ORAL ARGUMENT HAS NOT YET BEEN SCHEDULED 

No. 13-5008

IN THE

United States Court of Appeals 

for the District of Columbia Circuit ______________ 

STOP THIS INSANITY, INC., et al., 

Appellants, 

v. 

FEDERAL ELECTION COMMISSION, 

Appellee. ______________ 

On Appeal From the 

United States District Court for the District of Columbia 

in Case No. 12-1140 (BAH) ______________ 

BRIEF OF APPELLANTS 

______________ 

DAN BACKER

DB CAPITOL

STRATEGIES, PLLC 

209 Pennsylvania Ave. SE, 

Ste. 2109 

Washington, D.C. 20003 

202-210-5431 

dbacker@dbcapitolstrategies.com 

PATRICIA E. ROBERTS

JESSICA L. DELANEY

BRYAN U. GIVIDEN

WILLIAM & MARY LAW 

SCHOOL APPELLATE 

AND SUPREME COURT 

CLINIC 

P.O. Box 8795 

Williamsburg, VA 23187 

757-221-3821 

perobe@wm.edu 

TILLMAN J. BRECKENRIDGE

REED SMITH LLP 

1301 K Street, NW 

Washington, D.C. 20005 

202-414-9200 

tbreckenridge@reedsmith.com 

April 23, 2013 Counsel for Appellants 

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CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES 

A. Parties and Amici 

The following parties appeared before the district court as plaintiffs and now 

appear before this court as appellants: Stop This Insanity, Inc., Stop This Insanity, 

Inc. Employee Leadership Fund, Glengary, LLC, Todd Cefaratti, and Ladd 

Ehlinger. The following party appeared before the district court as the defendant 

and now appears before this court as appellee: Federal Election Commission. 

1. Stop This Insanity, Inc.

Stop This Insanity, Inc. (“STI”) is a 501(c)(4) grassroots membership 

association pending approval by the Internal Revenue Service. It solicits funds in 

order to provide every American with access to the technology and means to be 

engaged and civically responsible citizens and to empower individuals to take 

action in their communities to restore our founding principles of individual liberty, 

limited government, and free markets. Stop This Insanity, Inc. has no parent 

corporation and does not issue any stock. 

2. Stop This Insanity, Inc. Employee Leadership Fund

Stop This Insanity, Inc. Employee Leadership Fund (“the Leadership Fund”) 

is a separate segregated fund for Stop This Insanity, Inc. It is organized according 

to the statutory and regulatory requirements of the Federal Election Campaign Act 

of 1971, 2 U.S.C. §§ 431 et seq. (2006). The Leadership Fund was created to 

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engage citizens about which political candidates best promote the principles of 

individual liberty, limited government, and free markets. 

3. Glengary, LLC

Glengary, LLC is a limited liability corporation located in the State of 

Arizona. 

4. Todd Cefaratti

Mr. Todd Cefaratti is a Director and Officer (President) of Stop This 

Insanity, Inc. and within the restricted class of the Leadership Fund. 

5. Ladd Ehlinger

Mr. Ladd Ehlinger is not affiliated with Stop This Insanity, Inc. or the 

Leadership Fund. He is not a Director or Officer of the organization, nor a 

member of the restricted class. 

B. Rulings Under Review 

The ruling under review is contained in the Memorandum Opinion on 

November 5, 2012, by United States District Court Judge Beryl A. Howell. 

C. Related Cases 

This case was originally before the United States District Court for the 

District of Columbia as Case No. 1:12-cv-01140. There are no related cases. 

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TABLE OF CONTENTS 

Page 

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES .............. i 

TABLE OF CONTENTS ......................................................................................... iii 

TABLE OF AUTHORITIES .................................................................................... vi 

GLOSSARY OF ABBREVIATIONS ...................................................................... xi 

JURISDICTIONAL STATEMENT .......................................................................... 1 

ISSUE PRESENTED ................................................................................................. 1 

STATUTES ................................................................................................................ 1 

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

STATEMENT OF FACTS ........................................................................................ 4 

A. The Federal Election Campaign Act And Separate Segregated 

Funds ..................................................................................................... 4 

B. The Leadership Fund, An SSF, Decides to Speak Out On 

Political Matters .................................................................................... 5 

C. The Commission Splits On Whether The Amount And Source 

Restrictions And Solicitation Prohibition Apply To The 

Leadership Fund In Light Of Citizens United ....................................... 7 

D. The Leadership Fund Silences Itself For Fear of Prosecution 

And Seeks Declaratory Judgment ......................................................... 9 

SUMMARY OF ARGUMENT ............................................................................... 12 

STANDARDS OF REVIEW ................................................................................... 16 

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ARGUMENT ........................................................................................................... 17 

I. RESTRICTING THE LEADERSHIP FUND’S RIGHT TO 

SOLICIT, RECEIVE, AND MAKE INDEPENDENT 

EXPENDITURES UNCONSTITUTIONALLY ABRIDGES 

ITS POLITICAL SPEECH RIGHTS BASED ON ITS 

ORGANIZATIONAL FORM ............................................................. 17 

A. The Leadership Fund’s Independent Rights To Associate 

and Engage In Political Speech May Not Be Abridged 

Based On Its Organizational Form ........................................... 17 

B. No Government Interest Exists to Restrict The 

Leadership Fund’s Right To Engage In Political Speech 

Through Non-Contribution Expenditures ................................. 27 

II. THE RESTRICTIONS ON SOURCES AND AMOUNTS OF 

CONTRIBUTIONS TO SSFs VIOLATE THE FIRST 

AMENDMENT AS APPLIED TO PROHIBIT 

CONTRIBUTIONS TO A NON-CONTRIBUTION 

ACCOUNT .......................................................................................... 31 

A. Source Restrictions Are Subject To Strict Scrutiny ................. 31 

B. The Anti-Corruption Interest Does Not Apply To NonContribution Expenditures And May Not Be Used To 

Justify The Source Restrictions As Applied To The 

Leadership Fund ........................................................................ 32 

III. THE SOLICITATION PROHIBITION FAILS ANY LEVEL 

OF SCRUTINY AS APPLIED TO THE LEADERSHIP FUND 

BECAUSE IT DOES NOT FURTHER THE ANTICORRUPTION OR ANTI-COERCION INTERESTS ...................... 40 

A. Strict Scrutiny Applies To The Solicitation Prohibition........... 40 

B. The Solicitation Prohibition Does Not Further The AntiCorruption Interest .................................................................... 43 

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C. The Solicitation Prohibition Does Not Further An AntiCoercion Interest ....................................................................... 45 

IV. THE LEADERSHIP FUND DID NOT WAIVE ITS SECTION 

441b(a) CHALLENGE ....................................................................... 51 

V. THE DISTRICT COURT IMPROPERLY DENIED THE 

LEADERSHIP FUND’S REQUEST FOR A PRELIMINARY 

INJUNCTION ..................................................................................... 54 

CONCLUSION ........................................................................................................ 57 

CERTIFICATE OF COMPLIANCE 

CERTIFICATE OF FILING AND SERVICE 

ADDENDUM 

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TABLE OF AUTHORITIES *

Page(s) 

CASES 

Aktieselskabet AF 21 November 2001 v. Fame Jeans Inc., 

 525 F.3d 8 (D.C. Cir. 2008) ........................................................................... 16 

Austin v. Mich. Chamber of Commerce, 

 494 U.S. 652 (1990)........................................................................... 21, 24, 39 

Blount v. SEC, 

 61 F.3d 938 (D.C. Cir. 1995) ......................................................................... 42 

Buckley v. Valeo, 

 424 U.S. 1 (1976) ...................................................................17, 21, 27, 44, 57 

Cal-Med. Ass’n v. FEC, 

 453 U.S. 182 (1981)....................................................................................... 37 

Carey v. FEC, 

 791 F. Supp. 2d 121 (D.D.C. 2011) ............................................. 6, 8, 9, 35, 52 

Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of New York, 

 447 U.S. 557 (1980)....................................................................................... 41 

Chaplaincy of Full Gospel Churches v. England,

454 F.3d 290 (D.C. Cir. 2006) ................................................................. 54, 55 

Citizens Against Rent Control v. City of Berkeley, 

 454 U.S. 290 (1981)................................................................................. 32, 56 

*Citizens United v. FEC, 

 130 S. Ct. 876 (2010) ............................... 1, 3, 4, 7, 10, 11, 12, 13, 14, 15, 16, 

17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 

27, 28, 29, 30, 31, 32, 33, 39, 42, 43, 44, 

45, 48, 54, 56 

 

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

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Davis v. FEC, 

 554 U.S. 724 (2008)........................................................................... 28, 47, 48 

Elrod v. Burns, 

 427 U.S. 347 (1976)....................................................................................... 55 

*EMILY’s List v. FEC, 

 581 F.3d 1 (D.C. Cir. 2009) ............................... 7, 8, 9, 11, 13, 14, 17, 20, 21, 

22, 30, 32, 33, 34, 36, 37, 38, 39, 46, 47 

Eu v. San Francisco County Democratic Central Comm., 

 489 U.S. 214 (1989)....................................................................................... 17 

FEC v. Massachusetts Citizens for Life, Inc.,

479 U.S. 238 (1986)................................................................................. 24, 25 

FEC v. Wisconsin Right to Life, Inc., 

 551 U.S. 449 (2007)................................................................................. 27, 56 

First Nat. Bank of Boston v. Bellotti, 

 435 U.S. 765 (1978)...............................................................18, 19, 21, 28, 44 

Freedman v. Maryland,

380 U.S. 51 (1965) ......................................................................................... 54 

Garrison v. Louisiana,

379 U.S. 64 (1964) ......................................................................................... 57 

Gordon v. Holder, 

 632 F.3d 722 (D.C. Cir. 2011) ....................................................................... 17 

Groden v. Random House, Inc., 

 61 F.3d 1045 (2d Cir. 1995) .......................................................................... 42 

Lorillard Tobacco Co. v. Reilly, 

 533 U.S. 525 (2001)....................................................................................... 41 

Mills v. District of Columbia, 

 571 F.3d 1304 (D.C. Cir. 2009) ......................................................... 54, 55, 57 

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Nat’l Right to Work Comm. v. FEC, 

 459 U.S. 197 (1982)................................................................................. 44, 45 

N.C. Right to Life, Inc. v. Leake, 

 525 F.3d 274 (4th Cir. 2008) ......................................................................... 38 

N.Y. Times v. Sullivan,

376 U.S. 254 (1964)....................................................................................... 57 

Pacific Gas & Elec. Co. v. Public Util. Comm’n, 

 475 U.S. 1 (1986) ........................................................................................... 19 

Pickering v. Board of Educ. Twp. High School, 

 391 U.S. 563 (1968)....................................................................................... 23 

Rudder v. Williams, 

 666 F.3d 790 (D.C. Cir. 2012) ....................................................................... 16 

*SpeechNow.org v. FEC, 

 599 F.3d 686 (D.C. Cir. 2010) ................................. 7, 8, 9, 10, 11, 13, 27, 28, 

29, 30, 31, 32, 33, 34, 36, 38, 39, 48 

Speiser v. Randall, 

 357 U.S. 513 (1958)....................................................................................... 23

Village of Schaumberg v. Citizens for a Better Environment, 

 444 U.S. 620 (1980)................................................................................. 40, 41 

CONSTITUTIONAL PROVISION 

U.S. CONST. amend. I ......................................... 1, 2, 3, 7, 10, 11, 12, 15, 17, 18, 19, 

22, 23, 24, 26, 27, 28, 29, 31, 32, 33, 

34, 39, 41, 42, 43, 45, 46, 47, 48, 53, 

54, 55, 56, 57 

STATUTES 

2 U.S.C. §§ 431 et seq. ............................................................................................... 1 

2 U.S.C. § 431(4) ..................................................................................................... 19 

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2 U.S.C. § 431(9)(A) ................................................................................................ 37 

2 U.S.C. § 431(17) ................................................................................................... 29 

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

2 U.S.C. § 441a(a)(1)(C) .................................................................... 5, 35, 52, 55, 57 

2 U.S.C. § 441a(a)(3) ..................................................................................... 5, 35, 52 

2 U.S.C. § 441b ........................................................................................ 4, 19, 49, 55 

2 U.S.C. § 441b(a) ............................................................................. 4, 51, 52, 53, 57 

2 U.S.C. § 441b(b) ..................................................................................................... 4 

2 U.S.C. § 441b(b)(2)(C) ......................................................................................... 23 

2 U.S.C. § 441b(b)(3)(A) ......................................................................................... 46 

2 U.S.C. § 441b(b)(3)(B) ......................................................................................... 46 

2 U.S.C. § 441b(b)(4)(A)(i) ........................................................................... 7, 44, 58 

2 U.S.C. § 441b(b)(4)(B) ................................................................................. 5, 7, 40 

2 U.S.C. § 441b(b)(4)(C) ........................................................................................... 5 

28 U.S.C. § 1291 ........................................................................................................ 1 

28 U.S.C. § 1331 ........................................................................................................ 1 

28 U.S.C. § 2201 ........................................................................................................ 1 

REGULATIONS 

11 C.F.R. § 104.4 ....................................................................................................... 6 

11 C.F.R. § 100.19 ..................................................................................................... 6 

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OTHER AUTHORITY 

Press Release, Federal Election Commission 

Statement on Carey v. FEC (Oct. 5, 2011), available at 

http://www.fec.gov/press/Press2011/20111006postcarey.shtml ....................... 34, 35 

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GLOSSARY OF ABBREVIATIONS 

ABBREVIATION DEFINITION

 

Act The Federal Election Campaign Act 

JA Joint Appendix 

The Leadership Fund Stop This Insanity, Inc. Employee 

Leadership Fund 

MCFL FEC v. Massachusetts Citizens for Life, 

Inc., 479 U.S. 238 (1986) 

NRWC Nat’l Right to Work Comm.v. FEC, 459 

U.S. 197 (1982) 

PAC Political Action Committee 

SSF Separate Segregated Fund 

STI Stop This Insanity, Inc. 

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JURISDICTIONAL STATEMENT 

The district court had jurisdiction under 28 U.S.C. § 1331. The case arises 

under the First Amendment, U.S. Const. amend I, the Federal Election Campaign 

Act (the “Act”), 2 U.S.C. §§ 431 et seq. (2006), and the Declaratory Judgment Act, 

28 U.S.C. § 2201. The district court dismissed the complaint on November 6, 

2012. On January 2, 2013, the Leadership Fund filed a timely notice of appeal. 

This Court has jurisdiction under 28 U.S.C. § 1291. 

ISSUE PRESENTED 

Whether a political committee that is connected to a corporation may solicit 

and accept contributions for independent expenditures from the general public in 

light of this Court’s pre-Citizens United ruling that non-connected political 

committees may do so and its post-Citizens United ruling that there is no

government interest in limiting contributions to a group engaging in independent 

expenditures. 

STATUTES 

The relevant statute appears in the Addendum. 

INTRODUCTION 

With only limited exceptions not at issue here, the government has no

interest in prohibiting any organization, based on its organizational structure, from 

raising unlimited amounts of money from the general public to engage in 

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independent expenditures expressing political viewpoints. Any such prohibition is 

plainly invalid under the First Amendment in light of clear precedent of the 

Supreme Court and this Court. The government may, as it does here and is 

unchallenged in this case, provide limited restrictions that ensure that an 

organization’s funds for use in direct campaign contributions be segregated to 

ensure compliance with laws related to such direct campaign contributions. But 

that is where the regulatory power ends in the context of restricting political 

speech. 

Stop This Insanity, Inc. Employee Leadership Fund (the “Leadership Fund”) 

is a political organization that is connected to a corporation. It may raise money 

from certain corporate employees and their family members (the “restricted 

class”), and it may use that money to fund direct campaign contributions or 

independent expenditures or other political speech and activities. By statute, the 

Leadership Fund may only solicit and accept contributions from the restricted 

class. But the statute is unconstitutional as applied here. 

The Leadership Fund, compliant with principles supporting restrictions on 

direct campaign contributions, intends to open a separate bank account into which 

it intends to solicit and receive unlimited contributions from the general public, and 

from which it intends to engage only in independent expenditures and other speech 

not in the form of campaign contributions (“non-contribution expenditures”). The 

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Federal Election Commission threatens to use regulations limiting the Leadership 

Fund’s practices with respect to direct campaign contributions in order to prohibit

it from using this separate bank account for non-contribution expenditures and 

related activities. 

Such a prohibition does not comport with precedent. Indeed, this Court has 

recognized both that (1) the government cannot prohibit non-connected political 

committees from operating as a “hybrid” organization, in which it engages in both 

direct contributions—which are subject to certain restrictions—and other 

expenditures for political speech, provided that the non-profit political committee 

segregates its restricted funds in a separate bank account, and (2) the only 

recognized governmental interest in restricting political speech, the anti-corruption 

interest, still applies to direct contributions after Citizens United, but it does not 

justify restrictions on non-contribution expenditures. The ineluctable conclusion 

after these rulings and Citizens United’s recognition that organizational structure 

cannot justify political speech restrictions is that a connected committee—which is 

a distinct legal entity—has just as much right to solicit and receive contributions 

for independent expenditures as a non-connected committee. 

The district court disagreed based on a narrow view of the First Amendment 

that expressly contravenes binding Supreme Court precedent. The district court 

prefaced its analysis by stating Justice Stevens’ dissent in Citizens United v. FEC, 

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130 S. Ct. 876 (2010), was correct to assert that the majority’s holding (that the 

government may not suppress political speech through independent expenditures 

on the basis of the speaker’s identity as a corporation absent the appearance of or 

actual quid pro quo corruption) did “not accord with theory or reality of politics.” 

JA235. The court then continued on with analysis that, grounded in a dissent 

rather than a majority opinion, was legally erroneous and otherwise failed to apply 

the law as determined by the Supreme Court. Thus, the decision below should be 

reversed. 

STATEMENT OF FACTS 

A. The Federal Election Campaign Act And Separate Segregated 

Funds. 

Under the Federal Election Campaign Act (the “Act”), a political committee 

may register as an organization called a separate segregated fund (“SSF”).1

 2 

U.S.C. § 441b(b). SSFs are connected to other organizations, such as corporations 

or labor unions, and they are limited both in their methods of obtaining funding 

and in the content and character of their speech. 2 U.S.C. § 441b. 

An SSF cannot receive any contribution from any corporation or union that 

is not its connected organization, 2 U.S.C. § 441b(a).2

 And money that an SFF can 

 

1

 A separate segregated fund is also referred to as a “connected committee.” 

2

 The connected entity may provide money for expenses, but that also is not 

considered a “contribution” under applicable law. 

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receive from individuals is capped by two restrictions: (1) contributions to 

any single SSF are, as with all PACs limited to $5,000 a year, 2 U.S.C. 

§ 441a(a)(1)(C); and (2) contributions to all SSFs in the aggregate cannot exceed 

$48,600, as indexed to inflation, per two year period, 2 U.S.C. § 441a(a)(3). The 

Act also prohibits SSFs from soliciting the general public; it may only solicit the 

statutory “restricted class” of its organization, a small subset of individuals related 

to the connected organization, like stockholders, members, and certain categories 

of employees. See 2 U.S.C. §§ 441b(b)(4)(B)-(C).3

 

Other organizations—including non-connected political action committees, 

unions, and corporations themselves—as well as individuals are not subject to 

these burdens on funding for non-contribution expenditures. JA46-47, 228. 

B. The Leadership Fund, An SSF, Decides to Speak Out On Political 

Matters. 

Stop This Insanity, Inc. Employee Leadership Fund (“the Leadership Fund”) 

is a political committee formed as an SSF. JA36. Its connected organization is 

Stop This Insanity, Inc. (“STI”), a small social welfare organization that does not 

make political expenditures or contributions. JA214-15. The Leadership Fund 

was founded by employees of Stop This Insanity, Inc. to increase civic engagement 

 

3

 Some individuals connected to restricted class members may also be solicited, 

subject to additional restrictions. For clarity and ease of reference, this brief refers 

to the “restricted class” as all people who may be solicited for contributions. 

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and promote American values. It does not coordinate any of its expenditure 

activities with candidates or political party committees or their agents. JA17. 

The Leadership Fund currently maintains a direct contribution bank account 

subject to the limitations, prohibitions, and reporting requirements of the Act. 

JA215. It seeks to further political speech on relevant issues by opening a separate 

non-contribution account and then using funds raised for that account to engage in 

non-contribution expenditures. JA216. And plaintiffs Glengary LLC and Ladd 

Ehlinger both seek to make contributions to the Leadership Fund in excess of 

current statutory limits for the sole purpose of advancing the Leadership Fund’s 

ability to engage in non-contribution expenditures. JA236. Thus, a “noncontribution account” would allow the Leadership Fund to solicit and receive 

contributions from outside of the restricted class and use those funds for speech 

such as independent expenditures, issue ads, and get-out-the-vote drives, but not to 

provide contributions to candidates.4

 JA215-16. The Leadership Fund does not 

dispute that contributions and expenditures from this account would be subject to 

the reporting requirements at 2 U.S.C. § 434(a), 11 C.F.R. § 100.19, and 11 C.F.R. 

§ 104.4. The traditional or “direct contribution” bank account would continue to 

be used for directly contributing to federal candidates. JA216. It also would 

 

4

 The district court referred to non-contribution accounts, also commonly referredto as “Carey accounts,” as “independent expenditure-only accounts.” 

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continue to be subject to the existing limits, source restrictions, and reporting 

requirements. JA215-16. 

C. The Commission Splits On Whether The Amount And Source 

Restrictions And Solicitation Prohibition Apply To The 

Leadership Fund In Light Of Citizens United. 

In the wake of the Supreme Court’s decision in Citizens United v. FEC, 130 

S. Ct. 876 (2010), and this Court’s decisions in EMILY’s List v. FEC, 581 F.3d 1 

(D.C. Cir. 2009) and SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir. 2010), the 

Leadership Fund believed that its First Amendment rights permit it to operate a 

“hybrid” PAC—one with a restricted account and a separate non-contribution 

account. JA11-12. But the Leadership Fund believed that it risked prosecution 

under the Act if it established a second bank account to solicit contributions from 

outside the restricted class even if those funds were solely used through a 

segregated account. JA18. To alleviate its concerns, the Leadership Fund 

submitted an advisory opinion request to the Federal Election Commission (the 

“Commission”). JA31-34, 216. The request asked whether “a connected PAC” 

may establish a non-contribution account “to solicit and accept contributions from 

the general public, corporations, and unions not subject to the restrictions of 2 

U.S.C. § 441b(b)(4)(A)(i) and 2 U.S.C. § 441b(b)(4)(B).” JA41; JA216. The next 

month, the Commission issued two opposing draft advisory opinions. JA41-71, 

217. 

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Draft Advisory Opinion A (“Draft A”), relying on this Court’s decisions in 

EMILY’s List and SpeechNow.org concluded that the Leadership Fund could 

“establish a non-contribution account and solicit and accept unlimited 

contributions from individuals, other political committees, corporations, and labor 

organizations” in addition to STI and its restricted class, provided that the 

Leadership Fund continue to adhere to the existing restrictions on soliciting 

employees. JA42. Draft A also looked to the Commission’s recent consent 

judgment in Carey v. FEC, 791 F. Supp. 2d 121 (D.D.C. 2011), which stated that 

the Commission would no longer enforce regulatory provisions that “prohibit nonconnected political committees from accepting contributions from corporations and 

labor organizations” nor “limit the amounts permissible sources may contribute to 

such accounts.” JA46. 

That SSFs operate differently than non-connected committees did not 

matter. Though SSFs can have their administrative costs paid by the connected 

organization, Draft A stated that the differences between the two structures did not 

create a different risk of quid pro quo corruption or the appearance of corruption. 

JA46-47. Accordingly, there was no compelling government interest in restricting 

the Leadership Fund’s ability to organize itself as a “hybrid” political committee 

that would operate one account to accept direct contribution funds and a second, 

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separate account to receive unlimited contributions for independent expenditures. 

JA48. 

Draft Advisory Opinion B (“Draft B”) claimed that the reasoning in 

EMILY’s List, SpeechNow, and Carey could not be applied to connected 

committees. JA64-65. Opinion B emphasized the differences between connected 

and non-connected political committees—in particular, the connected committee’s 

ability to have administrative costs paid by the organization to which it was 

connected without disclosing such costs. JA65-66. Thus, the contribution 

restrictions were purportedly constitutionally permissible. JA70. Opinion B found 

the second issue, the solicitation prohibition, was moot in light of how it resolved 

the first. JA71. 

The Commission later certified that it failed on a vote of 3-3 to approve 

either of the advisory opinions. JA73. Accordingly, no four-vote, binding 

advisory opinion was issued, and the Leadership Fund remained at risk for 

prosecution if it opened a non-contribution account. JA14. 

D. The Leadership Fund Silences Itself For Fear of Prosecution And 

Seeks Declaratory Judgment. 

Based on the Commission’s failure to issue a binding advisory opinion, the 

Leadership Fund abstained from speech during the 2012 election season in order to 

avoid prosecution. See JA18. Due to its small restricted class and the Act’s 

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restrictions on its speech and association, the Leadership Fund could not raise 

sufficient funds to run non-contribution expenditure campaigns. JA18. 

In June 2012, the Leadership Fund and other appellants filed a complaint 

requesting declaratory and injunctive relief to prevent the Commission from 

enforcing portions of the Act as applied to them. JA4. 

The Leadership Fund moved for a preliminary injunction shortly thereafter. 

JA79. In response, the Commission moved for dismissal as a matter of law, 

asserting that “Plaintiffs failed to demonstrate a constitutional right to make 

unrestricted solicitations to STI’s employees and the public for STI’s SSF because 

“Plaintiffs fail to demonstrate a constitutional right to finance such 

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

rules applicable to every other PAC engaging in similar engineering.” JA187, 188. 

In support, the Commission cited the portions of the decisions in Citizens United 

and SpeechNow upholding as constitutionally permissible certain disclosure 

requirements that SSFs are, in fact, not subject to. JA186-87. The Leadership 

Fund responded that it only asserted First Amendment rights consistent with other 

PACs, and it is Congress’s role, not the courts, to impose the same disclosure 

requirements on SSFs, if it chooses to do so. JA197-99. The Leadership Fund 

argued that Congress’s failure to regulate an activity—particularly one protected 

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under the First Amendment—does not render the unregulated actions 

constitutionally unprotected. JA199-203. 

On November 6, 2012, the district court disposed of both motions through 

an order denying the Leadership Fund’s motion for a preliminary injunction and 

granting the Commission’s motion to dismiss. JA212. The court recognized it was 

“not the [c]ourt’s prerogative to question the authority of” the Supreme Court and 

this Court’s decisions in Citizens United, EMILY’s List, and SpeechNow. JA221. 

It further acknowledged that this Court, in EMILY’s List, “endorsed the 

hybridization of political committees—at least when such political committees are 

not connected to a candidate, political party, corporation, or labor union.” JA229. 

But relying heavily on Justice Stevens’ “piercing dissent” in Citizens United, the 

court went on to rule that “[w]hen a single entity is allowed to make both limited 

and direct contributions and unlimited independent expenditures, keeping the bank 

accounts for those two purposes separate is simply insufficient to overcome the 

appearance that the entity is in cahoots with the candidates and parties that it 

coordinates with and supports.” JA240-41; see also JA235. The court pushed 

further, stating that the reasoning underlying constitutional protection for 

“‘hybrid’” political committees “is naïve and simply out of touch with the 

American public’s clear disillusionment with the massive amounts of private 

money that have dominated the political system, particularly since Citizens 

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United.” JA241. For that reason, it ruled that the contribution and solicitation 

restrictions do not violate the First Amendment, as applied to the Leadership Fund. 

JA250. 

On January 2, 2013 the Leadership Fund timely filed a notice of appeal. 

SUMMARY OF ARGUMENT 

The Leadership Fund is a political committee founded to increase civic 

engagement. It seeks to engage in collective speech through both (1) direct 

contributions to political candidates and (2) non-contribution expenditures for its 

own speech. The Leadership Fund is not directly associated with any candidate or 

political party. Following the Supreme Court’s decision in Citizens United 

individuals, corporations, unions, and non-profit political advocacy committees can 

engage in unlimited non-contribution expenditures. SSFs like the Leadership 

Fund, however, do not currently have clarity—or guidance from the 

Commission—regarding their ability to exercise their own First Amendment rights 

fully due to contribution and solicitation restrictions in the Act. 

As applied, the Act regulates the Leadership Fund’s ability to engage in 

political speech and association in two ways pertinent to this appeal: by limiting 

who may be solicited for contributions, and by regulating the amounts and sources 

of contributions. The Leadership Fund is subject to these restrictions based solely 

upon its status as a “connected” political action committee, or SSF, meaning it is 

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connected to another organization like a corporation or labor union. Other 

organizations—including non-connected political action committees, unions, and 

corporations themselves—as well as individuals are not subject to these 

restrictions. And as a result of these regulations restricting its right to associate, 

the Leadership fund is unable to finance non-contribution expenditures—speech—

that it would otherwise engage in. 

Laws that burden political speech and association—as do the restrictions 

that, as applied to the Leadership Fund, disallow a separate, non-contribution 

account—are subject to strict scrutiny. The government must demonstrate a 

compelling government interest for the restrictions and that the regulations are 

narrowly tailored to achieve that interest. But because the government has no valid 

interest to justify to the speech restrictions at issue here, they fail any constitutional 

test. After the Supreme Court’s decision in Citizens United, the only recognized 

compelling government interest for restrictions on campaign-related speech and 

associated financing activity is preventing apparent or actual quid pro quo 

corruption—the “anti-corruption interest.” But as articulated by both the Supreme 

Court in Citizens United and this Court in EMILY’s List and SpeechNow, the risk 

of a quid pro quo exchange is absent when a speaker engages in non-contribution 

expenditures. Contributions to a political committee that engages in nonUSCA Case #13-5008 Document #1432180 Filed: 04/23/2013 Page 25 of 76
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contribution expenditures and solicitations for such contributions similarly do not 

implicate the anti-corruption interest. 

This Court held in EMILY’s List that the government cannot prohibit nonconnected political committees from creating what amounts to a “hybrid” 

organization (in which a single political committee engages in both restricted 

expenditures and expenditures that are not regulated by the FEC) provided that the 

non-profit political committee maintains its funds in two separate bank accounts. 

581 F.3d at 12. This Court found that there was no risk of quid pro quo corruption 

simply by allowing EMILY’s List to also engage in non-contribution expenditures 

and maintain a bank account for those expenditures. The holding did not address 

connected committees because it was issued prior to Citizens United. After the 

Supreme Court held that a speaker’s organizational structure could not support 

restrictions on speech in Citizens United, applying this Court’s reasoning in 

EMILY’s List to connected political committees is both natural and necessary. 

The district court erred in its analysis on whether the contribution limits met 

a compelling government interest here. It conflated the legitimate and compelling 

anti-corruption interest with the rejected equalization and anti-distortion interests. 

Rather than address whether the restrictions prevented either corruption or the 

appearance of corruption, the court focused on a statutory exemption that allows 

the connected entity to pay the administrative costs of an SSF without disclosing 

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those costs. But that fact is irrelevant to whether the speech restrictions violate the 

First Amendment. It is not the Judiciary’s role to determine whether 

Congressional policy choices regarding which disclosures to demand give a 

speaker an unfair advantage justifying a muzzle. Under Citizens United, no

particular organizational form among political speakers justifies a muzzle. The 

district court’s concern that, by having its administrative costs paid by a connected 

corporation, SSFs have unbalanced speaking power does not involve a government 

interest against quid pro quo corruption at all. Instead, it solely raises the 

previously-rejected equalization interest. 

For similar reasons, the district court erred in upholding the solicitation 

restrictions. The power to solicit contributions to fund non-contribution activity is 

subject to the same protections as the power to provide contributions and the power 

to use the contributions to speak independently about candidates for office. Thus, 

the government interest against quid pro quo corruption has no relevance to the 

solicitation restrictions here. Additionally, the solicitation restrictions do not 

advance any anti-coercion interest as applied here. Even assuming employee 

coercion is a legitimate interest, prohibiting SSFs from soliciting non-employees 

does not advance that interest. The Leadership Fund seeks only to solicit third 

parties and the general public. It does not seek to skirt the limitations on 

solicitations of members of the restricted class. Third party and general public 

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solicitations would not have a coercive effect on the connected corporation’s 

employees and to the extent solicitation restrictions are applied to outlaw such 

solicitations, they are unconstitutional. Moreover, the restrictions are redundant—

a separate provision of the Act prohibits coercion. Therefore, invalidating the 

solicitation restrictions as applied here will not permit a corporation or a connected 

committee to threaten, retaliate against, or terminate employees of the corporation. 

The district court, in apparent disagreement with the Supreme Court’s 

decision in Citizens United, upheld contribution and solicitation restrictions based 

on purportedly compelling interests that have already been rejected by the Supreme 

Court. For that reason and more, the district court’s order dismissing this case and 

denying the Leadership Fund’s motion for a preliminary injunction should be 

reversed with directions to enter the preliminary injunction requested by the 

Leadership Fund. 

STANDARDS OF REVIEW 

This Court reviews the grant of a motion to dismiss de novo. Rudder v. 

Williams, 666 F.3d 790, 794 (D.C. Cir. 2012). A court “must assume all the 

allegations in the complaint are true [and] must give the plaintiff the benefit of all 

reasonable inferences derived from the facts alleged.” Aktieselskabet AF 21 

November 2001 v. Fame Jeans Inc., 525 F.3d 8, 17 (D.C. Cir. 2008) (citations and 

internal quotation marks omitted). When reviewing a denial of a preliminary 

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injunction, the Court reviews the denial for abuse of discretion, but any legal 

conclusions de novo. Gordon v. Holder, 632 F.3d 722, 724 (D.C. Cir. 2011). 

ARGUMENT 

I. RESTRICTING THE LEADERSHIP FUND’S RIGHT TO SOLICIT, 

RECEIVE, AND MAKE INDEPENDENT EXPENDITURES 

UNCONSTITUTIONALLY ABRIDGES ITS POLITICAL SPEECH 

RIGHTS BASED ON ITS ORGANIZATIONAL FORM. 

A. The Leadership Fund’s Independent Rights To Associate and 

Engage In Political Speech May Not Be Abridged Based On Its 

Organizational Form. 

Restrictions on the Leadership Fund’s ability to solicit and receive 

contributions to engage in independent expenditures implicate fundamental speech 

and association rights. Political expression is “at the core of our electoral process 

and of the First Amendment freedoms.” Buckley v. Valeo, 424 U.S. 1, 39 (1976) 

(citations omitted). Included in this core are contributions and expenditures about 

political campaigns. See EMILY’s List v. FEC, 581 F.3d at 5 (citing Buckley, 424 

U.S. at 14). Indeed, the First Amendment “has its fullest and most urgent 

application to speech uttered during a campaign for political office.” Citizens 

United, 130 S. Ct. at 898 (quoting Eu v. San Francisco County Democratic Central 

Comm., 489 U.S. 214, 223 (1989)). As such, “political speech must prevail against 

laws that would suppress it, whether by design or inadvertence.” Id. at 881. 

The First Amendment prohibits restrictions on political speech that 

distinguish among different speakers, allowing speech by some but not others. Id.

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at 883 (“We find no basis for the proposition that, in the context of political 

speech, the Government may impose restrictions on certain disfavored speakers.”). 

Such restrictions may operate as a means to control content and deprive the nonpreferred speaker “the right to use speech to establish worth, standing, and respect 

for the speaker’s voice.” Id. at 899. The Supreme Court has thus only recognized 

one narrow exception to the prohibition against identity-based distinctions—when 

the government performs a uniquely governmental function in limited settings, 

such as special restrictions within the military, corrections systems, and public 

schools. See id. (cataloguing cases). 

The First Amendment protects not only an individual’s political speech 

rights, but associational rights as well. And collective speech is no less protected 

because it comes from an association of individuals rather than a single individual. 

See id. at 904; First Nat. Bank of Boston v. Bellotti, 435 U.S. 765, 777 (1978) 

(stating that the worth of speech “does not depend on the identity of its source, 

whether corporation, association, union or individual”). As such, the government 

cannot make speech-based restrictions because the speaker is an association rather 

than an individual. Citizens United, 130 S. Ct. at 900. 

The government also may not restrict an association’s political speech based 

on how it chooses to organize itself. In determining the degree of First 

Amendment protection, it is irrelevant whether the speaker organizes itself as a 

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corporation, an association, a union, or otherwise. See Bellotti, 435 U.S. at 777 

(“The inherent worth of the speech in terms of its capacity for informing the public 

does not depend on the identity of its source, whether corporation, association, 

union, or individual.”); Pacific Gas & Elec. Co. v. Public Util. Comm’n, 475 U.S. 

1, 8 (1986) (plurality opinion) (“Corporations and other associations, like 

individuals, contribute to the discussion, debate, and the dissemination of 

information and ideas’ that the First Amendment seeks to foster.”) (quotation and 

marks omitted). Simply put, the government cannot penalize “certain disfavored 

associations of citizens” because they opt for a particular organizational form. 

Citizens United, 130 S. Ct. at 908. 

These principles, most recently articulated in Citizens United, extend to 

political committees like SSFs, which are simply collections of individuals 

grouping together to engage in political speech, see 2 U.S.C. § 431(4) (defining 

political committee), separately from the organizations to which they are 

connected, see Citizens United, 130 S. Ct. at 897 (“A PAC is a separate association 

from the corporation.”), and independently from any candidates or political parties. 

Thus, the connected organization’s ability to speak is not an excuse to restrict 

contributions to the SSF. It is a separate association, with separate rights to engage 

in political speech. See id. (holding that “Section 441b is ban on corporate speech 

notwithstanding the fact that a PAC created by a corporation can still speak” 

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because a PAC is a separate association from the corporation and thus, the PAC’s 

own ability to speak “does not allow corporations to speak”). 

In EMILY’s List v. FEC, this Court considered FEC regulations that required 

some associations to fund expenditures through accounts—called “hard money 

accounts”—subject to source and amount restrictions. See 581 F.3d at 5, 16-18 

(describing the regulations). EMILY’s List agreed that direct contributions to 

candidates and administrative expenses should be paid out of its hard money 

account, but wanted to use a separate account to make other expenditures. 

This Court concluded that “hybrid PACs”—political committees engaging in 

both direct contributions and non-contribution expenditures—like EMILY’s List 

are constitutionally protected from restrictions on non-contribution expenditures. 

In so holding, the Court noted that making direct contributions does not somehow 

pollute the independence of the non-contribution expenditures. Id. at 12. 

Maintaining separate accounts was the appropriate method of maintaining the 

independence necessary to avoid the anti-corruption interest. See id. at 18. Thus, 

the regulations were invalid. Id. 

The district court distinguished EMILY’s List based on the fact that 

EMILY’s List was a non-connected organization. JA229-30. But that was error. 

EMILY’s List—decided while Citizens United was pending—came against the 

backdrop of a legal regime that still allowed speech restrictions based on 

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organizational form. See EMILY’s List, 581 F.3d at 7 (identifying as an 

“overarching principle of relevance” that “the Court has been more tolerant of 

regulation of for-profit corporations and labor unions”). At that time, the 

prevailing reading of precedent supported a belief that SSFs implicated an antidistortion interest due to their association with their connected organizations. See 

Austin v. Mich. Chamber of Commerce, 494 U.S. 652, 688 (1990) (applying the 

anti-distortion interest to corporations). 

But Citizens United overturned Austin and eliminated distinctions between 

“non-profit” and “for-profit,” and between “non-connected” and “connected.” 

Compare EMILY’s List, 581 F.3d at 7-8 (using as one of its guiding principles that 

“the Court has upheld laws that prohibit for-profit corporations and unions from 

making expenditures for activities expressly advocating the election or defeat of a 

federal candidate”) (citing Austin, 494 U.S. 652 (1990)) with Citizens United, 558 

U.S. at 913 (“Due consideration leads to this conclusion: Austin should be and now 

is overruled. We return to the principle established in Buckley and Bellotti that the 

Government may not suppress political speech on the basis of the speaker’s 

corporate identity. No sufficient governmental interest justifies limits on the 

political speech of nonprofit or for-profit corporations.”). 

Some types of connected political committees still raise valid anti-corruption 

concerns. For example, national political parties are so closely associated with the 

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candidates that the anti-corruption interest is still implicated. See EMILY’S List at

14 (discussing the national political parties “inherent relationship with federal 

candidates and officeholders”). But other connected political committees do not 

raise these concerns. SSFs are not so closely connected with a candidate, and they 

certainly are no more closely connected with a candidate than non-connected 

PACs. And after Citizens United, any interests in anti-distortion or anti-corruption 

because of an affiliation with a corporation or labor union are invalid. 

EMILY’s List and Citizens United establish that any speaker that is not 

directly associated with a candidate or political party has a First Amendment right 

to make contributions without giving up the right to make unlimited uncoordinated 

political expenditures. 

But the district court cast EMILY’s List aside, ruling that the structure of 

SSFs rendered them vulnerable to restrictions on their speech and that the 

contribution and solicitation restrictions were valid. JA224-25, 240-42, 249-50. It 

resolved that “SSFs are creatures of statute” and thus, they are at the whim of 

Congress on what constitutional rights they may exercise. JA250. Throughout its 

opinion, the district court attempts to distinguish SSFs from non-connected 

committees and other organizational forms by asserting that “there is a major 

statutory trade-off for SSFs”; namely, “that an SSF can have all of its 

administrative and solicitations costs paid for by its connected corporation and 

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need not report the amount or source of those funds, but in order to enjoy those 

financial, non-disclosure, and non-reporting benefits the SSF must limit its 

solicitation base.” JA222-23. Therefore, the court asserts, it is “eminently 

reasonable and important for connected PACs to abide by Congress’s 

countervailing restriction on the universe of people to whom SSFs’ solicitations 

may be directed” under 2 U.S.C. § 441b(b)(2)(C). JA250. To hold otherwise, 

“would allow the disclosure and reporting exception to swallow the rule.” Id. 

But this reasoning ignores the bedrock constitutional principle that the 

government cannot exact as the price of a benefit the surrender of First 

Amendment rights. See Pickering v. Board of Educ. Twp. High School, 391 U.S. 

563, 568 (1968) (rejecting that “teachers may constitutionally be compelled to 

relinquish the First Amendment rights they would otherwise enjoy as citizens to 

comment on matters of public interest in connection with the operation of the 

public schools in which they work”); Speiser v. Randall, 357 U.S. 513, 518 (1958) 

(holding that because a tax exemption is a “privilege” or “bounty” does not 

preclude its denial from constituting an impermissible infringement of speech). 

After Citizens United, the exemptions passed by Congress 37 years ago may allow 

SSFs to “have their cake and eat it too,” JA251, but neither the district court nor 

the Commission may craft opinions or regulatory interpretations that create a 

solicitation regime that they believe Congress “would have wanted” following 

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Citizens United. Rather, if the exemptions create anomalous results after Citizens 

United, it is Congress’s role to fashion the appropriate balances among statutory—

and not constitutional—rights. 

Moreover, the district court’s resolution rests on the fallacy that the 

Leadership Fund can, with no greater burden, create another political action 

committee rather than open up a separate bank account. JA242 n.25. But that is 

beside the point. The Leadership Fund has its own First Amendment rights. And 

there can be no dispute that they are burdened by restricting contributions and 

solicitations. The First Amendment prohibits the government from restricting 

political speech by distinguishing among speakers based solely on their identity (or 

corporate form). Thus, the court’s assertion that SSFs are “completely unnecessary 

to allow the plaintiffs to engage in unlimited independent expenditures, 

individually or together,” JA224, is a constitutionally infirm justification under the 

First Amendment. 

Requiring the Leadership Fund to clone itself to make independent 

expenditures—rather than allow the Leadership Fund to use a non-contribution 

account—is proof of the burden. The availability of avenues “more burdensome 

than the one foreclosed is ‘sufficient to characterize [a regulatory interpretation] as 

an infringement on First Amendment activities.’” Austin, 494 U.S. at 708 

(Kennedy, J., dissenting) (quoting FEC v. Massachusetts Citizens for Life, Inc.,

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479 U.S. 238, 255 (1986) (“MCFL”)). The additional requirements of creating a 

second political committee “may create a disincentive for [plaintiffs] to engage in 

political speech. Detailed record-keeping and disclosure obligations, along with 

the duty to appoint a treasurer and custodian of the records, impose administrative 

costs that many small entities may be unable to bear. Furthermore, such duties 

require a far more complex and formalized organization than many small groups 

could manage.” MCFL, 479 U.S. at 254-55. See also Citizens United, 130 S. Ct. 

at 897 (establishing a PAC is burdensome); MCFL, 479 U.S. at 263 (“While the 

burden on MCFL’s speech [establishing a political committee] is not 

insurmountable, we cannot permit it to be imposed without a constitutionally 

adequate justification.”). 

Indeed, if the onerous ability to disband and reform or create a second more 

favored organizational structure is all that justifies restricting speech absent a 

compelling interest, it is surprising that the Supreme Court in Citizens United did 

not justify the corporate independent expenditure bans because the individuals 

forming the corporation could merely disband it and engage in the same speech if 

they acted as individuals. Similarly, at the time Citizens United was decided, the 

Citizens United organization operated an SSF for a decade and made candidate 

contributions. But this did not prevent the Court in Citizens United from implicitly 

rejecting Justice Stevens’s position that if Citizens United wanted to speak right 

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before the primary, all it needed to do was “abjure business contributions or use the 

funds in its PAC, which by its own account is “one of the most active conservative 

PACs in America.” Citizens United, 130 S. Ct. at 944 (Stevens, J., dissenting). 

Thus, the availability of other organizational forms to speak through did not justify 

the independent expenditure restrictions in Citizens United, and it should not 

justify the restrictions here. 

It is of no moment that SSFs are “creatures of statute.” Corporations are 

creatures of statue and non-connected PACs are creatures of statute. The Supreme 

Court expressly held in Citizens United that corporations’ status as organizations 

does not limit their rights to free speech or give Congress free reign to muzzle 

them in exchange for the benefits received. Nor would it be reasonable to allow 

Congress unfettered discretion to limit non-connected PACs’ ability to solicit and 

receive contributions if Congress simply chose to exempt some contributions from 

disclosure. By the same token, connected committees do not cede their First 

Amendment rights simply by organizing in a way that allows them to receive 

operating expenses from another organization without disclosing the amount of 

operating expenses they receive. And if that creates an “unfair” advantage, it is 

Congress’s role, not the Judiciary’s, to eliminate the “advantage” through methods 

that do not squelch the fundamental rights to speech and association to which SSFs 

and their contributors are entitled. 

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B. No Government Interest Exists to Restrict The Leadership Fund’s 

Right To Engage In Political Speech Through Non-Contribution 

Expenditures. 

Focusing on organizational structure, the district court lost sight of the 

critical inquiry—what interest the government has in restricting the Leadership 

Fund’s exercise of its First Amendment rights. It has none. “Laws that burden 

political speech are subject to strict scrutiny, which requires the Government to 

prove that the restriction furthers a compelling interest and is narrowly tailored to 

achieve that interest.” Citizens United, 130 S. Ct. at 898 (quoting FEC v. 

Wisconsin Right to Life, Inc., 551 U.S. 449, 464 (2007) (opinion of Roberts, C.J.)) 

(quotation marks omitted). In the context of restricting political speech in 

connection with campaign financing, the Supreme Court has only recognized one 

interest that may outweigh the First Amendment interests: preventing quid pro quo 

corruption or the appearance of such corruption (the “anti-corruption interest”). 

SpeechNow, 599 F.3d at 692. 

The anti-corruption interest was first recognized in Buckley v. Valeo and 

used to sustain a limit on direct contributions to political candidates. See Buckley, 

424 U.S. at 24-26. Because of the close coordination between the political 

candidate and the contributor, the Supreme Court reasoned that direct contributions 

could be given “to secure a political quid pro quo” and that “the scope of such 

pernicious practices can never be reliably ascertained.” Id. at 27. That interest was 

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limited to quid pro quo corruption. Citizens United, 130 S. Ct. at 909-10. The 

appearance of favoritism and influence do not justify restrictions on political 

speech. Id. Rather, “[r]eliance on a generic favoritism or influence theory . . . is at 

odds with standard First Amendment analyses because it is unbounded and 

susceptible to no limiting principle.” Id. at 910 (quotation and marks omitted). 

Several other purported governmental interests to justify restrictions on 

independent expenditures have been analyzed and rejected over time. Equalizing 

differing viewpoints has never been a legitimate interest. See Citizens United, 130 

S. Ct. at 904 (citing Davis v. FEC, 554 U.S. 724, 741-42 (2008)). Neither has 

protecting competing views of members within an association. See id.; see also 

Bellotti, 435 U.S. at 794-95 (stating that shareholders may engage in corporate 

democracy to direct the view of a corporation, and are presumed competent to 

protect their own interests). The Supreme Court overruled any reliance on an 

“anti-distortion interest”—the theory that the government has an interest in 

preventing the effects of “immense aggregation of wealth” might have on public 

support for ideas—in Citizens United. See id. at 904-05. And this Court sitting en 

banc in SpeechNow dismissed an “informational interest” in ‘“identifying the 

sources of support for and opposition to’ a political position or candidate” as “not 

enough to justify the First Amendment burden.” SpeechNow, 599 F.3d at 692. 

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Indeed, the only governmental interest supporting restrictions on political 

speech is the anti-corruption interest. Id. But that interest is not implicated by 

non-contribution expenditures. Citizens United, 130 S. Ct. at 909. Independent 

expenditures, by definition, are completely un-coordinated with any candidate or 

party. 2 U.S.C. § 431(17) (2006) (“The term ‘independent expenditure’ means an 

expenditure by a person (A) expressly advocating the election or defeat of a clearly 

identified candidate; and (B) 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.”). Other 

non-contribution expenditures involve even less concern about corruption and have 

traditionally been considered less regulable.5

 JA237-38. Because they are 

uncoordinated, private speakers cannot make non-contribution expenditures as a 

corrupting “quid” for a politician’s corrupt “quo.” See SpeechNow, 599 F.3d at 

694-95; see also Citizens United, 130 S. Ct. at 909. (“independent expenditures, 

including those made by corporations, do not give rise to corruption or the 

appearance of corruption”). 

Despite the unequivocal rejection of the anti-distortion and equalization 

interests as justifications for restrictions on independent expenditures, the district 

court relied on these interests without qualification to fashion an exception to the 

 

5

 As a practical matter, any First Amendment protection independent expenditures 

receive also applies to other non-contribution expenditures. 

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holdings in Citizens United, EMILY’s List, and SpeechNow. JA225 (antidistortion: “[O]fficials with control of the money spigot at the connected 

corporation can completely dominate the operations and contribution policies of 

the SSF.”); JA224 (equalization: “In this manner, political committees would be 

able to influence the electoral process to an extent disproportionate to their public 

support and far greater than the individual or group that finances the committee’s 

operations would be able to do acting alone.”). And it relied on the plainly 

inapplicable anti-corruption interest. 

The district court improperly distinguished SSFs from other political 

committees and then, because of these purported differences, justified creating an 

unsupported carve-out from the uncontroverted principle that independent 

expenditures do not implicate the anti-corruption interest. Indeed, to support this 

novelty, the district court relied on the dissent in Citizens United—the very 

analysis the majority rejected in finding that the anti-corruption interest cannot

justify restrictions on independent expenditures. JA235 (“the ‘belief that quid pro 

quo arrangements can be neatly demarcated from other improper influences does 

not accord with the theory or reality of politics.’” (quoting Citizens United, 130 S. 

Ct. at 961 (Stevens, J., dissenting))); JA240 (stating that allowing organizations to 

provide both direct contributions and make independent expenditures “is naïve and 

simply out of touch with the American public’s clear disillusionment with the 

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massive amounts of private money that have dominated the political system, 

particularly since Citizens United” (citing Citizens United, 130 S. Ct. at 964 

(Stevens, J., dissenting))). Thus, the district court’s carve-out of SSFs from the 

constitutional protections other PACs and organizations enjoy is wholly 

unsupported by the jurisprudence of both the Supreme Court and this Court. 

II. THE RESTRICTIONS ON SOURCES AND AMOUNTS OF 

CONTRIBUTIONS TO SSFs VIOLATE THE FIRST AMENDMENT 

AS APPLIED TO PROHIBIT CONTRIBUTIONS TO A NONCONTRIBUTION ACCOUNT. 

A. Source Restrictions Are Subject To Strict Scrutiny. 

Under any standard, the government does not have any interest sufficient to 

justify restricting SSFs from receiving contributions from contributor outside of 

the restricted class, or the amounts of the contributions, for the purpose of 

engaging in non-contribution expenditures. Laws, like these restrictions, that 

“burden political speech are subject to strict scrutiny, which requires the 

government to prove that the restriction furthers a compelling interest and is 

narrowly tailored to achieve that interest.” Citizens United, 130 S. Ct. at 898 

(quotation and marks omitted). But the Court need not resolve which level of 

scrutiny is applicable because the government cannot provide a sufficient interest 

for the restrictions here under any test. See SpeechNow, 599 F.3d at 696 (applying 

that methodology). 

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B. The Anti-Corruption Interest Does Not Apply To NonContribution Expenditures And May Not Be Used To Justify The 

Source Restrictions As Applied To The Leadership Fund. 

The Supreme Court has recognized only one interest that justifies 

restrictions on contributions for political speech: the anti-corruption interest. 

SpeechNow, 599 F.3d at 695. And the anti-corruption interest is not implicated by 

non-contribution expenditures—whether in making them or receiving contributions 

for them. See id. at 692-93; Citizens United, 130 S. Ct. at 909. The Supreme 

Court and this Court have also held that limits on contributions to groups that make 

independent expenditures are necessarily restrictions on their expenditures. See 

Citizens Against Rent Control v. City of Berkeley, 454 U.S. 290, 299-300 (1981); 

EMILY’s List v. FEC, 581 F.3d 1 (D.C. Cir. 2009). Combined, these principles 

demonstrate that the anti-corruption interest cannot justify the limits for funding 

non-contribution expenditures as applied to the Leadership Fund. Thus, as applied 

here, the source restrictions prohibiting the Leadership Fund from receiving 

contributions from outside of the restricted class fail any test of constitutionality. 

“All that matters is that the First Amendment cannot be encroached upon for 

naught.” SpeechNow, 599 F.3d at 695. 

In SpeechNow, a nonprofit association that intended to engage in express 

advocacy sought a ruling that limits on contributions to the organization were 

unconstitutional as applied. Id. at 689. At the outset, the Court recognized that in 

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order to regulate financing of political advocacy, the government “must have a 

countervailing interest that outweighs the limit’s burden on the exercise of First 

Amendment rights.” Id. at 692. It then noted that the Supreme Court has rejected 

all purported governmental interests “suggested as a justification for contribution 

or expenditure limits” except the interest against corruption or the appearance of 

corruption. Id. Those rejected interests include equalization, identification of 

sources of funds, and anti-distortion. Id. 

Because the contributions sought were solely for financing independent 

expenditures, the anti-corruption interest was not implicated. Id. at 694-95 (“In 

light of the Court’s holding as a matter of law that independent expenditures do not 

corrupt or create the appearance of quid pro quo corruption, contributions to 

groups that make only independent expenditures also cannot corrupt or create the 

appearance of corruption.”). Thus, the contribution limits were invalid under any 

standard. 

That the Leadership Fund would also make direct contributions from a 

separate, highly regulated account does not change this analysis. Citizens United, 

EMILY’s List, and SpeechNow concluded that making non-contribution 

expenditures, receiving contributions to make non-contribution expenditures, and 

separately making direct contributions in addition to non-contribution expenditures 

do not implicate the anti-corruption interest beyond the direct contributions 

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themselves. Though the cases’ holdings invalidated the restrictions as applied to 

specific types of speakers (i.e. nonprofit associations), their reasoning is not 

limited solely to the particular organizational form at issue in those cases. Rather, 

the only identity-based exception that can be supported for political committees is 

one for committees directly associated with a candidate or political party. 

EMILY’s List, 581 F.3d at 7. And of course political parties have far different 

relationships with candidates than SSFs. Indeed, the candidates run for office in 

their parties’ names. 

“[C]ontributions to groups that make only independent expenditures also 

cannot corrupt or create the appearance of corruption.” SpeechNow, 599 F.3d at 

695. It follows—as the FEC has recognized6

—that contributions to bank accounts 

that make only independent expenditures and other non-contribution expenditures 

cannot corrupt elected government officials or create the appearance of corruption 

either. That much is clear in this Court’s holding in EMILY’s List, 581 F.3d at 19, 

that, so long as the organization maintained separate accounts for independent 

expenditures and direct contributions, an organization could not, consistent with 

the First Amendment, be prohibited in engaging in non-contribution expenditures. 

 

6 See, e.g., FEC Statement on Carey v. FEC: Reporting Guidance for Political 

Committees that Maintain a Non-Contribution Account (Oct. 5, 2011), available at 

http://www.fec.gov/press/Press2011/20111006postcarey.shtml. 

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The district court already applied these principles to 2 U.S.C. 

§§ 441a(a)(1)(c) and 441a(a)(3) in another case and held the anti-corruption 

interest inapplicable. In Carey v. FEC, 791 F. Supp. 2d 121 (D.D.C. 2011), the 

court found that non-connected committees “are not the same as political parties” 

and therefore, “do not cause the same concerns of quid pro quo money for access.” 

Id. at 131 (emphasis in original). Moreover, even if some compelling interest had 

existed, that court—correctly following the Supreme Court—concluded the 

restrictions were not sufficiently narrowly tailored. Id. 

The Commission chose not to appeal. Instead, it entered into a consent 

judgment stating that it would “no longer enforce statutory and regulatory 

provisions that prohibit non-connected political committees from accepting 

contributions from corporations and labor organizations, provided the political 

committee maintains and deposits those contributions into a non-contribution 

account.”7

 Under current Commission enforcement policy, then, non-connected 

political committees may engage in unrestricted independent expenditures and 

restricted direct contributions. 

Despite Carey and the Commission’s agreement to the consent judgment, 

the district court in this case concluded that the same principles underlying those 

decisions do not apply to the Leadership Fund; rather, the Leadership Fund’s 

 

7

 Press Release, Federal Election Commission Statement on Carey v. FEC (Oct. 5, 

2011), available at http://www.fec.gov/press/Press2011/20111006postcarey.shtml. 

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activities risk an appearance of corruption. JA235-36, 239-41, 247-48. It made 

two errors while reaching that conclusion. First, the district court isolated this 

Circuit’s holdings in SpeechNow and EMILY’s List from each other and failed to 

follow the reasoning that led to each court’s holding. JA236 n.19 (“declin[ing] the 

plaintiff’s invitation” to “conclude that the dual-account model supplied by 

EMILY’s List for hybrid PACs to be read in tandem with SpeechNow to expand 

SpeechNow’s holding to any organization that engages in some amount of 

independent expenditure activity.”). Second, it based its analysis on artificial, 

inaccurate, and irrelevant distinctions emphasizing the relationship between the 

SSF and the connected organization, but failing to identify a distinction that links 

SSFs with candidates they purportedly corrupt. As a result, the district court relied 

on distinctions that make no difference from either a factual or constitutional 

perspective. The three mistaken distinctions it makes are between (1) expenditures 

and independent expenditures, (2) connected and non-connected organizations, and 

(3) contribution allocation limitations and contribution amount limitations. 

The district court distinguished EMILY’s List as involving only 

“expenditures” and not “independent expenditures,” which are among the noncontribution expenditures the Leadership Fund intends to make. JA229 n.15 

(noting that the EMILY’s List Court was “careful not to use the statutory term of art 

‘independent expenditure’ . . . because the plaintiffs in EMILY’s List did not 

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engage in any express advocacy communications that would have been considered 

‘independent expenditures’”). It also implied that independent expenditures give 

rise to corruption. JA239 (“[A]s the Court’s preceding analysis makes clear, the 

‘independence’ of hybrid PAC expenditures is suspect.”). It is wrong for three 

reasons. 

First, the record in EMILY’s List indicates that EMILY’s List did make 

independent expenditures. See Brief of Plaintiff-Appellant, EMILY’s List, 581 

F.3d 1 (No. 08-5422), 2009 WL 772945 (drawing a comparison between EMILY’s 

List and a political committee in a previous case because they both “made 

independent expenditures to influence federal elections”). Second, the term 

“expenditure”—both in EMILY’s List and generally—includes independent 

expenditures. 2 U.S.C. § 431(9)(A) (“expenditure” is “any purchase, payment . . . 

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

election for Federal office.”). See also EMILY’s List, 581 F.3d at 9 (describing a 

right to make unlimited expenditures as the right to “raise and spend unlimited 

money in support of candidates for elected office”). Thus, the reasoning that 

applies to expenditures applies to all expenditures, including independent 

expenditures. Finally, the Court quoted cases that specifically addressed 

independent expenditures to support its reasoning regarding expenditures 

generally. EMILY’s List, 581 F.3d at 9 (citing Cal-Med., 453 U.S. at 203); id. at 11 

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(citing N.C. Right to Life, Inc. v. Leake, 525 F.3d 274, 292 (4th Cir. 2008)). All of 

EMILY’s List’s reasoning about expenditures applies to independent expenditures. 

Holding to the contrary is like animal control refusing to apply a leash law on a 

bulldog because the law uses the term “dogs,” but not “bulldogs.” 

The district court’s distinction between “allocation restrictions” and 

“contribution limits” is also a distinction without a difference. The allocation 

restrictions in EMILY’s List acted as contribution limits. For instance, one 

provision forced certain political committees “to use their hard-money accounts to 

pay 100% of the costs of advertisements or other communications that ‘refer’ to a 

federal candidate.” EMILY’s List, 581 F.3d at 17. By “allocating” the expenditure 

to the hard money account—a term used to identify an account that is subject to 

contribution limitations—the regulation effectively limited the receipts for that 

purpose. Allocation restrictions channel money into accounts that limit how much 

political committees can raise from contributors. The effect of limiting 

contributions is the problem, not the separation into a specific bank account. 

The non-connected versus connected distinction does not matter either. The 

district court dedicates a lengthy footnote to distinguishing EMILY’s List, JA237 

n.21, and a briefer one to distinguish SpeechNow, JA239 n.23, on this ground. 

Rather than explore why this Court viewed connected PACs and non-connected 

PACs differently in those cases, the district court did “not venture to speculate as 

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to the doctrinal importance of the non-connected nature.” JA237 n.21. The 

doctrinal importance is clear though. As previously explained, the reason that 

connected status mattered when EMILY’s List was decided was because Austin

authorized differentiating among speakers based on organizational structure. See

supra, § 1.A. But Austin was overturned in Citizens United, 130 S. Ct. at 913, 

which expressly held that such discrimination among speakers based on 

organizational identity is unconstitutional. 

Finally, the district court erred by finding that there is an appearance of 

corruption because the independent layperson may not be aware that the entity’s 

spending comes from two separate bank accounts. This contradicts the court’s 

recommendation that the Leadership Fund clone itself to create a separate action 

committee engaging in the same activity: the second committee, the court 

concedes, could bear essentially the same name, which would not alter the 

perception of the layperson. JA242-43 n.25. Thus, this reasoning is nothing more 

than upholding a political speech restriction based on an organization’s chosen 

form—a prohibited, identity-based restriction under the First Amendment. 

None of the district court’s distinctions or caveats warrant departing from 

the reasoning in EMILY’s List and SpeechNow—let alone binding Supreme Court 

precedent—regarding the anti-corruption interest. And the import of those cases is 

inescapable. Political committees whose expenditures are made independently 

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from political parties or candidates do not pose a risk of quid pro quo corruption or 

the appearance of quid pro quo corruption. Without that interest, the Commission 

cannot justify the burden on the Leadership Fund’s speech. 

III. THE SOLICITATION PROHIBITION FAILS ANY LEVEL OF 

SCRUTINY AS APPLIED TO THE LEADERSHIP FUND BECAUSE 

IT DOES NOT FURTHER THE ANTI-CORRUPTION OR ANTICOERCION INTERESTS. 

A. Strict Scrutiny Applies To The Solicitation Prohibition. 

The Leadership Fund seeks to solicit the general public for contributions to 

its non-contribution account—the same right that any non-connected political 

committee, business, or individual has. This would allow the Leadership Fund to 

engage in collective speech with other private citizens. Current law permits SSFs 

to solicit only individuals in a “restricted class,” subject to certain restrictions. See

2 U.S.C. § 441b(b)(4)(B) (defining the “restricted class” as “any stockholder, 

executive or administrative personnel, or employee of a corporation or the families 

of such persons” of the connected organization). The Leadership Fund is not 

requesting that the Court invalidate the limitations on solicitations directed at those 

in the restricted class. Instead it seeks the ability to make generalized 

advertisement solicitations and targeted solicitations to individuals unrelated to the 

Leadership Fund or its connected organization. 

Given its inherent nature as political speech, strict scrutiny should apply to 

the solicitation ban. In Village of Schaumberg v. Citizens for a Better 

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Environment, 444 U.S. 620 (1980), the Court concluded that soliciting financial 

support in many contexts was protected by the First Amendment. Id. at 833. Any 

regulation of solicitation had to be “undertaken with due regard for the reality that 

solicitation is characteristically intertwined with informative and perhaps 

persuasive speech seeking support for particular causes or for particular views on 

economic, political, or social issues.” Id. at 834. 

Thus, the Supreme Court has afforded different levels of protections to 

different types of solicitations. For example, a solicitation to engage in unlawful 

behavior is completely unprotected. See Lorillard Tobacco Co. v. Reilly, 533 U.S. 

525, 579 (2001) (Thomas, J., concurring in part and concurring in the judgment); 

see also id. at 552 (“[T]he state may prohibit inchoate offenses that attach to 

criminal conduct, such as solicitation.”) (O’Connor, J., opinion of the Court). 

Solicitations to engage in a purely commercial transaction have received 

intermediate scrutiny. Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of 

New York, 447 U.S. 557, 562 (1980) (defining commercial speech as “speech 

proposing a commercial transaction” and later applying intermediate scrutiny). 

And solicitations for charitable contributions that would be partially used for 

charitable purposes and partially to pay salaries warranted a higher level of 

scrutiny. Village of Schaumberg, 444 U.S. at 637 (permitting regulations that 

serve the government’s “legitimate interests . . . by narrowly drawn regulations 

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designed to serve those interests without unnecessarily interfering with First 

Amendment freedoms”). Solicitation is not a separate category of speech; it is 

both speech and a corollary to speech, and receives at least the same protection as 

the type of speech it arises in the context of. E.g., Groden v. Random House, Inc., 

61 F.3d 1045, 1052 (2d Cir. 1995) (dismissing false advertising claim regarding 

advertisement of a book). Solicitation for contributions to fund political speech 

necessarily involves making protected political speech so that potential 

contributors are persuaded to provide funds. Therefore, because the solicitation 

prohibition burdens political speech, strict scrutiny applies. See Citizens United, 

130 S. Ct. at 898 (“laws that burden political speech are subject to strict scrutiny”) 

(quotation and marks omitted); Blount, 61 F.3d at 941 (“solicitation of political 

funds is close to the core of protected speech”).

Solicitations are particularly important to a small group like the Leadership 

Fund. Because the Leadership Fund is not connected to a large for-profit 

corporation or union, its restricted class is tiny—only seven people and their family 

members at the time of the Advisory Opinion request. JA196. Thus, contrary to 

the district court’s assertion that “the act of soliciting money in certain amounts, by 

itself, does not warrant strong First Amendment protection—even if it is for the 

purpose of later engaging in protected speech,” JA245, solicitations of people 

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outside of the restricted class are vital to the Leadership Fund’s and the general 

public’s First Amendment rights. 

In any event, the solicitation prohibition does not comport with the First 

Amendment under any level of scrutiny for much the same reasons that the 

contribution prohibitions are unconstitutional. The district court identified two 

potential interests that the government sought to protect through the solicitation 

prohibition: the anti-corruption interest and the anti-coercion interest. Neither 

justifies prohibiting an organization from soliciting funds to engage in independent 

expenditures. 

B. The Solicitation Prohibition Does Not Further The AntiCorruption Interest. 

For similar reasons to those stated above, solicitation restrictions do not 

further the anti-corruption interest. Solicitation restrictions are another form of 

source restrictions. See Citizens United, 130 S. Ct. at 909. And as discussed 

previously, source restrictions for funding non-contribution expenditures do not 

give rise to actual or perceived corruption of a candidate. See, infra, § II.B. Thus, 

because the anti-corruption interest cannot justify restrictions on non-contribution 

expenditures or the sources of funds for non-contribution expenditures, it follows 

that it also does not apply to restrictions on solicitation restrictions for funding to 

make non-contribution expenditures. 

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The district court, however, incorrectly relied upon NRWC—which involved 

a challenge to § 441b(b)(4)(A)(i)’s prohibition on an SSF soliciting beyond the 

membership of its restricted class—to justify the solicitation prohibition based on 

the anti-corruption interest. See JA246-47. NRWC does not control this case, and 

the anti-corruption interest is not implicated despite the district court’s assertion 

otherwise. 

In Citizens United, the Supreme Court specifically addressed and limited 

NRWC’s holding to restrictions on solicitations for funds that would finance direct 

contributions to candidates. See id. at 909 (finding that NRWC was of little 

relevance because NRWC was “no more than . . . a restriction on a corporation’s 

ability to solicit funds for its segregated PAC, which made direct contributions to 

candidates” while Citizens United was challenging only independent 

expenditures—not restrictions on direct contributions ). And the Leadership 

Fund’s proposed solicitation is for funding non-contribution expenditures only. 

Indeed, in light of Citizens United, NRWC is not persuasive authority. It 

wrongly assumed that identity-based distinctions are permissible. See NRWC, 459 

U.S. at 210-211. The Court in Citizens United cited it as the first case to rely on a 

“flawed historical account of campaign finance laws” to begin deviating from the 

rules in Buckley and Bellotti. Citizens United, 130 S. Ct. at 912. And NRWC

relied on two justifications—the anti-distortion interest and the shareholder 

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protection interest, see NRWC, 459 U.S. at 207-08—that the Supreme Court has 

since rejected. See Citizens United, 130 S. Ct. at 904-08 (rejecting the antidistortion interest); id. at 911 (rejecting the shareholder protection interest). 

Therefore, both the holding and the reasoning of NRWC are inapposite in this case. 

Accordingly, First Amendment protections against solicitation prohibitions 

are the same as those for contribution prohibitions and independent expenditure 

prohibitions—the only cognizable government interest is preventing actual or 

apparent quid pro quo anti-corruption. And the anti-corruption interest is not 

implicated because the related speech is, by definition, not coordinated with a 

candidate’s campaign. 

C. The Solicitation Prohibition Does Not Further An Anti-Coercion 

Interest. 

The district court concluded that the prohibition protected a different interest 

as well: an anti-coercion interest. Preventing employees from being coerced into 

contributing to a political committee may be a legitimate governmental interest 

justifying restrictions on speech within the workplace, but the Court need not 

decide that question because such an interest is not implicated by the solicitation 

prohibition as applied here. 

The purported concern about employee coercion in the campaign finance 

context is that an employer will use its economic power to compel employees to 

contribute. JA247-49. The restrictions on soliciting employees allegedly prevent 

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compulsion by forcing solicitations to be made in a way to prevent any implicitly 

threatening situations. JA248-49. Solicitations of the restricted class must be 

made by written letter to the employees’ residences, and the restrictions make it 

difficult to track who does, and does not respond to the solicitation. See 2 U.S.C. 

§ 441b(b)(3)(B). Because the regulations remove the potential of a corporation 

coercing employees in the workplace, the narrow focus of anti-coercion interest is 

preventing threats of retaliation. On top of these constraints, the Act renders 

coercion illegal. The paragraph immediately before the solicitation ban prohibits 

separate segregated funds from using any financial resource “secured by physical 

force, job discrimination, financial reprisals, or the threat of force, job 

discrimination, or financial reprisals.” 2 U.S.C. § 441b(b)(3)(A). None of this 

would be upset by ruling in the Leadership Fund’s favor. 

EMILY’s List similarly involved solicitation restrictions. If a solicitation 

expressed an intent that the money would be used in support of a “clearly 

identified candidate or party,” it was subject to contribution limitations. See 

EMILY’s List, 581 F.3d at 17-18. That burden was qualitatively and quantitatively 

less restrictive than the solicitation prohibition here because EMILY’s List could 

solicit a much broader group and had broad freedom to tailor its message. But this 

Court still concluded that the provision at issue in EMILY’S List violated the First 

Amendment. Because EMILY’s List was entitled to raise unlimited funds, it had a 

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First Amendment right to solicit people without the government dictating the form 

or scope of its message. See id. at 18. (“Non-profits are entitled to raise money for 

their soft-money accounts to help support their preferred candidates, yet this 

regulation prohibits non-profits from saying as much in their solicitations.”) The 

Court supported that conclusion, in part, with the principle that a “provision that 

requires choice between ‘unfettered political speech’ and ‘discriminatory 

fundraising limitations’ violates the First Amendment.” Id. at 18 (citing Davis, 

554 U.S. at 726). And that is exactly what the solicitation restriction here imposes. 

Moreover, allowing the solicitations the Leadership Fund seeks would not 

have any coercive effect on members of the restricted class. All that would result 

from the Leadership Fund having a separate non-contribution account is that the 

Leadership Fund would create general advertisements and directly solicit members 

of the general public who are not members of the restricted class. Of course, an 

employee would not be coerced by hearing a radio advertisement, seeing an 

internet advertisement, or otherwise running across general advertising. If the 

employee does not want to see or hear the message, the employee may stop 

watching or listening to it. Unlike directed solicitations, the employee has no 

social or employment obligation to be solicited. And without a targeting or 

tracking mechanism, the employer cannot retaliate when employees choose to tune 

out. 

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Direct solicitations of third parties likewise do not implicate the anticoercion interest. Restricted class members need not even be aware of the 

Leadership Fund’s targeted solicitations of third parties; without such knowledge, 

it would be impossible for these solicitations to affect the employees, much less 

coerce them. Even if anti-coercion was a legitimate interest, it could only be 

achieved through the narrow restraint on targeting communications to nonrestricted class employees. 

The district court, however, concluded that the anti-coercion interest applied 

here and justified the solicitation prohibition. JA247-49. In so concluding, the 

court conflated the employee coercion interest with the discredited anti-distortion 

and equalization interests. It cited Justice Stevens’ dissent in Citizens United, 

discussing the anti-distortion interest and then stated that “allowing unlimited 

amplification of corporate political speech will also inevitably chill the political 

speech of corporate employees whose views diverge from their corporate 

employers.” JA247-48. The government may not, however, restrict one party’s 

speech in order to enhance the voice of others. Davis, 554 U.S. at 742. 

Therefore, because the solicitation prohibition does not further the anticoercion interest, that interest cannot support restricting the Leadership Fund’s 

First Amendment rights under any level of scrutiny. SpeechNow, 599 F.3d at 696. 

And, under strict scrutiny as would apply to any restriction on solicitations in 

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furtherance of non-contribution speech, the solicitation prohibition would be too 

broadly tailored to permissibly serve the anti-coercion interest. 

Moreover, under the “closely drawn” tailoring of intermediate scrutiny or 

narrow tailoring of strict scrutiny, the solicitation prohibition runs far afield of any 

reasonable demarcation of an appropriate infringement on speech and association 

to meet a government need. The Leadership Fund is absolutely prohibited from 

discussing a topic with all but a select few individuals. In fact, the only people the 

Leadership Fund may talk to are the ones actually at risk for coercion. This 

scheme prohibits far more speech than is necessary to protect the employees from 

being coerced, failing the closely drawn standard and the over-inclusive prong of 

narrow tailoring. 

The district court did not correctly analyze whether the solicitation 

prohibition was narrowly tailored. Instead of comparing the burden on speakers’ 

constitutionally protected rights with the government’s purported interests, it 

balanced the burden on speech against an alleged benefit that Congress conferred. 

JA249 (“The solicitation restrictions in § 441b are also narrowly drawn to serve the 

foregoing governmental interests because the restrictions are tailored to match the 

special benefit that Congress extended SSFs—exempting all funds used for the 

‘establishment, administration, and solicitation of contributions to a [SSF]” from 

the definition of ‘contributions.’”)). Tailoring under either strict scrutiny or 

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intermediate scrutiny is not concerned with the benefit the government provides, 

only its justification for any speech restriction.8

The district court’s analysis of burden imposed on speech here is particularly 

problematic because of what it means for future cases. Under its theory, the 

government can restrict speech as much as it likes so long as it provides a 

countervailing “special benefit.” For example, Congress could grant nonconnected political committees or other associations the same “special benefit” that 

it grants SSFs and that would be a sufficient basis to prohibit them from soliciting 

the general public. If the government can strip constitutional rights by granting 

purportedly offsetting statutory benefits, no speaker is safe from Congress’s 

generosity. 

The Leadership Fund has a right to raise unlimited funds for its noncontribution expenditures. The restrictions on solicitation go beyond merely 

dictating the form of message to entirely prohibiting the message. Because the 

prohibition does not further any government anti-corruption or anti-coercion 

 

8

 The Leadership Fund also takes issue with calling the contribution exemption a 

“special benefit,” much less one that is evenly balanced against a debilitating 

limitation on non-contribution expenditures that supposedly offsets it. The district 

court seems to presume that the lack of speech regulation is a “special benefit,” 

when in reality it should be the beginning point. When the government regulates 

speech, it must justify regulation; the speaker does not have to explain why the 

government should let it speak. 

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interests, the restriction has no legitimate justification and must be invalidated as 

applied to the Leadership Fund. 

IV. THE LEADERSHIP FUND DID NOT WAIVE ITS SECTION 441b(a) 

CHALLENGE. 

The district court wrongly concluded that the Leadership Fund had not 

properly stated a claim for relief from 2 U.S.C. § 441b(a). The relevant part of 

§ 441b(a) reads, “It is unlawful for any . . . corporation organized by authority of 

any law of Congress, to make a contribution or expenditure in connection with any 

election to political office . . . or for any . . . political committee . . . to accept or 

receive any contribution prohibited by this section.” The Leadership Fund wishes 

to receive contributions from corporate contributors and to solicit corporate 

contributors. Glengary LLC wishes to make contributions. This section prohibits 

that. 

The District Court acknowledged that the Leadership Fund objected to the 

application of § 441b(a) in this case, but concluded that “[b]ecause the plaintiffs 

only mention this provision in passing, the Court does not construe the plaintiffs’ 

Complaint to state a claim for relief against that provision, and the Court will not 

further address § 441b(a) in this opinion.” JA213 n.2. Particularly relevant for the 

Court was the absence of an explicit challenge to § 441b(a) in the prayer for relief. 

Id. 

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But the prayer for relief did contain a challenge to § 441b(a). The 

Complaint uses the term of art “Carey contributions” and defines it as 

“contributions not subject to the limits of 2 U.S.C. §§ 441a(a)(1)(C) and 441a(a)(3) 

or the source prohibitions of 2 U.S.C. § 441b(a) to finance independent 

expenditures.” JA5. In the prayer for relief, the plaintiffs then request injunctive 

relief as to prohibitions on “Carey contributions” three times. JA23-24. Indeed, 

the Leadership Fund’s challenge to § 441b(a) was much more than just “passing.” 

The opening paragraph of the Leadership Fund’s Complaint explicitly states that it 

challenges the application of § 441b(a). JA5. So though the Leadership Fund did 

not write out the phrase “§ 441b(a)” in its causes of action or prayer for relief, it 

referenced the provision by defining the term “Carey contributions” in the opening 

paragraph and using that term repeatedly in the prayer for relief. The challenge to 

§ 441b(a) was not waived. 

Moreover, there was no unfair surprise to the Commission or the court 

resulting from the inclusion of § 441b(a) in the definition of “Carey account” and 

incorporating it by reference. The Leadership Fund consistently and explicitly 

requested that the district court enjoin the source restrictions in § 441b(a) with 

respect to corporate contributions in other litigation documents. JA88, 96-97, 99, 

102, 121, 125 (challenging § 441b(a) in the Plaintiff’s Memorandum of Law in 

Support of Motion for Preliminary Injunction); JA170, 184 (reiterating its 

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challenge in the Plaintiff’s Reply Memorandum in Support of Motion for 

Preliminary Injunction); JA207 (reiterating its challenge in Plaintiff’s Opposition 

to Defendant’s Motion to Dismiss); see also JA93 (not challenging the source 

restrictions with respect to “national banks, federal contractors, or foreign 

nationals”). And in responding to the Leadership Fund’s requests, the Commission 

acknowledged that the specific validity of § 441b(a) was at stake. JA134, 136 

(discussing § 441b(a) as applied to the Leadership Fund and Stop This Insanity, 

Inc. in the Defendant’s Opposition to the Plaintiff’s Motion for Preliminary 

Injunction); JA209 (declaring that § 441b(a) would apply to contributions by 

corporations to a political committee). 

Section 441b(a)’s prohibition on corporate contributions is related to all of 

the other challenged prohibitions on contributions and solicitations to SSFs. It 

violates the First Amendment as applied here for the same reasons the other 

prohibitions violate the First Amendment. In light of the fact that the challenge to 

§ 441b(a) was not waived, the Court should declare it invalid as applied here just 

as it should with respect to the other sections impeding the Leadership Fund’s right 

to engage in non-contribution expenditures. 

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V. THE DISTRICT COURT IMPROPERLY DENIED THE 

LEADERSHIP FUND’S REQUEST FOR A PRELIMINARY 

INJUNCTION. 

“Because the FEC’s business is to censor, there inheres the danger that [it] 

may well be less responsive than a court . . . to the constitutionally protected 

interests in free expression.’” Citizens United, 130 S. Ct. at 896 (quoting 

Freedman v. Maryland, 380 U.S. 51, 57-58 (1965)). The Leadership Fund 

deserves court protection now because the right to engage in political speech is not 

a boon to be awarded or restricted at the grace of the Commission or Congress. 

Rather, it is a fundamental right of every person that may not be restricted under 

the First Amendment absent a narrowly-tailored restriction that furthers a 

compelling government interest. 

To warrant preliminary injunctive relief, the Leadership Fund must show 

(1) a substantial likelihood of success on the merits, (2) that it would suffer 

irreparable injury if the injunction were not granted, (3) that an injunction would 

not substantially injure other interested parties, and (4) that the public interest 

would be furthered by the injunction. Chaplaincy of Full Gospel Churches v. 

England, 454 F.3d 290, 297 (D.C. Cir. 2006). When there is a strong likelihood of 

success on the merits, a preliminary injunction is more appropriate. See Mills v. 

District of Columbia, 571 F.3d 1304, 1308 (D.C. Cir. 2009). And anytime a 

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plaintiff suffers a constitutional violation, irreparable harm is established. See 

Elrod v. Burns, 427 U.S. 347, 373 (1976); accord Mills, 571 F.3d at 1312. 

The Leadership Fund established a strong likelihood of success above. The 

government has no interest in prohibiting the Leadership Fund from opening and 

fully utilizing a non-contribution bank account. 

The prohibition against the account has caused, and will continue to cause 

irreparable harm. “The loss of First Amendment freedoms, for even minimal 

periods of time, unquestionably constitutes irreparable injury.” Elrod, 427 U.S. at 

373. Under the contribution limits of 2 U.S.C. §§ 441a(a)(1)(C) and 441b, the 

Leadership Fund may not solicit and accept unlimited contributions in order to 

conduct independent expenditures. These directly infringe and chill the Leadership 

Fund’s First Amendment rights. And the consequences of denying the injunction 

are certain and direct. There is no need to speculate about whether they will or will 

not occur; they have occurred. See Chaplaincy of Full Gospel Churches, 454 F.3d 

at 301 (stating that “[w]here a plaintiff alleges injury from a rule or regulation that 

directly limits speech, the irreparable nature of the harm may be presumed”). 

For similar reasons, the balance of equities weighs in favor of the Leadership 

Fund. The Supreme Court has made clear that in any conflict between First 

Amendment rights and regulation, courts “must give the benefit of any doubt to 

protecting rather stifling speech,” and that “the tie goes to the speaker, not the 

USCA Case #13-5008 Document #1432180 Filed: 04/23/2013 Page 67 of 76
- 56 - 

censor.” WRTL, 551 U.S. at 469, 474. Thus, although the injunction would “force 

the FEC to ignore congressionally mandated limits on the fundraising activities of 

SSFs,” JA252, under the Supreme Court’s approach to First Amendment rights in 

WRTL, the Commission’s interest simply cannot trump the First Amendment rights 

of the Leadership Fund. And an injunction will not harm the Commission. The 

Supreme Court “has long viewed the First Amendment as protecting a marketplace 

for the clash of differing views and conflicting ideas. That concept has been stated 

and restated almost since the Constitution was drafted.” Citizens Against Rent 

Control, 454 U.S. at 295. 

Finally, a preliminary injunction would serve the public interest. Removing 

the contribution and solicitation restraints on the Leadership Fund’s full-throated 

speech is in the public interest. “Speech is an essential mechanism of democracy, 

for it is the means to hold officials accountable to the people. The right of citizens 

to inquire, to hear, to speak, and to use information to reach consensus is a 

precondition to enlightened self-government and a necessary means to protect it.” 

Citizens United, 130 S. Ct. at 898 (quotation and marks omitted). Indeed, the First 

Amendment “has its fullest and most urgent application to speech uttered during a 

campaign for political office.” Id. Accordingly, the First Amendment reflects our 

“profound national commitment to the principle that debate on public issues should 

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- 57 - 

be uninhibited, robust, and wide-open.” N.Y. Times v. Sullivan, 376 U.S. 254, 270 

(1964). 

The Leadership Fund wishes to participate in the marketplace of ideas by 

attempting to convince citizens to support candidates who share its views and to 

oppose candidates who do not. “[T]here is practically universal agreement that a 

major purpose of [the First] Amendment was to protect the free discussion of 

governmental affairs . . . includ[ing] discussion of candidates.” Mills, 384 U.S. at 

218. Thus, “speech concerning public affairs is more than self-expression; it is the 

essence of self-government.” Garrison v. Louisiana, 379 U.S. 64, 74-75 (1964). 

“Discussion of public issues and debate on the qualifications of candidates are 

integral to the operation of the system of government established by our 

Constitution.” Buckley, 424 U.S. at 14. In short, Plaintiffs’ activities are at the 

core of the First Amendment and should be protected with a preliminary 

injunction. 

CONCLUSION 

For the foregoing reasons, the Leadership Fund and other appellants 

respectably request that this Court reverse the district court’s order dismissing this 

case and denying a preliminary injunction, and direct that the district court enter a 

preliminary injunction enjoining the contribution limits contained in 2 U.S.C. 

§ 441a(a)(1)(C), the source prohibitions at § 441b(a), the solicitation restrictions at 

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- 58 - 

§ 441b(b)(4)(A)(i) and all related regulatory requirements as they apply to the 

Appellants. 

 /s/ Tillman J. Breckenridge 

Tillman J. Breckenridge 

REED SMITH LLP 

1301 K Street, NW 

Suite 1100, East Tower 

Washington, D.C. 20005 

202-414-9200 

Patricia E. Roberts 

Jessica L. Delaney 

Bryan U. Gividen 

WILLIAM & MARY LAW 

SCHOOL APPELLATE AND 

SUPREME COURT CLINIC 

P.O. Box 8795 

Williamsburg, VA 23187 

757-221-3821 

Dan Backer 

DB CAPITOL STRATEGIES, PLLC 

209 Pennsylvania Ave. SE, Ste. 2109 

Washington, D.C. 20003 

202-210-5431 

USCA Case #13-5008 Document #1432180 Filed: 04/23/2013 Page 70 of 76
CERTIFICATE OF COMPLIANCE 

1. This brief complies with the type-volume limitation of Fed. R. App. P. 

28.1(e)(2) or 32(a)(7)(B) because: 

[ X ] this brief contains [12,616] words, excluding the parts of the brief 

exempted by Fed. R. App. P. 32(a)(7)(B)(iii), or 

[ ] this brief uses a monospaced typeface and contains [state the number 

of] lines of text, excluding the parts of the brief exempted by Fed. R. App. P. 

32(a)(7)(B)(iii). 

2. This brief complies with the typeface requirements of Fed. R. App. P. 

32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because: 

[ X ] this brief has been prepared in a proportionally spaced typeface using 

[Microsoft Word 2007] in [14pt Times New Roman]; or 

[ ] this brief has been prepared in a monospaced typeface using [state 

name and version of word processing program] with [state number of 

characters per inch and name of type style]. 

Dated: April 23, 2013 /s/ Tillman J. Breckenridge 

 Counsel for Appellants 

USCA Case #13-5008 Document #1432180 Filed: 04/23/2013 Page 71 of 76
CERTIFICATE OF FILING AND SERVICE 

 I hereby certify that on this 23rd day of April, 2013, I caused this Brief of 

Appellants and Joint Appendix to be filed electronically with the Clerk of the 

Court using the CM/ECF System, which will send notice of such filing to the 

following registered CM/ECF users: 

Erin R. Chlopak 

David B. Kolker 

Adav Noti 

FEDERAL ELECTION COMMISSION

999 E Street, NW 

Washington, DC 20463 

(202) 695-1650 

Counsel for Appellee 

 I further certify that on this 23rd day of April, 2013, I caused the required 

copies of the Brief of Appellants and Joint Appendix to be hand filed with the 

Clerk of the Court and a copy of the Joint Appendix to be served, via UPS Ground 

Transportation, to Counsel for Appellee at the above listed address. 

 /s/ Tillman J. Breckenridge 

 Counsel for Appellants 

USCA Case #13-5008 Document #1432180 Filed: 04/23/2013 Page 72 of 76
ADDENDUM 

USCA Case #13-5008 Document #1432180 Filed: 04/23/2013 Page 73 of 76
 - Add. i - 

ADDENDUM TABLE OF CONTENTS 

Page 

2 U.S.C. § 441a(a)(1) ........................................................................................ Add. 1 

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

2 U.S.C. § 441b(a) ............................................................................................ Add. 1 

2 U.S.C. § 441b(b)(4)(A) .................................................................................. Add. 1 

USCA Case #13-5008 Document #1432180 Filed: 04/23/2013 Page 74 of 76
 - Add. 1 - 

2 U.S.C. § 441a(a)(1): Except as provided in subsection (i) of this section and 

section 441a-1 of this title, no person shall make contributions... 

(C) to any other political committee (other than a committee described in 

subparagraph (D)) in any calendar year which, in the aggregate, exceed $5,000; 

2 U.S.C. § 441a(a)(3): During the period which begins on January 1 of an oddnumbered year and ends on December 31 of the next even-numbered year, no 

individual may make contributions aggregating more than-- 

(A) $37,500, in the case of contributions to candidates and the authorized 

committees of candidates; 

(B) $57,500, in the case of any other contributions, of which not more than 

$37,500 may be attributable to contributions to political committees which are not 

political committees of national political parties. 

2 U.S.C. § 441b(a): In general— 

It is unlawful for any national bank, or any corporation organized by authority of 

any law of Congress, to make a contribution or expenditure in connection with any 

election to any political office, or in connection with any primary election or 

political convention or caucus held to select candidates for any political office, or 

for any corporation whatever, or any labor organization, to make a contribution or 

expenditure in connection with any election at which presidential and vice 

presidential electors or a Senator or Representative in, or a Delegate or Resident 

Commissioner to, Congress are to be voted for, or in connection with any primary 

election or political convention or caucus held to select candidates for any of the 

foregoing offices, or for any candidate, political committee, or other person 

knowingly to accept or receive any contribution prohibited by this section, or any 

officer or any director of any corporation or any national bank or any officer of any 

labor organization to consent to any contribution or expenditure by the corporation, 

national bank, or labor organization, as the case may be, prohibited by this section. 

2 U.S.C. § 441b(b)(4)(A): Except as provided in subparagraphs (B), (C), and (D), 

it shall be unlawful— 

(i) for a corporation, or a separate segregated fund established by a 

corporation, to solicit contributions to such a fund from any person other than its 

stockholders and their families and its executive or administrative personnel and 

their families, and 

USCA Case #13-5008 Document #1432180 Filed: 04/23/2013 Page 75 of 76
 - Add. 2 - 

(ii) for a labor organization, or a separate segregated fund established by a 

labor organization, to solicit contributions to such a fund from any person other 

than its members and their families. 

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