $100 each. But these amounts are well below the $5,000 limit and may be 

given freely even if SpeechNow registers and operates as a political committee; these individuals 

face no obstacle whatsoever on their ability to make their desired contributions. 

 The gist of plaintiffs’ allegations of harm, therefore, seems to be that the individual 

plaintiffs other than Mr. Young are injured because they cannot pool their resources through 

SpeechNow with all $110,000 of Mr. Young’s proposed contribution, which will provide 

 

18 As discussed supra section IV.C., the recordkeeping and disclosure requirements that 

apply once a major purpose organization accepts more than $1,000 in contributions or spends 

more than $1,000 in expenditures do not impose an unconstitutional or irreparable harm. 

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approximately 90% of the funds to pay for plaintiffs’ $120,000 ad campaign. But under Buckley, 

it is clear that Congress can enact contribution limits, even if the indirect effect of those limits is 

to require these smaller donors to reach out to more like-minded individuals and for Mr. Young 

to spend his reservoir of cash on his own direct political expression. 

 Plaintiffs have affiliations with several prominent advocacy groups and have received, as 

a result of this litigation, publicity in a number of national newspapers.19 They are thus situated 

better in their “start-up” phase (Mem. at 20, 25) than many of the thousands of major-purpose 

entities that have managed to comply with the Act’s contribution limits and reporting 

requirements for the last thirty plus years. See Summary of PAC Activity 1990-2006, supra

n.16. There are additional individuals willing to contribute money to SpeechNow, (Keating 

Decl. ¶ 33), and it is plaintiffs’ voluntary choice — rather than any prohibition in the Act — not 

to accept contributions in amounts up to $5,000 while they are pursuing this case. 

Finally, in their argument concerning irreparable harm, plaintiffs rely (Mem. at 24) 

heavily on Elrod v. Burns, 427 U.S. 347 (1976), but that case does not support their position. In 

that case the Supreme Court held that employee dismissal based on political party patronage was 

an unconstitutional infringement on employees’ First Amendment rights. Id. at 372. But that 

holding rested on the specific finding that government employees had already been “threatened 

with discharge or had agreed to provide support for the Democratic Party in order to avoid 

discharge,” and it was “clear therefore that First Amendment interests were either threatened or 

in fact being impaired at the time relief was sought.” Id. at 373. Here, however, plaintiffs have 

 

19 See supra section I.B.; Suit Aims To Ease Campaign Funding Limit, The Washington 

Times (Feb. 15, 2008); Suit Could Unleash Surge Of Money In 2008 Presidential Race, 

The New York Sun (Feb. 15, 2008); On Message, Los Angeles Times (Feb. 15, 2008); 

Unfettered Speech, Now, Washington Post (Feb 16, 2008) (Sadio Decl. Exhs. J-M). See also

FEC Recommendation Could End Up in Court, USA Today (Jan. 22, 2008) (Sadio Decl. Exh. N)

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not alleged any governmental action against it of any kind, let alone the kind of imminent or 

actual threats that were present in Elrod. The D.C. Circuit has clearly explained that Elrod did 

not eliminate a First Amendment plaintiff’s burden to show that its interests are actually 

threatened or in fact being impaired. NTEU, 927 F.2d at 1254-55; Wagner, 836 F.2d at 576-77 

n.76; see also Christian Knights of the Ku Klux Klan Invisible Empire, Inc. v. District of 

Columbia, 919 F.2d 148, 149-150 (D.C. Cir. 1990) (rejecting preliminary injunction sought by 

Ku Klux Klan to require local government to issue parade permit for planned march longer than 

one for which it had received permit, finding Elrod not controlling on irreparable harm because 

shorter parade allowed in permit was not total denial of First Amendment rights); Wisconsin 

Right to Life, Inc. v. FEC, Civ. No. 04-1260, 2004 WL 3622736, at *4 (D.D.C. Aug. 17, 2004) 

(rejecting WRTL’s reliance on Elrod).20

 Because plaintiffs have made “no showing of irreparable injury, ‘that alone is sufficient’ 

for a district court to refuse to grant preliminary injunctive relief.” Hicks v. Bush, 397 

F. Supp. 2d 36, 40 (D.D.C. 2005) (citing CityFed Fin. Corp., 58 F.3d at 747); see also Wisconsin 

Gas, 758 F.2d at 674 (“[A]nalysis of [irreparable harm] disposes of these motions . . . .”). Since 

plaintiffs are unable to establish any such constitutional burden that is actual and certain, 

plaintiffs clearly fall short of meeting the “high standard” necessary for a preliminary injunction. 

B. Plaintiffs Face No Imminent Injury 

Plaintiffs also fail to establish that “[t]he injury complained of [is] of such imminence that 

there is a clear and present need for equitable relief to prevent irreparable harm.” Wisconsin 

Gas, 758 F.2d at 674 (internal citation and quotation marks omitted). Indeed, plaintiffs have 

 

20 See also, e.g., Hohe v. Casey, 868 F.2d 69, 72-73 (3d Cir. 1989) (“[A]ssertion of First 

Amendment rights does not automatically require a finding of irreparable injury, thus entitling a 

plaintiff to a preliminary injunction if he shows a likelihood of success on the merits.”); 

Piscottano v. Murphy, 317 F. Supp. 2d 97, 102 (D. Conn. 2004). 

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provided only a hypothetical sequence of events, which demonstrates that there is no “clear and 

present need for equitable relief.” Wisconsin Gas, 758 F.2d at 674. Hypothetical injuries are 

“far too speculative to warrant preliminary injunctive relief.” Chaplaincy, 454 F.3d at 298. 

Plaintiffs’ irreparable harm resulting from the alleged “civil and criminal liability” (Mem. 

at 10) depends upon the institution and completion of an investigation by the Commission or the 

Department of Justice.21 Setting aside the fact that the Commission, the sole defendant here, has 

no criminal jurisdiction and that never in its history has it tried to enforce a prior restraint on 

anyone’s speech, the harm plaintiffs fear is far from imminent. Congress carefully designed the 

Act’s enforcement procedures “to ensure fairness . . . to respondents.” See Perot v. FEC, 97 F.3d 

553, 559 (D.C. Cir. 1996). As Congress presumably was aware, under the Act’s elaborate 

enforcement procedures — which include multiple opportunities for a respondent to file briefs 

and permit only a court to impose a remedy on a respondent unwilling to agree to one — 

“complaints filed shortly before elections . . . might not be investigated and prosecuted until after 

the event.” Id. at 559 (recounting statutory enforcement procedures). Accordingly, the 

likelihood that plaintiffs would suffer anything beyond an investigative proceeding during the 

life of a preliminary injunction is remote. Wisconsin Right to Life, Inc. v. FEC, No. 04-1260, 

2006 WL 2666017, at *5 (D.D.C. Sept. 14, 2006) (“[A]n FEC administrative investigation . . . 

carries little threat of imminent or certain sanction.”). Even if an administrative proceeding 

during that time then concluded with the institution of an enforcement suit against plaintiffs, they 

would then have a full opportunity to present their constitutional arguments de novo to a federal 

court before they could be subject to any penalties for their conduct. See generally 2 U.S.C. 

 

21 The Commission has “exclusive jurisdiction with respect to the civil enforcement” of 

FECA, 2 U.S.C. § 437c(b)(1), and the Department of Justice has criminal jurisdiction, 28 U.S.C. 

§ 516. 

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§ 437g(a)(4)-(6). That distant eventuality is manifestly not imminent. Wisconsin Right to Life, 

2006 WL 2666017, at *5 (“It is clear that even if an administrative investigation is opened, the 

investigation likely would not conclude until long after the . . . ad has been broadcast.”).22

C. None of Plaintiffs’ Alleged Harms Is Beyond Remediation 

Finally, plaintiffs must demonstrate that their alleged injury is “beyond remediation.” 

Chaplaincy, 454 F.3d at 297, or “irreparable,” Wisconsin Gas, 758 F.2d at 674. As the D.C. 

Circuit has explained, “[m]ere injuries, however substantial, in terms of money, time and energy 

necessarily expended in the absence of a stay are not enough. The possibility that adequate 

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

litigation weighs heavily against a claim of irreparable harm.” Chaplaincy, 454 F.3d at 297-98. 

 None of plaintiffs’ claimed harms is irreparable. For example, the administrative burdens 

on political committees that arise from complying with the disclosure requirements constitute 

“[m]ere injuries” of “money, time and energy.” 454 F.3d at 297. In addition, having to respond 

to an administrative enforcement proceeding is simply not irreparable harm. As the Supreme 

Court has explained: 

[The plaintiff] argues that the expense and disruption of defending itself in 

protracted adjudicatory proceedings constitutes irreparable harm. As indicated 

above, we do not doubt that the burden of defending this proceeding will be 

substantial. . . . As we recently reiterated: “Mere litigation expense, even 

substantial and unrecoupable cost, does not constitute irreparable injury.” 

Renegotiation Board v. Bannercraft Clothing Co., 415 U.S. 1, 24 (1974). 

 

FTC v. Standard Oil Co. of Cal., 449 U.S. 232, 244 (1980); see also Sears Roebuck & Co. v. 

NLRB, 473 F.2d 91, 93 (D.C. Cir. 1972). Thus, any burden associated with responding to a 

 

22 Moreover, at the moment the Commission is functioning with only two sitting 

Commissioners. Because it takes four votes to institute an investigation, find probable cause to 

believe the Act has been violated, and institute a civil enforcement action, 2 U.S.C. §§ 437c(c), 

437g(a)(2),(4),(6), the votes necessary to begin and pursue the investigation SpeechNow 

allegedly fears cannot be imminent. 

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possible future FEC enforcement proceeding cannot constitute irreparable harm warranting 

preliminary injunctive relief. 

D. A Preliminary Injunction Temporarily Barring Enforcement Of The 

Act Could Not Prevent Plaintiffs’ Alleged Harm 

 At its core, plaintiffs’ allegation of harm is that they are afraid to engage in their 

proposed activities because they fear being found liable for violating the Act. The emergency 

relief plaintiffs seek here, however, provides no real protection against that eventuality, and it 

would therefore not redress the subjective fear plaintiffs allege. As we explain below, because a 

preliminary injunction would not permanently immunize unlawful actions taken during the 

pendency of the preliminary relief, plaintiffs cannot “demonstrate that the injunction will prevent 

the feared deprivation of free speech rights.” Chaplaincy of Full Gospel Churches, 454 F.3d at 

301 (citation and quotation marks omitted). 

 Even if this Court were to enter the preliminary injunction sought by plaintiffs, if in 

subsequent proceedings the provisions of the Act plaintiffs challenge were found by the 

D.C. Circuit or the Supreme Court to be constitutional — or if the preliminary injunction itself 

were reversed on appeal — plaintiffs could be subject to a civil enforcement action by the 

Commission under the retroactivity doctrine. See James B. Beam Distilling Co. v. Georgia, 

501 U.S. 529, 532 (1991); Harper v. Virginia Dep’t of Taxation, 509 U.S. 86, 97-98 (1993). 

Under that doctrine, if upon further review a court determines that a legislative enactment was in 

fact constitutional, it is applied as if it was always in effect. “[A]n opinion announcing a rule of 

federal law ... ‘appl[ies] retroactively to the litigants then before the Court.’” Harper, 509 U.S. 

at 97-98 (quoting Beam, 501 U.S. at 539 (opinion of Souter, J.)). 

 Moreover, “when th[e] Court applies a rule of federal law to the parties before it, that rule 

is the controlling interpretation of federal law and must be given full retroactive effect in all 

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cases still open on direct review and as to all events, regardless of whether such events predate or 

postdate our announcement of the rule.” Harper, 509 U.S. at 97. As Justice Scalia has put it, the 

decision of an Article III court announces the law “as though [it] were ‘finding’ it — discerning 

what the law is, rather than decreeing what it is ... changed to, or what it will tomorrow be.” 

Beam, 501 U.S. at 549 (Scalia, J., joined by Marshall, J., and Blackmun, J., concurring) 

(emphasis omitted). Thus, in this case, if plaintiffs’ constitutional challenge ultimately fails on 

the merits, entry of a preliminary injunction would not remove the prospect of a civil 

enforcement action by the Commission that plaintiffs allege will deter them from abiding by the 

rules applicable to political committees. 

 More specifically, because a preliminary injunction is by its very nature a temporary 

remedy meant to preserve the status quo, it does not create a permanent or appeal-proof blanket 

of immunity for actions taken during the period in which it is in effect. “Neither the terms of the 

preliminary injunction nor prior equity practice provides any support for an interpretation of the 

District Court’s order as a grant of total immunity from future prosecution. More fundamentally, 

federal judges have no power to grant such blanket dispensation from the requirements of valid 

legislative enactments.” Edgar v. MITE Corp., 457 U.S. 624, 648-49 (1982) (Stevens, J. 

concurring).23 See also Suster v. Marshall, 149 F.3d 523, 527 (6th Cir. 1998) (“If this Court 

were to determine that the district court erred in issuing the preliminary injunction, then the legal 

interests and positions of Plaintiffs ... would be compromised as they have received no 

assurances that grievances will not be pursued”) (citing Justice Stevens’ concurrence in MITE); 

Donaldson v. United States Dep’t of Labor, 930 F.2d 339, 346 (4th Cir. 1991) (parties’ action 

 

23 Although Justice Stevens’ concurrence was not joined by any other Justice, only Justices 

Marshall and Brennan, in dissent, expressed the view that the “injunction would have barred the 

Secretary from seeking either civil or criminal penalties for violations of the Act that occurred 

during [the] period” the preliminary injunction was in effect. Id. at 656. 

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during the period of the preliminary injunction “was taken under the manifest legal and practical 

risk that their underlying claim might ultimately fail on the merits, thereby exposing them to 

whatever remedy, other than the preventive one they had forestalled, might then be available”) 

(footnote omitted).24

V. THE RELIEF REQUESTED BY PLAINTIFFS WOULD HARM THE 

COMMISSION AND UNDERCUT THE PUBLIC INTEREST

Permitting plaintiffs to evade the Act’s requirements regarding contributions to political 

committees — including both the individual and aggregate contribution limits, and the 

requirements that political committees register with and report their receipts to the 

Commission — would hinder the public interest and substantially injure the Commission. 

To prevail on their application for a preliminary injunction, plaintiffs must establish precisely the 

opposite. CityFed. Fin. Corp., 58 F.3d at 746. Because of the strong public and Commission 

interest in enforcement of the federal campaign finance laws, plaintiffs’ proposed injunction 

would substantially injure other parties and would not further the public interest. 

The statutory provisions challenged by plaintiffs have been on the books for more then 

thirty years. Indeed, the requirements for registration and reporting by political committees in 

2 U.S.C. §§ 432, 433 and 434, and the definition of political committee in 2 U.S.C. § 431(4) 

 

24 In addition, a preliminary injunction against enforcement by the Commission in this case 

would do nothing to prevent the Attorney General of the United States from exercising his 

independent authority to bring a criminal prosecution for knowing and willful violations of the 

Act. United States v. Int’l Union of Operating Eng’rs, Local 701, 638 F.2d 1161, 1163-68 (9th 

Cir. 1979); United States v. Tonry, 433 F.Supp. 620, 622 (E.D. La. 1977); see 2 U.S.C. § 437g(d) 

(criminal penalties for violating FECA); 2 U.S.C § 437c(b)(1) (“The Commission shall have 

exclusive jurisdiction with respect to the civil enforcement [of the Act.]”) (emphasis added). 

Because plaintiffs have only sought a preliminary injunction restraining the Commission, and 

because neither the United States nor the Attorney General are parties before this Court, the 

injunction that plaintiffs seek would be ineffective in preventing law enforcement proceedings 

against them even during the limited time a preliminary injunction would be in effect. 

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were enacted by Congress in 1971.25 The individual contribution limits in 2 U.S.C. 

§§ 441a(a)(1)(C) and 441a(a)(3)(B) and were enacted in 1974 and 1976.26 The Act’s 

contribution limits and registration and reporting provisions were generally upheld by the 

Supreme Court in Buckley in 1976. 

“The public has a strong interest in the enforcement of laws passed by Congress and 

signed by the President.” Wisconsin Right to Life, 2006 WL 2666017, at *5. As explained 

above, see supra at 8, there is a “presumption of constitutionality which attaches to every Act of 

Congress,” and that presumption is “an equity to be considered in favor of . . . [the government] 

in balancing hardships.” Walters, 468 U.S. at 1324. As Chief Justice Rehnquist stated in the 

similar context of a requested injunction pending appeal, “barring the enforcement of an Act of 

Congress would be an extraordinary remedy.” Wisconsin Right to Life, Inc. v. FEC, 542 U.S. 

1306, 1306 (2004) (Rehnquist, C.J.) (citation omitted). 

The public interest both in the limits on contributions to political committees and the 

registration and reporting requirements for political committees, is abundantly clear. 

As discussed supra section IV.A.2, the Supreme Court has already upheld the limit on 

contributions to political committees, the aggregate annual ceiling on individual contributions to 

candidates and political committees, and the registration and reporting requirements for political 

committees. A temporary lifting of the Act’s contribution limits during the 2008 election, even 

limited to SpeechNow, could easily undermine the public’s confidence in the federal campaign 

financing system. 

 

25 Federal Election Campaign Act of 1971, Pub. L. No. 92-225, §§ 301-306, 86 Stat. 3, 11-

16 (Feb. 7, 1972). 

26 Federal Election Campaign Act Amendments of 1974, Pub. L. No. 93-443, § 101, 

88 Stat. 1263 (Oct. 15, 1974); Federal Election Campaign Act Amendments of 1976, Pub. L. No. 

94-283, Title I, § 112(2), 90 Stat. 475 (May 11, 1976). 

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In addition, relieving SpeechNow of its registration and reporting obligations would 

deprive the public of important information regarding who is financing advertisements that 

Congress mandated be disclosed. While plaintiffs concede that they must file reports pursuant to 

2 U.S.C. § 434(c) for each independent expenditure they make, those reports provide less 

information than the periodic reports filed by political committees. See supra section II.B. 

Thus, the relief sought by plaintiffs would prevent the achievement of Congress’s goals of 

“‘shed[ding] the light of publicity’ on campaign financing,” McConnell, 540 U.S. at 231 

(quoting Buckley, 424 U.S. at 81), and protecting the “‘First Amendment interests of individual 

citizens seeking to make informed choices in the political marketplace,’” id. at 197 (quoting 

McConnell, 251 F. Supp. 2d at 237). 

 Granting plaintiffs’ motion for preliminary injunction would also “substantially injure” 

the Commission and the public. CityFed Fin., 58 F.3d at 746. As Justice Rehnquist explained, 

“any time a State is enjoined by a court from effectuating statutes enacted by representatives of 

its people, it suffers . . . injury.” New Motor Vehicle Bd. of Calif. v. Orrin W. Fox Co., 434 U.S. 

1345, 1351 (1977) (Rehnquist, J., in chambers). The Commission and the public are similarly 

harmed when a court proscribes enforcement of a federal statute. “[E]njoining the FEC from 

performing its statutory duty constitutes a substantial injury to the FEC.” Wisconsin Right to 

Life, 2006 WL 2666017, at *5; see also Christian Civic League of Maine, Inc. v. FEC, 433 F. 

Supp. 2d 81, 90 (D.D.C. 2006). 

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44

CONCLUSION 

For the foregoing reasons, the Commission respectfully requests that the Court deny 

plaintiffs’ motion for a preliminary injunction. 

Respectfully submitted, 

Thomasenia P. Duncan (D.C. Bar No. 424222) 

General Counsel 

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

Associate General Counsel 

Kevin Deeley 

Assistant General Counsel 

Robert W. Bonham III (D.C. Bar No. 397859) 

Senior Attorney 

/s/ Steve N. Hajjar

Steve N. Hajjar 

Attorney 

Esa L. Sferra 

Attorney 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street NW 

Washington, DC 20463 

Dated: March 5, 2008 (202) 694-1650 

Case 1:08-cv-00248-JR Document 13 Filed 03/05/2008 Page 54 of 54