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      FEC Record: Litigation
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      The Real Truth About Obama, Inc. v. FEC and U.S. Department of Justice (District court)

FEC Record: Litigation*The Real Truth About Obama, Inc. v. FEC and U.S. Department of Justice* (District court)July 1, 2011 On June 16, 2011, the U.S. District Court for the Eastern District ofVirginia granted summary judgmentin favor of the Commission and deniedThe Real Truth About Obama’s(RTAO’s) motions for preliminaryinjunction and summary judgmentin this case. RTAO challenges theconstitutionality of the Commissionregulation defining “express advocacy”at 11 CFR 100.22(b) and theCommission’s approach to determiningwhen an organization becomes a“political committee” under the FederalElection Campaign Act (Act). Background On July 30, 2008, RTAO sued the Commission and the U.S.Department of Justice, challengingthe constitutionality of severalFEC regulations, including 11 CFR100.22(b), as well as the FEC’s approachto determining whether an organization qualifies as a “politicalcommittee” under the Act (“politicalcommittee status”). See 2 U.S.C.§431(4). Along with raising facialchallenges to the regulations andpolitical committee status methodology,RTAO challenged the applicationof the regulations and themethodology to two RTAO radioads mentioning then-Senator BarackObama. During the 2008 presidentialcampaign, RTAO plannedto disburse over $1,000 to air thetwo ads, which might have broughtRTAO within the statutory definitionof “political committee.” RTAO argued that the Commission’sregulation at 11 CFR100.22(b), which provides a definitionof “expressly advocacating,”was overbroad and vague. RTAOalso argued that the Commission’sapproach to determining politicalcommittee status on a case-by-casebasis was overbroad and vague. In
    Buckley v. Valeo, 424 U.S. 1, 79(1976), the Supreme Court limitedthe application of the Act’s politicalcommittee provisions to organizations“under the control of a candidate”or “the major purpose ofwhich is the nomination or electionof a candidate.” The Commission’scurrent approach to determiningpolitical committee status considersseveral factors, such as the organization’slevel of spending on federalcampaigns, public statements andfundraising appeals when determiningwhether an organization’s “majorpurpose” is the election or defeat offederal candidates. The District Court denied RTAO’s motions for preliminary injunctions and issued an opinion on September 24, 2008, and the Fourth Circuit Court of Appeals affirmed that decision. RTAO filed a petition for a writ of certiorariwith
    the Supreme Court in December 2009. In January 2010, the Supreme Court held unconstitutional the Act’s restrictions on corporate financing of independent expenditures and electioneering communications in Citizens United v. FEC,
    130 S. Ct. 876 (2010). On April 26, 2010, the Supreme Court vacated the Fourth Circuit’s judgment in this case and remanded the case for further consideration in light of the decision in Citizens Unitedand the Solicitor General’s suggestionof mootness. Upon remand, RTAO moved for a preliminary injunction and forsummary judgment in its challengesto 11 CFR 100.22(b) and the Commission’sapproach to determiningpolitical committee status. TheCommission and the Department ofJustice opposed RTAO’s motionsand moved for summary judgment. District court decision Express advocacy. The court held that the Commission’s regulationat 11 CFR 100.22(b) defining express advocacy is consistent with the Supreme Court’s opinion in FEC v. Wisconsin Right to Life, Inc., 551 U.S. 449 (2007). In that opinion, the Supreme Court had upheld the constitutionality of the Act’s financing restrictions on electioneeringcommunications as applied to communications that are the ”functional equivalent of express advocacy,” which the Court defined as communications that are subject to “no reasonable interpretation” other than as an appeal to vote for or against a candidate. The district court determined that the regulation at 11 CFR 100.22(b), which requires that “reasonable minds [cannot] differ” about an advertisement’s message, was similar to the standard fromWisconsin Right to Life. The district court further determined that theinterpretation of 100.22(b) was notaltered by the decision inCitizensUnited, and that had the Commissiondeemed both RTAO ads to beexpress advocacy under 100.22(b),that application would not have beenunconstitutional. Political committee status. The court denied RTAO’s challenge tothe Commission’s approach to determining political committee status.The court stated that the Commissionundertakes a “fact-intensive,case-by-case adjudication to determinewhether a group’s majorpurpose” is the election or defeatof federal candidates, includingexamining whether the group spendsmoney extensively on campaignactivities such as canvassing orphone banks. The court noted thatthe Commission also examines theorganization’s public statements,fundraising appeals and personalmeetings. The court agreed with the Commission that determining an organization’s “major purpose” is an “inherently comparative task and requires consideration of the full range of an organization’s activities.” Furthermore, the court held that RTAO had not shown that the Commission’s approach had harmed RTAO’s ability to speak, nor had Citizens United altered the constitutionality of the Commission’s approachto political committee status.The district court accordinglygranted summary judgment in favorof the Commission and the Departmentof Justice and rejected RTAO’schallenges to both 11 CFR 100.22(b)and the Commission’s approach todetermining political committeestatus. U.S. District Court for the Eastern District of Virginia: 3:08-cv-00483-JRS.
 Author
          Myles MartinIcon of email being sentPublic Affairs Specialist


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This information is not intended to replace the law or to change its meaning, nor does this information create or confer any rights for or on any person or bind the Federal Election Commission or the public. The reader is encouraged also to consult the Federal Election Campaign Act of 1971, as amended (52 U.S.C. 30101 et seq.), Commission regulations (Title 11 of the Code of Federal Regulations), Commission advisory opinions and applicable court decisions.


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