IN THE UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF VIRGINIA

RICHMOND DIVISION

THE REAL TRUTH ABOUT OBAMA, INC. )

)

Plaintiff, )

)

v. ) Civil Action No. 3:08-cv-00483-JRS

)

FEDERAL ELECTION COMMISSION, )

U.S. DEPARTMENT OF JUSTICE, )

)

Defendants. )

UNITED STATES DEPARTMENT OF JUSTICE’S ANSWER TO PLAINTIFF’S

VERIFIED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Defendant United States Department of Justice (hereinafter, the “Department”) hereby

submits this answer to The Real Truth About Obama, Inc.’s (RTAO’s) Verified Complaint for

Declaratory and Injunctive Relief (hereinafter, “Complaint”). The Department denies all

allegations in Plaintiff’s Complaint not expressly admitted or qualified herein. 

1. The first sentence of this paragraph contains Plaintiff’s characterization of the

Complaint, which speaks for itself, but the Department DENIES that the three

challenged regulations or enforcement policy “restrict RTAO’s constitutionallyprotected ‘issue advocacy.’” The second and third sentences recite language from a

judicial decision, which speaks for itself. The Department is without knowledge or

information sufficient to admit or deny the allegations in the fourth, fifth, and sixth

sentences. 

2. This paragraph characterizes the legal claims and relief requested in the Complaint. 

This characterization requires no response. 

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3. DENY that the Court has jurisdiction over the claims made in this Complaint. DENY

that the Federal Election Commission’s (hereinafter, “Commission”) enforcement

policy is reviewable under the Administrative Procedure Act, as the policy is not final

agency action.

4. ADMIT that venue is proper in this Court.

5. ADMIT that RTAO is a nonprofit Virginia corporation. The Department is without

knowledge or information sufficient to admit or deny the remaining allegations in this

paragraph.

6. ADMIT that the Commission is the federal government agency with civil

enforcement authority over the Federal Election Campaign Act (FECA) and that it is

located in Washington, DC. ADMIT that the Commission promulgated the

regulations and explained the enforcement policy at issue in this case, but because of

this paragraph’s vague use of the term “adopted,” the Department is unable to admit

or deny that part of the paragraph.

7. ADMIT that the Department of Justice is an executive department of the United

States, with the Attorney General as its head, and that it is headquartered in

Washington, D.C. ADMIT that the Department of Justice has control over all

criminal prosecutions in which the United States has an interest, including criminal

enforcement authority over the federal laws at issue in this case, and, regarding civil

suits, that, "[e]xcept as otherwise authorized by law, the conduct of litigation in

which the United States, an agency, or officer thereof is a party, or is interested, . . . is

reserved to officers of the Department of Justice, under the direction of the Attorney

General.” 28 U.S.C. § 516.

8. ADMIT.

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9. ADMIT that RTAO has registered with the Internal Revenue Service to be considered

as an organization subject to 26 U.S.C. § 527. To the extent this paragraph contains

conclusions of law, no response is necessary. The Department is without knowledge

or information sufficient to admit or deny the remaining allegations in the paragraph.

10. The Department is without knowledge or information sufficient to admit or deny the

allegations in this paragraph. To the extent the paragraph contains conclusions of

law, no response is necessary.

11. The Department is without knowledge or information sufficient to admit or deny the

allegations in this paragraph. To the extent the paragraph contains conclusions of

law, no response is necessary. 

12. This paragraph recites Plaintiff’s Articles of Incorporation, which speak for

themselves. The Department is without knowledge or information sufficient to admit

or deny the other allegations in this paragraph.

13. The Department is without knowledge or information sufficient to admit or deny the

allegations in this paragraph. To the extent the paragraph contains conclusions of

law, no response is necessary.

14. The Department is without knowledge or information sufficient to admit or deny the

allegations in this paragraph. To the extent this paragraph characterizes Plaintiff’s

Articles of Incorporation or contains conclusions of law, no response is necessary.

15. The Department is without knowledge or information sufficient to admit or deny the

allegations in this paragraph. 

16. The Department is without knowledge or information sufficient to admit or deny the

allegations in this paragraph. 

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17. The Department is without knowledge or information sufficient to admit or deny the

allegations in this paragraph. To the extent the paragraph contains conclusions of

law, no response is necessary.

18. The Department is without knowledge or information sufficient to admit or deny the

allegations in this paragraph. 

19. The Department is without knowledge or information sufficient to admit or deny the

allegations in this paragraph.

20. The Department is without knowledge or information sufficient to admit or deny the

allegations in this paragraph.

21. DENY that RTAO is chilled from proceeding with its activities, and DENY that

RTAO “reasonably” believes that it will be subject to an FEC and DOJ investigation

and possible enforcement action as a result of the described “Change” ad. The

Department is without knowledge or information sufficient to admit or deny the

remaining allegations in this paragraph. To the extent the paragraph contains

conclusions of law, no response is necessary.

22. DENY that RTAO is chilled from proceeding with its activities. The Department is

without knowledge or information sufficient to admit or deny the remaining

allegations in this paragraph. To the extent the paragraph contains conclusions of

law, no response is necessary.

23. DENY that RTAO is chilled from proceeding with its activities. The remaining

allegations characterize communications between the Department and Democracy 21,

which speak for themselves. 

24. DENY that RTAO’s alleged fears are reasonable. The Department is without

knowledge or information sufficient to admit or deny the remaining allegations in this

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paragraph. To the extent the paragraph contains conclusions of law, no response is

necessary.

25. DENY that RTAO’s alleged fears are reasonable and that the Commission’s

regulations are vague or overbroad. The Department is without knowledge or

information sufficient to admit or deny the remaining allegations in this paragraph. 

To the extent the paragraph contains conclusions of law, no response is necessary.

26. DENY.

27. The Department incorporates by reference all responses contained in the preceding

paragraphs.

28. This paragraph recites 11 C.F.R. § 100.22(b), which speaks for itself.

29. DENY that 11 C.F.R. § 100.22(b) is unconstitutionally vague or overbroad. The

remaining allegations describe judicial decisions, which speak for themselves.

30. This paragraph describes a judicial decision and contains conclusions of law, to

which no response is necessary. 

31. This paragraph describes judicial decisions and contains conclusions of law, to which

no response is necessary. The paragraph also contains Plaintiff’s characterization of

an FEC statement, which speaks for itself. 

32. DENY that 11 C.F.R. § 100.22(b) is beyond the Commission’s statutory authority. 

This paragraph describes judicial decisions and contains conclusions of law, to which

no response is necessary.

33. DENY.

34. The Department incorporates by reference all responses contained in the preceding

paragraphs.

35. This paragraph recites 11 C.F.R. § 100.57(a), which speaks for itself.

Case 3:08-cv-00483-JRS Document 79 Filed 09/29/2008 Page 5 of 10
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36. DENY that 11 C.F.R. § 100.57 is unconstitutionally vague or overbroad. This

paragraph describes judicial decisions and contains conclusions of law, to which no

response is necessary.

37. This paragraph contains Plaintiff’s characterization of a judicial decision, which

speaks for itself.

38. DENY that 11 C.F.R. § 100.57 exceeds the Commission’s statutory authority. The

remainder of this paragraph contains conclusions of law, to which no response is

necessary.

39. DENY.

40. The Department incorporates by reference all responses contained in the preceding

paragraphs.

41. This paragraph contains Plaintiff’s characterizations of Commission regulations and

policies, which speak for themselves. DENY that “any flaws” in the Commission’s

regulations are “fatal to the FEC’s PAC status enforcement policy.”

42. This paragraph contains Plaintiff’s characterizations of Commission statements as to

the enforcement of FECA, which speak for themselves. DENY that the FEC’s

enforcement policy as to political committee status is vague or overbroad.

43. This paragraph contains Plaintiff’s characterizations of judicial decisions and

Commission statements as to the enforcement of FECA, which all speak for

themselves. DENY that there is “no authority” for the Commission’s enforcement

policy as to political committee status and the “major purpose” test.

44. This paragraph contains Plaintiff’s characterizations of Commission statements as to

the enforcement of FECA, which speak for themselves. 

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45. This paragraph contains Plaintiff’s characterizations of Commission statements as to

the enforcement of FECA, which speak for themselves. DENY that the

Commission’s enforcement policy is unconstitutional or otherwise impermissible.

46. This paragraph describes judicial decisions and contains conclusions of law, to which

no response is necessary. DENY that the Commission’s enforcement policy is

unconstitutional or otherwise impermissible.

47. DENY.

48. The Department incorporates by reference all responses contained in the preceding

paragraphs.

49. This paragraph recites 11 C.F.R. § 114.15, which speaks for itself.

50. This paragraph contains Plaintiff’s characterizations of judicial decisions and

Commission regulations, which speak for themselves. DENY that 11 C.F.R. 

§ 114.15(c) is unconstitutionally vague or overbroad.

51. This paragraph contains Plaintiff’s characterizations of judicial decisions, which

speak for themselves.

52. This paragraph contains Plaintiff’s characterizations of a judicial decision and

Commission regulations, which speak for themselves. DENY that 11 C.F.R. § 114.15

is unconstitutional or beyond the Commission’s statutory authority.

53. DENY. 

PRAYER FOR RELIEF

The remainder of the Complaint contains Plaintiff’s Request for Relief to which no

response is required; to the extent a response is deemed necessary, deny that Plaintiff is entitled

to the relief requested in the Request for Relief, or to any relief whatsoever.

Case 3:08-cv-00483-JRS Document 79 Filed 09/29/2008 Page 7 of 10
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AFFIRMATIVE DEFENSES

1. The Court lacks jurisdiction over this matter.

2. Plaintiff’s claims are not justiciable.

3. Plaintiff fails to state a claim for which relief can be granted.

Respectfully submitted,

GREGORY G. KATSAS

Assistant Attorney General

CHUCK ROSENBERG

United States Attorney

JAMES J. GILLIGAN

Assistant Director, Civil Division, 

Federal Programs Branch

By: /s/ 

Debra J. Prillaman

VSB No. 15844

Assistant United States Attorney

600 E. Main Street, Suite 1800

Richmond, Virginia, 23219-2430

(804) 819-5400

Fax (804) 819-7417

Debra.prillaman@usdoj.gov

 /s/ 

John R. Griffiths

Admitted pro hac vice

Senior Trial Counsel

U.S. Department of Justice

Civil Division, Federal Programs Branch

P.O. Box 883

Washington, D.C. 20044

Telephone: (202) 514-4652

Fax: (202) 616-8460

John.Griffiths@usdoj.gov

Attorneys for Defendant United States

Department of Justice

Case 3:08-cv-00483-JRS Document 79 Filed 09/29/2008 Page 8 of 10
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CERTIFICATE OF SERVICE

I hereby certify that on the 29th day of September, 2008 I have electronically filed the

foregoing pleading with the Clerk of Court using the CM/ECF system, which will then send a

notification of such filing (NEF) to the following:

Michael Boos 

michael.boos@gte.net 

James Bopp , Jr

jboppjr@aol.com 

Barry Alan Bostrom 

bbostrom@bopplaw.com 

Clayton James Callen 

ccallen@bopplaw.com 

Vivien Clair 

vclair@fec.gov 

Richard Eugene Coleson 

rcoleson@bopplaw.com 

Kevin Andrew Deeley 

kdeeley@fec.gov 

Thomasenia Patricia Duncan 

tduncan@fec.gov 

John Richard Griffiths 

john.griffiths@usdoj.gov 

Audra Anne Hale-Maddox 

ahale-maddox@fec.gov 

J. Gerald Hebert 

ghebert@campaignlegalcenter.org 

David Brett Kolker 

dkolker@fec.gov 

Seth Edward Nesin 

snesin@fec.gov 

Adav Noti 

anoti@fec.gov 

Claire Naila Rajan 

crajan@fec.gov 

Harry Jacobs Summers 

hsummers@fec.gov

Case 3:08-cv-00483-JRS Document 79 Filed 09/29/2008 Page 9 of 10
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I also certify that on the 29th day of September, 2008 I have mailed a copy of the

foregoing pleading by U.S. Mail to the following non-ECF users:

Holly J. Baker 

Federal Election Commission

999 E. Street, NW

Washington, DC 20463

Richard Briffault

Joseph P. Chamberlain Professor of Legislation

Columbia University School of Law

435 West 116th Street

New York, NY 10027

Daniel R. Ortiz

John Allan Love Professor of Law

University of Virginia School of Law

580 Massie Road

Charlottesville, VA 22903-1738

 /s/ 

Debra J. Prillaman

VSB No. 15844

Assistant United States Attorney and Counsel

for Defendant U.S. Department of Justice

600 E. Main Street, Suite 1800

Richmond, Virginia, 23219-2430

(804) 819-5400

Fax (804) 819-7417

Debra.prillaman@usdoj.gov

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