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IN THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

______________________________________

)

FREE SPEECH, )

)

Plaintiff-Appellant, )

)

v. ) Case No. 12-8078

)

FEDERAL ELECTION COMMISSION, )

)

Defendant-Appellee. )

______________________________________ )

APPELLANT’S MOTION FOR 

EMERGENCY INJUNCTION ON APPEAL

Introduction

Pursuant to Federal Rule of Appellate Procedure (“FRAP”) 8(a)(2), Appellant

respectfully requests that this Court enjoin the enforcement of 11 C.F.R. 100.22(b) and 

related political committee practices and policies maintained by the Federal Election 

Commission (“FEC”). Because Free Speech wishes to speak about issues and candidates 

for public office before the November 6th election, immediate relief is requested. 

This request seeks to secure Appellant’s First Amendment rights denied by the 

FEC and court below. This case boils down to two fundamental questions of law. First, 

is it permissible for the FEC to maintain regulations and policies that it cannot articulate? 

Second, may a free people be denied the right of political expression due to 

administrative complexities enforced by criminal and civil penalties? Because the answer 

to each is resoundingly in the negative, Appellant asks for emergency injunctive relief.

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Statement of Facts and the Record Below

Free Speech is a group of three Wyoming men formed to speak publicly about 

issues and candidates for office. These gentlemen formed the group as an unincorporated 

association and registered as a political group under Section 527 of the Internal Revenue 

Code. While it wished to speak, Free Speech could not determine how to comply with 

federal election law in three ways. First, it could not determine if it would be required to 

register as a political committee (“PAC”) under the Federal Election Campaign Act 

(“FECA”). Second, it could not determine where the boundary lines between regulated 

and free speech existed. Third, if it was regulated, it could not determine which reporting 

regime would apply to its conduct. To clarify these issues, Free Speech filed an advisory 

opinion request with the FEC that the Commission could not answer.

Free Speech feared the FEC would apply onerous PAC regulations to it in a 

manner outside of its jurisdictional and constitutional authority. Throughout this process, 

the regulation, policies, and practices in controversy—as well as the Commission’s 

Explanations and Justifications, enforcement process, and advisory opinions—could not 

provide answers to basic questions of federal election law. This has left Free Speech 

muted due to the vagueness and overbreadth of these regulations, policies, and practices. 

When the FEC was asked to explain how the challenged regulatory programs

operated as applied to Free Speech and generally, the FEC deadlocked on key questions 

of law and compliance and could not offer advice. EXHIBIT 1 (First Am’d Ver. Compl.) 

Exh. A–F. The FEC offered only a “partial response” advisory opinion where six 

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commissioners agreed about limited questions, but not about the underlying legal 

reasoning. Id. at Exh. G. 

Following this inconclusive advisory opinion, Free Speech filed suit in June. 

Among the challenged provisions, Free Speech focuses its suit on 11 C.F.R. 100.22(b), 

which purports to regulate some speech as express advocacy if:

When taken as a whole and with limited reference to external events, 

such as the proximity to the election, could only be interpreted by a 

reasonable person as containing advocacy of the election or defeat of 

one or more clearly identified candidate(s) because—

(1) The electoral portion of the communication is unmistakable, 

unambiguous, and suggestive of only one meaning; and

(2) Reasonable minds could not differ as to whether it encourages 

actions to elect or defeat one or more clearly identified candidate(s) or 

encourages some other kind of action.

Free Speech also challenged the FEC’s policies and practices defining and regulating 

“solicitations,” and the determination of “political committee status” including the major 

purpose test. First Am’d Ver. Compl. at ¶¶ 47–49, 97–106. Free Speech also alleged that 

these programs operate as the functional equivalent of a prior restraint when taken in their 

entirety. Id. at ¶¶ 80–85. Lastly, Free Speech explained that, beyond its constitutional 

arguments, the challenged programs exceeded the statutory authority enjoyed by the FEC 

and were invalid under the Administrative Procedure Act (“APA”). Id. at ¶ 78.

At the district court, the FEC’s only response to its own confusion was to defend 

the positions of half the Commissioners by maintaining that the regulatory logjam created

no burden. After conducting a hearing on Free Speech’s request for preliminary 

injunctive relief, the court denied the motion. See EXHIBITS 4–5. In doing so, the court 

below committed several errors of law. These errors demand relief by this Court.

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Standards for Securing an Injunction on Appeal

The standards for granting an injunction pending appeal are the same as for 

granting a preliminary injunction. Hilton v. Braunskill, 481 U.S. 770, 776 (1987). This 

involves a determination of whether: (1) the applicant has made a strong showing that he 

is likely to succeed on the merits; (2) the applicant will be irreparably injured absent an 

injunction; (3) issuance of the injunction will substantially injure other parties; and (4) 

the injunction serves the public interest. Id. Under Local Rule 8.1, the Tenth Circuit also 

requires a showing of the basis for the district and appellate courts’ jurisdiction. Here, 

the district court had jurisdiction under 28 U.S.C. § 1331 as a challenge arising under the

First Amendment to the Constitution of the United States, FECA, and the Declaratory

Judgment Act, 28 U.S.C. § 2201–02. In addition, this Court enjoys jurisdiction under 

FRAP 8(a)(1) to review whether the grant of injunctive relief is appropriate on appeal. 

On October 19, Appellant filed its notice of appeal and request for injunctive relief 

on appeal with the district court. It is “well known that the public begins to concentrate 

on elections only in the weeks immediately before they are held. There are short 

timeframes in which speech can have influence.” Citizens United v. FEC, 130 S. Ct. 876, 

895 (2010). Free Speech’s last meaningful opportunity for relief is here and now. 

Argument

1. Free Speech is Likely to Succeed on the Merits

Whenever government regulates political speech—“an essential mechanism of 

democracy”—strict protection must follow. Citizens United, 130 S. Ct. at 898. Even 

when government dresses its programs up as mere disclosure, the duty of a reviewing 

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court is to look through form to function and determine whether the underlying burdens 

may be constitutionally upheld. Bantam Books v. Sullivan, 372 U.S. 58, 67 (1963). In 

this instance, the FEC maintains several programs injurious to First Amendment rights. 

The court below applied the wrong standards in assessing whether to grant 

injunctive relief. While in other cases it is true that movants bear the burden of 

establishing relief, special rules operate in First Amendment challenges. These were 

adequately pled in the court below. First Am’d Ver. Compl. at ¶¶ 70–106. When 

analyzing regulations affecting speech, the “Government bears the burden of proof on the 

ultimate question” and movants must be “deemed likely to prevail unless the Government 

has shown that the [movants’] proposed less restrictive alternatives are less effective than 

[the regulations in controversy].” Ashcroft v. Am. Civil Liberties Union, 542 U.S. 656, 

666 (2004). Burdens at the preliminary injunction stage track burdens at trial, where 

government must prove the constitutionality of the challenged provisions. Gonzales v. O 

Centro Espirita Ben. Uniao do Vegetal, 546 U.S. 418, 429 (2006). This burden shifting 

remains true whether strict or intermediate scrutiny is applied. See, e.g., Ashcroft, 542 

U.S. at 666; 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 505 (1996). Recent

Supreme Court cases concerning election law illustrate that where speech implicating 

political issues is under review, all doubts must be resolved in the favor of the speaker.

See, e.g., FEC v. Wisconsin Right to Life, Inc. (WRTL), 551 U.S. 449 (2007). This 

burden shifting is especially appropriate for regulatory schemes capable of sweeping and 

improper application. NAACP v. Button, 371 U.S. 415, 432–33 (1963).

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The district court also erred by applying traditional standards for injunctive relief 

that are inappropriate for the First Amendment. EXHIBIT 5 (Free Speech v. FEC

Telephonic Oral Ruling) at 15–16. Instead, it based its ruling on erroneous conclusions 

of the law thus committing an abuse of its discretion. See Awad v. Ziriax, 670 F.3d 1111 

(10th Cir. 2012). It did not presume that Free Speech was likely to prevail. It did not 

inquire whether the FEC could show that Free Speech’s less restrictive alternatives would 

not effectively carry out the FEC’s interest in disclosure. Instead, the court determined 

that Free Speech was subject to heightened burdens applied against usual movants for 

preliminary injunctive relief, which is wrong as a matter of law, necessitating review by 

this Court and the entry of injunctive relief.1 See, e.g., Thalheimer v. City of San Diego, 

645 F.3d 1109, 1117 (9th Cir. 2011). In each area challenged, this Court must ask 

whether Free Speech’s “proposed less restrictive alternatives are less effective” than the 

regulation, policy, or practice in controversy. Ashcroft, 542 U.S. at 666; cf. FEC v. 

Massachusetts Citizens for Life (MCFL), 479 U.S. 238, 262–63 (1986) (legal inquiry is 

whether any interest in disclosure could be met “in a manner less restrictive”). If the 

 

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The lower court also applied incorrect injunctive relief standards because it viewed the request 

as altering the status quo. See EXHIBIT 5 at 15–16. This approach contradicts the rule 

espoused in Gonzales, where the Supreme Court held that the government bears the burden of 

proof to support challenged provisions affecting First Amendment rights. 546 U.S. at 429. 

Additionally, only three Commissioners agreed with the legal position advocated by the FEC’s 

attorneys, and those Commissioners lack the legal authority to issue a binding, status quo, 

position of the FEC. A binding advisory opinion requires the votes of four Commissioners. See 

generally 2 U.S.C. §§ 437g(a)(2), (a)(4)(C), and (a)(6)(A). The First Amendment presumes that 

the freedom to speak, not free-floating regulatory licensing, constitutes the status quo. See 

Freedman v. Maryland, 380 U.S. 51, 59 (1965) (“Any restraint imposed in advance of a final 

judicial determination on the merits must similarly be limited to preservation of the status quo 

for the shortest fixed period compatible with sound judicial resolution”).

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answer is no, then relief must be afforded to Appellant. In each area of law, Appellant

has demonstrated less restrictive alternatives that adequately address the FEC’s interest in 

disclosure. Because of this, injunctive relief is appropriate.

a. The Lower Court did not Apply the Correct Standards to Determine

Express Advocacy or the Burdens of Political Committee Status

The FEC employs certain regulatory triggers to invoke significant burdens against 

speakers. These are not, as the FEC contends, simple disclosure programs upheld by the 

Supreme Court in Citizens United. They are rather much more burdensome and onerous 

regulations that impair First Amendment rights—a point of law already recognized by the 

Supreme Court and the Tenth Circuit. See MCFL, 479 U.S. at 252–53.

In Buckley v. Valeo, the Court construed the term “expenditure” to reach “only 

funds used for communications that expressly advocate the election or defeat of a clearly 

identified candidate.” 424 U.S. 1, 80 (1976). It also limited the application of the FECA 

to “only encompass organizations that are under the control of a candidate or the major 

purpose of which is the nomination or election of a candidate.” Id. at 79. These limits 

were necessary to preserve a sphere of protection for protected expression—speech about 

political issues and candidates for public office deemed “an essential mechanism of 

democracy, for it is the means to hold officials accountable to the people.” Citizens 

United, 130 S. Ct. at 898. The Buckley Court deemed these safeguards important because 

they offered a reliable means to distinguish between regulated and non-regulated speech, 

allowing ease of compliance in an area affecting core First Amendment interests. In 

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addition, Buckley’s construction has been relied upon as a statutory limit on the FEC’s 

authority. See EXHIBIT 2 (Mem. in Support of Preliminary Inj. Motion) at 43. 

The limiting principles of Buckley remain significant for several reasons. First, 

speakers potentially affected by the reach of any law need clear notice about their scope.

Buckley, 424 U.S. at 77–79. Second, insisting on clarity prevents against arbitrary and 

discriminatory enforcement by the FEC in an area of highly protected speech. See 

Button, 371 U.S. at 433. Third, some speakers cannot bear the regulatory PAC burdens 

applied by the FEC, necessitating a clear line of demarcation between regulated and 

unregulated conduct. See MCFL, 479 U.S. at 253–54. The sum of these protections act 

as a cure against any chill the system would cast against speakers facing complicated and 

confusing elements of federal election law. Half of the Commissioners agreed with 

Appellant’s position, but another half did not, leaving Free Speech in legal limbo subject 

to criminal and civil penalties for non-compliance.

The line distinguishing regulable from non-regulable speech remains 

constitutionally and statutorily mandated. The First Amendment requires some 

articulable boundary defining regulation. See, e.g., Bantam Books, 372 U.S. at 66; 

Interstate Circuit v. Dallas, 390 U.S. 676, 685 (1968); New York Times Co. v. Sullivan, 

376 U.S. 254, 277 (1964); Federal Communications Comm’n v. Fox Television Stations, 

Inc., 132 S. Ct. 2307 (2012). Even where regulatory constraints are minimal or 

government lacks any enforcement authority, these distinctions still prove necessary 

when First Amendment interests are implicated. Interstate Circuit, 390 U.S. at 688. This 

is particularly true when it comes to political speech. See, e.g., Right to Life of Duchess 

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Co., Inc. v. FEC, 6 F. Supp. 2d 248 (S.D.N.Y. 1998); Maine Right to Life Cmte. v. FEC, 

914 F. Supp. 8, 13 (D. Maine 1996), aff’d per curiam, 98 F.3d 1 (1st Cir. 1996), cert. 

denied, 522 U.S. 810 (1997).

The lower court confused the definition of express advocacy and PAC disclosure

burdens with a different category of political speech. In analyzing a different statute 

involving a different, well-defined form of speech, electioneering communications, the 

Supreme Court endorsed the functional equivalent of express advocacy test. In footnote 

seven of WRTL, the Chief Justice explained that any test for deciding regulable 

electioneering communications must “meet[] the brightline requirements of BCRA 203 in 

the first place.” WRTL, 551 U.S. at 474 n.7. These requirements were that electioneering 

communications only regulate speech that: (a) occurs within 30 or 60 days of an election, 

(b) is targeted to 50,000 people or more, (c) is carried by specific types of media, and (d) 

which mention a clearly identified candidate. See 2 U.S.C. § 434(f)(3)(A)(i). Faced with 

this narrow statutory enactment, the Supreme Court deemed the functional equivalent test

constitutionally appropriate as to electioneering communications.

Expenditures are not electioneering communications. The FECA recognizes this. 

2 U.S.C. § 434(f)(3)(B)(2)(i). Expenditures are much broader than electioneering 

communications, and the Buckley Court narrowed the former to prevent the capturing of

too much speech or indiscriminate application. 424 U.S. at 44. When faced with an 

open-ended statutory definition for expenditure, the Supreme Court required greater rigor 

in construing it—the real deal, the express advocacy construction. But when faced with a 

narrower statutory definition for electioneering communications, the Supreme Court 

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required less rigor in construing it and accepted a lesser test, the functional equivalent of 

express advocacy standard. Never should the two tests be confused as the same. When 

they are confused, speakers cannot determine the difference between an expenditure and 

an electioneering communication, making compliance with the law impossible. 

Appellant raised this issue at the administrative and district court levels as well. See First 

Am’d Ver. Compl. Exh. K at 5–10.

Undoubtedly, government has an interest in providing disclosure about “‘where 

political campaign money comes from and how it is spent’ . . . in order to aid voters in 

evaluating those who seek federal office.” Buckley 424 U.S. at 66–67. Thus, the 

disclosure interest at hand must relate to a specific category of speech—express 

advocacy—that in express terms calls for the election or defeat of clearly identified 

candidates. Id. at 44–45. It is not impossible to distinguish these classes of speech. 

Indeed, it is imperative to do so.

Providing disclosure of genuine express advocacy ensures the government interest 

in offering the electorate information about “where political campaign money comes 

from” is met but goes no further than that. This less restrictive method of ensuring

disclosure protects against shifting and indeterminate regulatory boundaries, cures 

attendant problems with the chilling effect against speakers, and prevents arbitrary and 

discriminatory enforcement by the FEC. At the same time, it offers relevant information 

to the electorate about a category of speech approved by the Supreme Court without 

trampling constitutional liberties. This form of disclosure is also what the Supreme Court 

had in mind in MCFL and Citizens United. 130 S. Ct. at 897–98. The FEC’s proposed 

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alternative—one embraced by half the FEC’s Commissioners—permits an evolving and 

fuzzy interpretation of Section 100.22(b). This approach provides disclosure for the 

electorate but in a much more burdensome and constitutionally inappropriate manner. 

A glimpse into the boundless operation of 100.22(b) can be found in the 

administrative record leading up to this case. Appellant provided ample administrative 

evidence of the FEC applying Section 100.22(b) in inconsistent and incomprehensible 

ways due to its underlying invalidity. See First Am’d Ver. Compl. at ¶¶ 76–77. In 

deciding whether to regulate speech under Section 100.22(b), the Commission never 

makes public what factors it will consider, what weights will be applied to these factors, 

or how the actual weights will be determined, and cannot do so because these 

considerations change from case to case. This administrative history belies any attempt 

to cast Appellant’s deadlocked advisory opinion request as a one-time incident. 

The FEC’s approach to determining express advocacy contrasts sharply with the 

D.C. District Court’s overview of the Christian Coalition matter. There, the district court 

applied the limiting construction of Buckley to make sense of the FEC’s express 

advocacy standard. FEC v. Christian Coalition, 52 F. Supp. 2d 45 (D. D.C. 1999). A 

strong message indicating that “[Victory] will be ours here” and “We’re going to see Pat 

Williams sent bags packing back to Montana in November of this year” were considered 

“prophecy rather than advocacy.” Id. at 63. Another communication consisted of a letter 

which referred to the “1994 elections for Congress” and “Christian voters . . . are going to 

make our voices heard in the elections this November . . . we must stand together, we 

must get organized, and we must stand now.” This communication included a scorecard

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for candidates as well. While the court understood that it would be “likely that the reader 

is to make his voice be heard by voting,” the proper judicial focus on the entire 

communication indicated that it could be reasonably read to indicate the “importance of 

raising the profile of issues important to ‘Christian voters.’” Id. at 63–64. Where 

reasonable interpretations of speech could be made, the D.C. District Court understood

that any doubt must be resolved in favor of a finding of non-regulation. 

On its face, Section 100.22(b) lacks the precision and simplicity necessary for 

regulations abutting political speech. Section 100.22(b) asks the Commission to conduct 

inquiries with “limited reference” to “external events,” like the “proximity to the 

election,” but other events could trigger regulation. Just no one knows what they may be. 

The regulation also asks the FEC to fish for an undefined “electoral portion” that might 

trigger regulatory requirements. The FEC’s own administrative history points to the 

conclusion that the meaning of 100.22(b) is found through perpetual evolution, making 

its meaning impossible to discern except in the midst of an enforcement action when it is 

too late. And the FEC’s record in interpreting this request illustrates that the boundaries 

to protect Section 100.22(b) from invalid application are nowhere to be found. See First 

Am’d Ver. Compl. at ¶¶ 15–17, 33–38.

What must be asked is whether the government’s interest in disclosure can be met 

through a narrow construction of express advocacy or whether the FEC’s expansive and 

evolving formulation is required to carry out disclosure. Nothing points to the conclusion 

that shifting and indeterminable speech standards are required to implement disclosure. 

The concerns highlighted in this request and briefed below illustrate that a narrow 

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interpretation of express advocacy safeguards constitutional interests while implementing 

the government’s interest in disclosure. For these reasons, injunctive relief must issue in 

favor of Free Speech.

Once triggers for regulated conduct are understood, the nature of the burden 

applied to them must also be examined. There exists a notable difference between simple 

disclosure, found in FEC form 5 requirements, and the full panoply of PAC requirements, 

found in FEC form 3 requirements. Cf. “Form 5” for persons, 

http://www.fec.gov/pdf/forms/fecfrm5.pdf with “FEC Form 3” for committees, 

http://www.fec.gov/pdf/forms/fecfrm3.pdf. While the FEC trumpets Citizens United for 

upholding disclosure, even the Citizens United Court agreed with Appellant’s distinction 

that disclosure is a “less restrictive alternative to more comprehensive regulations of 

speech.” 130 S. Ct. at 915, citing MCFL , 479 U. S. at 262. While simple disclosure was 

appropriate, imposing comprehensive PAC regulations constituted a disincentive to 

speak. It explained, “[f]aced with the need to assume a more sophisticated organizational 

form, to adopt specific accounting procedures, to file periodic detailed reports . . . it 

would not be surprising if at least some groups decided that the contemplated political 

activity was simply not worth it.” MCFL, 479 U.S. at 255. Justice O’Connor, joining the 

plurality, explained that “the significant burden on MCFL in this case comes not from the 

disclosure requirements that it must satisfy, but from the additional organizational 

restraints imposed upon it by the Act.” Id. at 266. Thus, MCFL shows that some 

regulatory requirements are so burdensome the Supreme Court took great steps to protect 

against them. These protections still matter.

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Free Speech specifically argued that less restrictive alternative modes of regulation 

would meet the government interest at hand. This is the legal inquiry commanded in First 

Amendment challenges. Ashcroft, 542 U.S. at 666. Buckley, MCFL, and Citizens United

already answer this question: the “state interest in disclosure therefore can be met in a 

manner less restrictive than imposing the full panoply of regulations that accompany 

status as a political committee under the Act.” MCFL, 479 U.S. at 262. Appellant

argued this point below to no avail. Mem. in Support of Prelim. Inj. at 31. What matches 

the interest in disclosure with perfect parity is simplified reporting requirements offering 

the electorate information about who is speaking and who is funding such speech. Any 

burdens piled on top of this interest go beyond the interest in disclosure for issue 

advocacy organizations as a matter of law and are consequently invalid.

Because the legal standard is whether Appellant’s proposed less restrictive 

alternative is effective at meeting the government interest in disclosure, the lower court 

erred when it failed to undertake this consideration. Because this issue has been settled 

as a matter of law, Free Speech, and others not before this Court, are entitled to injunctive 

relief before the upcoming election to protect their First Amendment interests.

b. The Lower Court Applied Non-Binding Fourth Circuit Precedent over 

Controlling Tenth Circuit Precedent 

The district court uniformly applied the recent ruling in Real Truth About Abortion 

v. FEC (RTAA) to Free Speech. See generally 681 F.3d 544 (4th Cir. 2012). See 

EXHIBIT 5 at 11, 17–18, 21–22. The court neglected to consider that RTAA contradicts 

the Tenth Circuit, specifically the application of the “major purpose” test and the burdens 

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of applying political committee status to issue advocacy organizations. This Court 

should direct a preliminary injunction on these issues due to this error below.

RTAA is a case fundamentally different from the one before this Court. By means 

of example, without a record demonstrating how broad and vague Section 100.22(b) 

actually is, the Fourth Circuit held that “100.22(b) is likely narrower than the one 

articulated in [WRTL], since it requires a communication to have an ‘electoral portion’ 

that is ‘unmistakable’ and ‘unambiguous.’” RTAA, 681 F.3d at 552. Lacking an 

administrative record, the Fourth Circuit was unable to discern the constitutional frailties 

present in the challenged system. In the 100.22(b) example, it did not have a record 

showing commissioners arguing over the “true meaning” of the phrase “talk about 

ranching.” See Mem. in Support of Prelim. Inj. at 25–26. It did not have a record 

illustrating that half the commissioners believed Section 100.22(b) had objective, narrow 

boundaries, similar to those found in Furgatch v. FEC, 807 F.2d 857 (9th Cir. 1987), and 

three that believed it remained an open book of evolving standards and progressive 

meaning. See Mem. in Support of Prelim. Inj. at 23–26. 

Unlike in RTAA, Appellant here included allegations about improper application 

of political committee status and the major purpose test to itself and third parties. See id. 

at 27–37. The Fourth Circuit specifically limited its ruling based on the fact that “Real 

Truth does not assert that the major purpose test is unconstitutional as applied to it. Nor 

could it, since the Commission has never claimed that Real Truth is a PAC. Real Truth 

also does not specifically identify any instances in which . . . the Commission incorrectly 

categorized an organization as a PAC.” RTAA, 681 F.3d at 558 n.5. In this case, Free 

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Speech cited many institutional and past examples of the FEC indiscriminately applying 

PAC status. See First Am’d Ver. Compl. at ¶¶ 28–30, 34, 58, 76–77, 100. 

While the Fourth Circuit declined RTAA’s record-light challenge to similar 

provisions of federal election law, a different case is before this Court. Because of the 

record provided here, this case illustrates how the challenged programs really work—this 

Court requires no hypothetical application of the programs in controversy as found in 

RTAA. It requires no deference to the FEC’s posture, since a deadlock among 

Commissioners occurred here. See Hispanic Leadership Fund, Inc. v. FEC, ___ 

F.Supp.2d ___ 2012 WL 4759238 (E.D. Va. 2012). This case illustrates the good faith 

efforts of Appellant to clarify the reach of the law through the advisory opinion process. 

Finally, this case shows how grassroots groups remained silenced by the FEC, with their 

only option of silence or onerous compliance if they wish to speak. 

Since it was first implemented as a limiting principle to assuage vagueness and 

overbreadth in the FECA in Buckley, the major purpose test has remained an integral step 

in determining political committee status. 424 U.S. at 79. Before considering the 

structure of the test itself, it is important to emphasize that the test is meant to protect 

associations that do not primarily engage in express advocacy. The Tenth Circuit has, on 

two separate occasions, found state campaign finance laws that forced issue advocacy 

groups to register and report as political committees unconstitutional as-applied. See 

Colorado Right to Life Cmte. v. Coffman (CRTL), 498 F.3d 1137 (10th Cir. 2007); New 

Mexico Youth Organized v. Herrera (NMYO), 611 F3d 669 (10th Cir. 2010). In both 

instances, this Court affirmed that there is a major purpose to “major purpose.” In CRTL, 

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this Court affirmed “the district court’s thorough and well-reasoned order . . . afford[ing] 

injunctive relief . . . .” 498 F.3d at 1156. In that order, the District of Colorado rejected 

the idea that “the government necessarily has a legitimate interest in regulating issue 

advocacy.” Colorado Right to Life Cmte. v. Davidson, 395 F. Supp. 2d 1001, 1020 (D. 

Colo. 2005). Later, in NMYO, this Court re-affirmed this reasoning and “the Supreme 

Court’s repeated admonition that only organizations that have ‘the major purpose’ of

electing or defeating a candidate may be forced to register as political organizations.” 

611 F.3d at 679 (emphasis added). This Court is now faced with a necessary corollary:

the trappings of PAC status are so burdensome that issue advocacy organizations must be 

able to avoid them with clear and narrowly tailored laws and policies. 

As the record reflects for Free Speech’s facial and as-applied challenge, the FEC 

has turned the major purpose test’s limiting principle into a trap. First Am’d Ver. Compl. 

Exh. C at 22–26. This Court has upheld the prongs of determining major purpose by 

examining an organization’s “central organizational purpose” or “comparison of the 

organization’s electioneering spending with overall spending to determine whether the 

preponderance of expenditures is for express advocacy or contributions to candidates.” 

NMYO, 611 F.3d at 678, citing CRTL, 498 F.3d at 1152. The latter prong is not at issue 

here, but the FEC claims it maintains the ability to determine an organization’s central 

organizational purpose on a case-by-case basis using any factor it pleases. See First Am’d

Ver. Compl. at ¶100. Aside from the record, which shows a multitude of hazy factors 

used by the FEC to determine central organizational purpose (many of which are beyond 

an organization’s control), Free Speech itself faced three commissioners who believe its 

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issue advocacy that criticizes candidates—speech that is not express advocacy—helps 

establish a major purpose of candidate advocacy and impose PAC burdens. First Am’d 

Ver. Compl. Exh. C at 24; see also Mem. in Support of Prelim. Inj. at 34. This Court has 

affirmed the purpose of the major purpose test as one to prevent regulation of issue 

advocacy organizations. In this case, it must affirm that it is not a vague and overbroad 

tool for kindly inquisitions that chill political speech as onerously as PAC status itself.

Aside from the purpose and structure of the “major purpose” test, this Court has 

also acknowledged the Supreme Court’s consistent rulings that themselves give the lie to 

RTAA. That ruling, and the court below, accepted the FEC’s argument that since there 

are no outright bans on political speech, disclosure requirements are not actually 

“onerous.” RTAA, 681 F.3d at 549. This argument directly contradicts this Court’s 

decision in Sampson v. Buescher, where this Court analyzed Colorado’s issue committee 

obligations on a small organization and considered the burdens:

The burdens are substantial. The average citizen cannot be expected to 

master . . . the many campaign financial-disclosure requirements set 

forth in [Colorado law.] . . . Even if those rules that apply to issue 

committees may be few, one would have to sift through them all to 

determine which apply. . . . One would expect . . . that an attorney’s fee 

would be comparable to, if not exceed, the [amount] that had been 

contributed . . . . 

625 F.3d 1247, 1259–60 (10th Cir. 2010). Free Speech’s situation is little different from 

the Sampson case, but instead it faces even tougher compliance requirements with 

political committee status than Colorado issue committees. Furthermore, in Sampson the 

burdens of issue committee status were challenged, but it seemed organizations could at 

least determine their status. Under the regulations at issue here, Free Speech cannot even 

Appellate Case: 12-8078 Document: 01018938457 Date Filed: 10/24/2012 Page: 18 
19

determine what type of organization it is. It cannot determine how to avoid the $1,000 

express advocacy threshold due to the vague and overbroad reach of § 100.22(b), which 

donation requests trigger regulated “solicitations” under the law, and even then cannot 

escape the major purpose crapshoot related to political committee status. Further, the 

FEC has made compliance impossible by comingling electioneering communications 

standards with expenditure standards. See First Am’d Ver. Compl. Exh. K at 5–10.

There is a reason for the major purpose test. It acts to protect against the 

imposition of burdensome PAC requirements where less burdensome alternatives could 

provide for the government’s interest in disclosure. MCFL, 479 U.S. at 262. The lower 

court abused its discretion by ignoring this controlling point of law—a point of law 

recognized by this Court. Without the major purpose test, government is free to apply the 

onerous requirements of PAC status to any group before it—a result that cannot be 

upheld under Buckley, MCFL, Citizens United, CRTL, or NMYO. The relevant inquiry 

here remains whether the “proposed less restrictive alternatives are less effective” than 

those proffered by the government. Appellant’s less restrictive alternative is not only as 

effective, it is constitutionally mandated to protect First Amendment rights. The FEC 

must not be permitted to softly censor a free people who are fearful of criminal and civil 

penalties for violating standards even the Commission itself cannot articulate. 

c. The Nature of Relief Requested

Appellant asked that the lower court embrace the “Draft C” Advisory Opinion

issued by half the FEC’s Commissioners to fully restore its First Amendment freedoms. 

This relief protects the status quo while preserving constitutional rights. The draft 

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20

opinion narrowed the reach of the challenged regulations and practices in accord with the 

statutory limits of the FECA and controlling constitutional precedent. This same relief is 

requested here. See First Am’d Ver. Compl. Exh. D.

2. Remaining Injunction Standards

Once the likelihood of success in established, in the First Amendment context the 

remaining elements of injunctive relief largely fall into place. The Appellant will suffer

irreparable injury if injunctive relief is not awarded, since “[t]he loss of First Amendment 

freedoms, for even minimal periods of time, unquestionably constitutes irreparable 

injury.” Elrod, 427 U.S. at 373–74. The FEC will not be substantially injured if relief is 

awarded: if anything, clear and objective regulations will aid the FEC in its enforcement 

process. See Mem. in Support of Prelim. Inj. at 47–48. Finally, protecting First 

Amendment rights is in the public interest. Pacific Frontier v. Pleasant Grove City, 414 

F.3d 1221, 1237 (10th Cir. 2005). 

Conclusion

For the foregoing reasons, this Court should grant Appellant’s motion for 

emergency injunctive relief.

Respectfully submitted,

/s/ Stephen Klein

Stephen R. Klein

Wyoming Liberty Group

1902 Thomes Ave, Ste. 201

Cheyenne, WY 82001

307.632.7020 [Tel.]

stephen.klein@wyliberty.org

Benjamin T. Barr*

10737 Hunting Lane

Rockville, MD 20850

202.595.4671 [Tel.]

benjamin.barr@gmail.com

Jack Speight 

4021 Snyder Ave

Cheyenne, WY 82001

307.635.1239 [Tel.]

jbspeight@gmail.com

*Tenth Circuit Bar admission pending

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CERTIFICATE OF SERVICE

I hereby certify that on October 24, 2012 a copy of the foregoing motion for 

emergency injunction pending appeal was served through electronic mail pursuant to Fed. 

R. App. P. Rule 25(c)(1)(D) on the following:

Anthony Herman

Federal Election Commission

aherman@fec.gov

Erin Chlopak

Federal Election Commission

echlopak@fec.gov

David Kolker

Federal Election Commission

dkolker@fec.gov

Lisa Stevenson

Federal Election Commission

lstevenson@fec.gov

Nicholas Vassallo

United States Attorney’s Office

nick.vassallo@usdoj.gov

Larry Jones

Counsel for Amici Curiae

ljones@skelaw.com

/s/ Stephen Klein

Appellate Case: 12-8078 Document: 01018938457 Date Filed: 10/24/2012 Page: 21 
CERTIFICATE OF REDACTIONS AND DIGITAL SUBMISSIONS

I hereby certify that pursuant to the Tenth Circuit’s General Order 95-01 dated 

August 10, 2007, all required privacy redactions have been made and, with the exception 

of those redactions, every document submitted in Digital Form or scanned PDF format is 

an exact copy of the written document filed with the Clerk. Further, the digital 

submissions have been scanned for viruses with the most recent version of a commercial 

virus scanning program (Trend Micro Titanium 2012, updated on October 24, 2012, 

which is the latest version of this software). According to the program, the digital 

submission is free from viruses.

/s/ Stephen Klein

Appellate Case: 12-8078 Document: 01018938457 Date Filed: 10/24/2012 Page: 22 
LOCAL RULE 8.2 AND 27.3(C) CERTIFICATES

This motion for emergency relief arises from the underlying order issued by the 

district court on October 3, 2012. Appellant’s Notice of Appeal and Request for 

Injunctive Relief Pending Appeal was filed with the district court on October 19, 2012. 

Due to the complexity of the issues presented, availability of counsel due to pressing 

election law matters for other clients, and necessary time to competently draft the 

underlying requests for emergency relief, this emergency request was prepared as 

promptly as possible. Moreover, FEC’s counsel were notified of Appellant’s plan to file 

its request for injunctive relief at the district court and at the Tenth Circuit on October, 

19, 2012. This timing ensures that the correct constitutional and legal arguments are 

made before this Court to protect Free Speech’s First Amendment rights before their last 

meaningful chance to speak – the November 6, 2012 elections – passes.

Lastly, in accord with Rule 27.3(C), Appellee FEC opposes this motion.

Contact for all counsel of record:

Appellant: Appellee:

Benjamin Barr

202.595.4671

benjamin.barr@gmail.com

Erin Chlopak

202.694.1572

echlopak@fec.gov

Stephen Klein

734.233.1705

stephen.klein@wyliberty.org

David Kolker

202.694.1629

dkolker@fec.gov

Jack Speight

307.635.1239

jbspeight@gmail.com

Lisa Stevenson

202.694.1650

lstevenson@fec.gov

Appellate Case: 12-8078 Document: 01018938457 Date Filed: 10/24/2012 Page: 23 
Appellee con’t:

Anthony Herman

202.694.1650

aherman@fec.gov

Nicholas Vassallo

307.772.2978

nick.vassallo@usdoj.gov

Larry Jones

307.527.7891

ljones@skelaw.com

/s/ Stephen Klein

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