No. 12-311 

In the Supreme Court of the United States

THE REAL TRUTH ABOUT ABORTION, INC., FKA 

THE REAL TRUTH ABOUT OBAMA, INC., PETITIONER

v.

FEDERAL ELECTION COMMISSION, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI 

TO THE UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

BRIEF FOR THE RESPONDENTS IN OPPOSITION 

ANTHONY HERMAN

General Counsel 

LISA J. STEVENSON

Deputy General Counsel 

DAVID KOLKER

Associate General Counsel 

ADAV NOTI

Acting Assistant General 

Counsel 

Federal Election Commission

Washington, D.C. 20463 

DONALD B. VERRILLI, JR. Solicitor General 

Counsel of Record 

Department of Justice 

Washington, D.C. 20530-0001 

SupremeCtBriefs@usdoj.gov 

(202) 514-2217 

 
(I) 

QUESTION PRESENTED 

Whether the court of appeals correctly rejected petitioner’s constitutional challenges to (1) a Federal Election Commission (FEC) regulation that defines the term 

“expressly advocating,” 11 C.F.R. 100.22(b), and (2) the 

FEC’s approach to determining political-committee status, as described in Federal Register notices. 
(III) 

TABLE OF CONTENTS

Page

Opinions below ................................................................................ 1 

Jurisdiction ...................................................................................... 1 

Statement ......................................................................................... 1 

Argument ....................................................................................... 10 

Conclusion ...................................................................................... 23 

TABLE OF AUTHORITIES 

Cases: 

ACLU v. Heller, 378 F.3d 979 (9th Cir. 2004) ..................... 17 

Anderson v. Spear, 356 F.3d 651 (6th Cir.), cert. 

denied, 543 U.S. 956 (2004) .................................................. 17

Bennett v. Spear, 520 U.S. 154 (1997) ................................... 18

Buckley v. Valeo, 424 U.S. 1 (1976) ............... 2, 3, 4, 11, 12, 19 

Center for Individual Freedom v. Carmouche, 

449 F.3d 655 (5th Cir. 2006), cert. denied, 

549 U.S. 1112 (2007) ............................................................. 17

Center for Individual Freedom v. Madigan, 

No. 11-3693, 2012 WL 3930437 (7th Cir. 

Sept. 10, 2012) ....................................................................... 17

Citizens United v. FEC, 130 S. Ct. 876 (2010) ............ passim 

Colorado Right to Life Comm., Inc. v. Coffman, 

498 F.3d 1137 (10th Cir. 2007) ............................................ 21

Cutter v. Wilkinson, 544 U.S. 709 (2005) ............................. 14

Doe v. Reed, 130 S. Ct. 2811 (2010) ......................................... 8

EMILY’s List v. FEC, 581 F.3d 1 (D.C. Cir. 2009) ............... 6 

FEC v. Christian Action Network, Inc., 110 F.3d 

1049 (4th Cir. 1997) ............................................................... 12

FEC v. Furgatch, 807 F.2d 857 (9th Cir.), cert. 

denied, 484 U.S. 850 (1987) .................................................. 16

FEC v. GOPAC, Inc., 917 F. Supp. 851 (D.D.C. 1996) ....... 20
IV 

Cases—Continued: Page

FEC v. Malenick, 310 F. Supp. 2d 230 (D.D.C. 2004), 

amended on reconsideration, No. Civ. A. 02-1237, 

2005 WL 588222 (D.D.C. Mar. 7, 2005) ............................. 20

FEC v. Massachusetts Citizens for Life, Inc., 

479 U.S. 238 (1986) ............................................................... 21

FEC v. Wisconsin Right to Life, Inc., 

551 U.S. 449 (2007) ................................... 8, 12, 13, 14, 15, 16

Human Life of Wash. Inc. v. Brumsickle, 624 F.3d 

990 (9th Cir. 2010), cert. denied, 131 S. Ct. 1477 

(2011) ................................................................................ 17, 23

McConnell v. FEC, 540 U.S. 93 (2003) ................. 8, 11, 12, 16 

Minnesota Citizens Concerned for Life, Inc. 

v. Swanson, 692 F.3d 864 (8th Cir. 2012) .......................... 22

National Org. for Marriage v. McKee, 649 F.3d 34 

(1st Cir. 2011), cert. denied, 132 S. Ct. 1635 (2012) .... 17, 23

National Org. for Marriage Inc. v. 

Cruz-Bustillo, No. 11-14193, 2012 WL 

1758607 (11th Cir. May 17, 2012) .................................. 18, 23

National Org. for Marriage, Inc. v. Roberts, 

753 F. Supp. 2d 1217 (N.D. Fla. 2010), aff’d 

sub nom. National Org. for Marriage Inc. v. 

Cruz-Bustillo, No. 11-14193, 2012 WL 1758607 

(11th Cir. May 17, 2012) ....................................................... 18

North Carolina Right to Life, Inc. v. Leake, 525 F.3d 

274 (4th Cir. 2008) ................................................................. 17

Pennsylvania Dep’t of Corr. v. Yeskey, 524 U.S. 206 

(1998) ...................................................................................... 22

SEC v. Chenery Corp., 332 U.S. 194 (1947) ...................... 9, 19 

Shays v. FEC, 511 F. Supp. 2d 19 (D.D.C. 2007) .......... 19, 20

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

cert. denied, 131 S. Ct. 553 (2010) .................................. 4, 10 

United States v. Williams, 553 U.S. 285 (2008) .................. 16 
V 

Cases—Continued: Page

United States v. Wurzbach, 280 U.S. 396 (1930) ................. 16 

Wisniewski v. United States, 353 U.S. 901 (1957) ........ 17, 22 

Statutes and regulations: 

Bipartisan Campaign Reform Act of 2002, 

Pub. L. No. 107-155, 116 Stat. 81 .......................................... 8 

Federal Election Campaign Act of 1971, 

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

2 U.S.C. 431(4)(A) ................................................................ 3 

2 U.S.C. 431(8)(A)(i) ............................................................ 3 

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

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

2 U.S.C. 433 .......................................................................... 4 

2 U.S.C. 434(a)-(b) ............................................................... 4 

2 U.S.C. 434(c)(1) ................................................................. 3 

2 U.S.C. 434(c)(2)(A) ........................................................... 3 

2 U.S.C. 434(c)(2)(C) ........................................................... 3 

2 U.S.C. 434(f)(3)(A)(ii) ..................................................... 15 

2 U.S.C. 437c(b)(1) .............................................................. 2 

2 U.S.C. 437d(a)(7) .............................................................. 2 

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

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

2 U.S.C. 437g ........................................................................ 2 

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

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

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

2 U.S.C. 441a(a)(1)(C) ......................................................... 4 

2 U.S.C. 441a(a)(3) .............................................................. 4 

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

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

2 U.S.C. 441d(d)(2) .............................................................. 3 
VI 

Statutes and regulation—Continued: Page

Federal Election Campaign Act Amendments of 

1976, Pub. L. No. 94-283, § 102(g)(3), 90 Stat. 479 

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

5 U.S.C. 704 .............................................................................. 18 

26 U.S.C. 527(a) ......................................................................... 5 

26 U.S.C. 527(e)(1) ..................................................................... 5 

11 C.F.R.: 

Section 100.5(a) ..................................................................... 3 

Section 100.22 ........................................................... 3, 14, 16 

Section 100.22(a) ................................................................... 3 

Section 100.22(b) ....................................................... passim 

Section 100.22(b)(1) ............................................................ 13 

Section 109.10(e) ................................................................... 3 

Miscellaneous: 

Express Advocacy; Independent Expenditures; 

Corporate and Labor Organization Expenditures, 

60 Fed. Reg. 35,292-35,295 (1995) ................................ 13, 17

FEC Statement on the Supreme Court’s Decision in

Citizens United v. FEC (Feb. 5, 2010), http://www. 

fec.gov/press/press2010/20100205 

CitizensUnited.shtml ............................................................. 7 

Funds Received in Response to Solicitations; 

Allocation of Expenses by Separate Segregated 

Funds and Nonconnected Committees, 

75 Fed. Reg. 13,223 (2010) ..................................................... 6 

Proposed Rules: Political Committee Status, 

69 Fed. Reg. (2004): 

p. 11,736 ................................................................................. 4 

pp. 11,748-11,749 ................................................................... 5 
VII 

Miscellaneous—Continued: Page

Rules and Regulations: Political Committee Status, 

72 Fed. Reg. (2007): 

p. 5595 .................................................................................... 5 

p. 5596 .................................................................................. 19 

pp. 5596-5597 ......................................................................... 5 

p. 5601-5602 ......................................................................... 20 

p. 5604 .................................................................................. 18 

p. 5605 .................................................................................. 20 

pp. 5605-5606 ......................................................................... 5 

 
(1) 

In the Supreme Court of the United States

No. 12-311 

THE REAL TRUTH ABOUT ABORTION, INC., FKA 

THE REAL TRUTH ABOUT OBAMA, INC., PETITIONER

v.

FEDERAL ELECTION COMMISSION, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI 

TO THE UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

BRIEF FOR THE RESPONDENTS IN OPPOSITION 

OPINIONS BELOW 

The opinion of the court of appeals (Pet. App. 1a-30a) 

is reported at 681 F.3d 544. The opinion of the district 

court (Pet. App. 31a-62a) is reported at 796 F. Supp. 2d 

736. 

JURISDICTION 

The judgment of the court of appeals was entered on 

June 12, 2012. The petition for a writ of certiorari was 

filed on September 10, 2012. The jurisdiction of this 

Court is invoked under 28 U.S.C. 1254(1). 

STATEMENT 

1. a. The Federal Election Commission (FEC or 

Commission) is vested with statutory authority over the 

administration, interpretation, and civil enforcement of 

the Federal Election Campaign Act of 1971 (FECA), 2 
2 

U.S.C. 431 et seq., and other federal campaign-finance 

statutes. The Commission is empowered to “formulate 

policy” with respect to FECA, 2 U.S.C. 437c(b)(1); “to 

make, amend, and repeal such rules * * * as are necessary to carry out the provisions of [FECA],” 2 U.S.C. 

437d(a)(8), 438(a)(8); see 2 U.S.C. 438(d); to issue written advisory opinions concerning the application of 

FECA and Commission regulations to any specific proposed transaction or activity, 2 U.S.C. 437d(a)(7), 437f; 

and to civilly enforce FECA, 2 U.S.C. 437g. The Department of Justice prosecutes criminal violations of 

FECA. See 2 U.S.C. 437g(d). 

b. FECA defines the term “expenditure” to include 

any payment of money made “for the purpose of influencing any election for Federal office.” 2 U.S.C. 

431(9)(A)(i). In Buckley v. Valeo, 424 U.S. 1 (1976) (per 

curiam), this Court reviewed a provision in the original 

version of FECA that prohibited expenditures of more 

than $1000 “relative to” a federal candidate. Id. at 39-

44. To avoid vagueness concerns, the Court construed 

that prohibition “to apply only to expenditures for communications that in express terms advocate the election 

or defeat of a clearly identified candidate for federal office.” Id. at 44. 

Shortly thereafter, Congress codified that holding in 

its definition of a new statutory term, “independent expenditure.” Federal Election Campaign Act Amendments of 1976, Pub. L. No. 94-283, § 102(g)(3), 90 Stat. 

479 (2 U.S.C. 431(17)). FECA defines an “independent 

expenditure” as a communication “expressly advocating 

the election or defeat of a clearly identified candidate” 

that is made without coordinating with the candidate or 

a political party. 2 U.S.C. 431(17). When an entity 

“makes a disbursement for the purpose of financing 
3 

communications expressly advocating the election or defeat of a clearly identified candidate,” it must identify 

itself within the communication. 2 U.S.C. 441d(a) and 

(d)(2). And any entity that spends more than $250 to finance independent expenditures must file with the 

Commission a disclosure report that includes, inter alia, 

the date and amount of each expenditure and anyone 

who contributed more than $200 to further it. See 2 

U.S.C. 434(c)(1), (2)(A) and (C); 11 C.F.R. 109.10(e). 

The Commission has promulgated a regulatory definition of the statutory term “[e]xpressly advocating.” 11 

C.F.R. 100.22. Subsection (a) of the definition encompasses communications that use phrases or campaign 

slogans such as “‘re-elect your Congressman’ ” or “  ‘support the Democratic nominee,’ * * * which in context 

can have no other reasonable meaning than to urge the 

election or defeat” of a candidate. 11 C.F.R. 100.22(a). 

Phrases of this sort, to which the Buckley Court referred in describing its limiting construction of the original version of FECA, see 424 U.S. 44 n.52, are sometimes referred to as “magic words” of electoral advocacy, see, e.g., Pet. App. 13a. Subsection (b) of the definition reaches communications that have an “electoral 

portion” that is “unmistakable [and] unambiguous” and 

“could only be interpreted by a reasonable person as 

containing advocacy of the election or defeat of one or 

more clearly identified candidate(s).” 11 C.F.R. 

100.22(b). 

c. Under FECA, any “committee, club, association, 

or other group of persons” that receives more than 

$1000 in contributions or makes more than $1000 in expenditures in a calendar year is a “political committee.” 

2 U.S.C. 431(4)(A); see 11 C.F.R. 100.5(a); see also 2 

U.S.C. 431(8)(A)(i) (defining “contribution” to include 
4 

any payment of money made “for the purpose of influencing any election for Federal office”). A political 

committee must register with the Commission and file 

periodic reports for disclosure to the public of all receipts and disbursements, with exceptions for most 

transactions of less than $200. 2 U.S.C. 433, 434(a)-(b). 

FECA also places certain constraints on contributions to 

political committees. 2 U.S.C. 441a(a)(1)(C) and (a)(3), 

441b(a). The D.C. Circuit has held, however, that those 

contribution restrictions cannot constitutionally be applied to a political committee that makes only independent expenditures. SpeechNow.org v. FEC, 599 F.3d 686, 

696 (en banc), cert. denied, 131 S. Ct. 553 (2010). 

In Buckley, this Court explained that if politicalcommittee status were defined “only in terms of amount 

of annual ‘contributions’ and ‘expenditures,’ ” FECA’s 

political-committee provisions might be applied overbroadly to reach “groups engaged purely in issue discussion.” 424 U.S. at 79. The Court therefore concluded 

that the Act’s political-committee provisions “need 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.” Ibid. Under that limiting construction, an entity that is not controlled by a 

candidate need not register as a political committee unless its “major purpose” is the nomination or election of 

federal candidates. 

In March 2004, the Commission issued a notice of 

proposed rulemaking. That notice sought comment on 

whether the FEC should, inter alia, promulgate a regulatory definition of “political committee” that would encompass all “527” groups—i.e., political organizations 

holding tax-exempt status under Section 527 of the Internal Revenue Code. Proposed Rules: Political Com-
5 

mittee Status, 69 Fed. Reg. 11,736, 11,748-11,749 (Mar. 

11, 2004); see 26 U.S.C. 527(a) and (e)(1). In February 

2007, after receiving comments and hearing testimony, 

the Commission published in the Federal Register an 

Explanation and Justification explaining its decision not 

to promulgate such a regulation. Rules and Regulations: Political Committee Status, 72 Fed. Reg. 5595 

(Feb. 7, 2007). The notice stated that the Commission 

would instead continue its longstanding practice of determining an organization’s major purpose through 

case-by-case adjudication. See id. at 5596-5597. The notice then discussed a number of prior administrative and 

civil matters in which the Commission or a court had analyzed a group’s major purpose. The notice explained 

that those descriptions cumulatively “provid[ed] considerable guidance to all organizations” regarding the criteria that are used to apply the major-purpose test, with 

further guidance available through the advisory-opinion 

process. See id. at 5595, 5605-5606.

2. Petitioner The Real Truth About Abortion, Inc. is 

a nonprofit Virginia corporation, organized under Section 527 of the Internal Revenue Code. Pet. App. 3a. 

Petitioner’s articles of incorporation prohibit it from 

making any contributions directly to candidates but 

permit it to make “independent communications.” Id. at 

47a n.4. Petitioner incorporated under the name The 

Real Truth About Obama, Inc. on July 24, 2008, and 

filed its complaint in this case a few days later. Id. at 

3a-4a. 

Petitioner’s complaint asserted facial and as-applied 

constitutional challenges to three FEC regulations, including the definition of “expressly advocating” in 11 

C.F.R. 100.22(b), as well as the Commission’s approach 

to determining political-committee status. Pet. App. 4a. 
6 

Petitioner alleged that it had developed two radio advertisements, entitled Change and Survivor, about thencandidate Obama’s positions on abortion. Id. at 4a-5a. 

Change purported to provide “the real truth about Democrat Barack Obama’s position on abortion,” using an 

“Obama-like voice.” Ibid. Near the end of the advertisement, a woman’s voice asked: “Now you know the 

real truth about Obama’s position on abortion. Is this 

the change you can believe in?” Id. at 5a. Survivor 

stated that then-Senator Obama “has been lying” about 

his voting history regarding abortion, thereby demonstrating “callousness” and “a lack of character and compassion that should give everyone pause.” Id. at 5a-6a. 

Petitioner alleged that it intended to broadcast those 

advertisements during the 60-day period preceding the 

2008 presidential election. Id. at 6a. 

The district court denied petitioner’s motion for a 

preliminary injunction, and the court of appeals affirmed. Pet. App. 6a; see 575 F.3d 342 (2009). Petitioner then sought review in this Court. Pet. App. 6a. While 

that petition for certiorari was pending, the D.C. Circuit, in EMILY’s List v. FEC, 581 F.3d 1 (2009), found 

unconstitutional one of the regulations petitioner was 

challenging, and this Court, in Citizens United v. FEC, 

130 S. Ct. 876 (2010), found unconstitutional the portion 

of FECA on which another of the challenged regulations 

depended. The FEC accordingly announced that it 

would no longer enforce those regulations. See Rules 

and Regulations: Funds Received in Response to Solicitations; Allocation of Expenses by Separate Segregated 

Funds and Nonconnected Committees, 75 Fed. Reg. 

13,223 (Mar. 19, 2010); FEC Statement on the Supreme 

Court’s Decision in Citizens United v. FEC (Feb. 
7 

5, 2010), http://www.fec.gov/press/press2010/20100205 

CitizensUnited.shtml. 

The government informed this Court of those developments and urged the Court to (1) grant the petition 

with respect to the affected claims, vacate the court of 

appeals’ judgment, and remand with instructions to 

dismiss those claims as moot; and (2) deny the petition 

with respect to the remaining claims. Br. in Opp. 25 

(No. 09-724). The Court ultimately granted the petition, 

vacated the court of appeals’ judgment, and remanded 

for further consideration in light of Citizens United and 

the government’s suggestion of mootness. 130 S. Ct. 

2371 (2010). 

3. On remand, petitioner withdrew its challenges to 

the regulations that the Commission no longer intended 

to enforce. Pet. App. 38a n.3. The district court then 

granted summary judgment for the government on petitioner’s remaining claims, which challenged 11 C.F.R. 

100.22(b)’s definition of “expressly advocating” and the 

Commission’s approach to determining politicalcommittee status. Pet. App. 45a-62a. 

The court of appeals affirmed. Pet. App. 1a-30a. The 

court determined as an initial matter that petitioner’s 

constitutional challenges should be reviewed “under the 

intermediate scrutiny level of ‘exacting scrutiny,’” rather than under strict scrutiny. Id. at 10a; see id. at 8a11a. The court explained that strict scrutiny was inapplicable because the administrative practices petitioner 

challenged would impose “disclosure and organizational 

requirements” on petitioner but would not restrict petitioner’s campaign activities or contributions and expenditures. Id. at 9a; see id. at 11a (explaining that “even 

after Citizens United, it remains the law that provisions 

imposing disclosure obligations are reviewed under the 
8 

intermediate scrutiny level of ‘exacting scrutiny’”) (citing, inter alia, Doe v. Reed, 130 S. Ct. 2811, 2818 (2010)). 

That intermediate level of scrutiny requires only “a substantial relation between the disclosure requirement and 

a sufficiently important governmental interest.” Id. at 

11a (quoting Citizens United, 130 S. Ct. at 914). 

The court of appeals rejected petitioner’s overbreadth and vagueness challenges to Section 100.22(b). 

Pet. App. 11a-22a. The court substantially relied on 

three of this Court’s decisions: McConnell v. FEC, 540 

U.S. 93 (2003), overruled in part by Citizens United, 130 

S. Ct. 876; FEC v. Wisconsin Right to Life, Inc., 551 

U.S. 449 (2007); and Citizens United. Pet. App. 11a-22a. 

First, the court of appeals observed that the Court in 

McConnell—in the course of upholding restrictions on 

“electioneering communications” enacted as part of the 

Bipartisan Campaign Reform Act of 2002 (BCRA), Pub. 

L. No. 107-155, 116 Stat. 81—had held that “Congress 

could permissibly regulate not only communications containing the ‘magic words’ of Buckley, but also communications that were ‘the functional equivalent’ of express 

advocacy.” Pet. App. 13a-14a (quoting McConnell, 540 

U.S. at 193, 206). Second, the court of appeals explained 

that the “language of § 100.22(b) is consistent with the 

test for the ‘functional equivalent of express advocacy’ 

that was adopted in Wisconsin Right to Life, a test that 

the controlling opinion specifically stated was not ‘impermissibly vague.’  ” Id. at 16a (quoting Wisconsin 

Right to Life, 551 U.S. at 474 n.7 (opinion of Roberts, 

C.J.)). Third, the court of appeals observed that the 

Court in Citizens United had applied the functionalequivalency test from Wisconsin Right to Life and had 

“also upheld BCRA’s disclosure requirements for all 

electioneering communications—including those that 
9 

are not the functional equivalent of express advocacy.” 

Id. at 15a (citing Citizens United, 130 S. Ct. at 914-916). 

The Court reasoned that the constitutionality of the disclosure requirements at issue here followed a fortiori. 

Id. at 16a. 

The court of appeals also rejected petitioner’s challenge to the FEC’s approach for determining politicalcommittee status. Pet. App. 22a-30a. The court agreed 

with petitioner that the Commission’s approach constituted “final agency action” subject to judicial review under the Administrative Procedure Act. Id. at 23a n.4. 

The court concluded, however, that the FEC’s approach 

was consistent with this Court’s precedents. The court 

observed that the Court in Buckley “did not mandate a 

particular methodology for determining an organization’s major purpose.” Id. at 25a. The court reasoned 

that “the Commission was free to administer FECA political committee regulations either through categorical 

rules or through individualized adjudications,” ibid. (citing SEC v. Chenery Corp., 332 U.S. 194, 203 (1947)), and 

that the FEC “had good and legal reasons” for choosing 

case-by-case adjudication, id. at 26a. The court recognized that the major-purpose inquiry “is inherently a 

comparative task, and in most instances it will require 

weighing the importance of some of a group’s activities 

against others.” Ibid. 

Petitioner contended that, in applying the “major 

purpose” test, the FEC could permissibly consider only 

two factors: (1) whether “campaign-related speech 

amounts to 50% of all [the organization’s] expenditures,” 

and (2) “the organization’s central purpose revealed by 

its organic documents.” Pet. App. 22a-23a. The court of 

appeals rejected that argument, concluding that the 

precedents on which petitioner relied did not limit the 
10 

Commission’s discretion in that manner. Id. at 27a-28a. 

The court of appeals saw “little risk that the Commission’s existing major purpose test will chill political expression.” Id. at 28a. The court explained that the 

Commission would typically apply the test only to political groups that had disbursed more than $1000 in either 

expenditures or contributions; that investigation of a 

group’s major purpose “would not necessarily be * * * 

intrusive” due to the heavy reliance on publicly available 

materials; and that classification as a political committee 

would impose only “‘minimal’ reporting and organizational obligations.” Id. at 29a (citing SpeechNow.org, 

599 F.3d at 697-698). 

ARGUMENT 

The court of appeals’ decision reflects a straightforward application of this Court’s precedents, and it is 

consistent with every other post-Citizens United circuitcourt decision that has addressed similar issues. Further review is not warranted. 

1. Contrary to petitioner’s contention (Pet. 15), strict 

scrutiny does not apply in this case. As the court of appeals correctly observed, the definitions of “expressly 

advocating” and “political committee,” even if applicable 

to petitioner or its activities, would ultimately affect only the disclaimer and disclosure requirements (if any) to 

which petitioner is subject. Pet. App. 9a; see pp. 2-4, 

supra. Petitioner asserts (Pet. 9) in passing that designation as a political committee would also trigger certain 

limitations on how it can collect and spend money. But 

because petitioner does not make campaign contributions or otherwise coordinate its advocacy with political 

campaigns or parties, see Pet. App. 47a n.4, the FEC 

could not enforce those limitations with respect to petitioner. See SpeechNow.org v. FEC, 599 F.3d 686, 696 
11 

(D.C. Cir.) (en banc) (holding restrictions unconstitutional as applied to a political committee that made only 

independent expenditures), cert. denied, 131 S. Ct. 553 

(2010). 

Although “[d]isclaimer and disclosure requirements 

may burden the ability to speak,” they “impose no ceiling on campaign-related activities and do not prevent 

anyone from speaking.” Citizens United v. FEC, 130 

S. Ct. 876, 914 (2010) (internal quotation marks and citations omitted). Indeed, disclosure requirements can improve political discourse by creating “transparency” that 

“enables the electorate to make informed decisions and 

give proper weight to different speakers and messages.” 

Id. at 916. The Court accordingly has subjected such 

requirements only to “‘exacting scrutiny,’” rather than 

strict scrutiny, upholding them so long as the government can show “a ‘substantial relation’ between the disclosure requirement and a ‘sufficiently important’ governmental interest.” Id. at 914 (quoting Buckley v. 

Valeo, 424 U.S. 1, 64, 66 (1976) (per curiam)); see ibid.

(citing McConnell v. FEC, 540 U.S. 93, 231-232 (2003), 

overruled in part by Citizens United, 130 S. Ct. 876). 

2. Petitioner contends (Pet. 16-24) that the definition 

of “expressly advocating” in 11 C.F.R. 100.22(b) is unlawful because it goes beyond a mere magic-words test 

and is unconstitutionally vague. The court of appeals 

correctly rejected that argument. 

a. In Buckley, this Court construed an expenditure 

limitation in the original version of FECA “to apply only 

to expenditures for communications that in express 

terms advocate the election or defeat of a clearly identified candidate.” 424 U.S. at 44. The Court explained in 

a footnote that this construction would restrict application of the provision “to communications containing ex-
12 

press words of advocacy of election or defeat, such as 

‘vote for,’ ‘elect,’ ‘support,’ ‘cast your ballot for,’ ‘Smith 

for Congress,’ ‘vote against,’ ‘defeat,’ ‘reject.’” Id. at 44 

n.52. Citing that limiting construction, some lower 

courts in the wake of Buckley held that Congress’s constitutional authority to regulate campaign expenditures 

was limited to communications containing such “magic 

words.” See, e.g., FEC v. Christian Action Network, 

Inc., 110 F.3d 1049, 1052-1055 (4th Cir. 1997). 

In McConnell, this Court rejected that interpretation 

of Buckley. 540 U.S. at 190-193. The Court considered 

the constitutionality of BCRA’s definition of the term 

“electioneering communication,” which was not limited 

to magic words and which was relevant to the imposition 

of both disclosure requirements and expenditure limitations. Id. at 189-190. The Court explained that Buckley’s “express advocacy limitation * * * was the product of statutory interpretation rather than a constitutional command,” and “in no way drew a constitutional 

boundary that forever fixed the permissible scope of 

provisions regulating campaign-related speech.” Id. at 

191-193. The Court in McConnell accordingly upheld 

the restrictions on the financing of electioneering communications to the extent that the communications were 

“the functional equivalent of express advocacy.” Id. at 

206. 

The lead opinion in FEC v. Wisconsin Right to Life, 

Inc., 551 U.S. 469 (2007), reiterated McConnell’s holding 

that Congress may regulate the funding of certain communications that are “the functional equivalent of express advocacy.” Id. at 474 n.7 (opinion of Roberts, 

C.J.). It additionally defined the “functional equivalent 

of express advocacy” as communications “susceptible of 

no reasonable interpretation other than as an appeal to 
13 

vote for or against a specific candidate.” Id. at 469-470. 

It expressly rejected the contention that this test was 

“impermissibly vague.” Id. at 474 n.7. 

b. The test from Wisconsin Right to Life is nearly 

identical to 11 C.F.R. 100.22(b). Each inquires whether 

a particular communication can reasonably be interpreted as something other than candidate advocacy and, if 

so, excludes the communication from its scope. Pet. 

App. 16a-17a. Both tests also avoid vagueness by refusing to consider the subjective intent of the speaker. 

Compare Rules and Regulations: Express Advocacy; 

Independent Expenditures; Corporate and Labor Organization Expenditures, 60 Fed. Reg. 35,292, 35,295 

(July 16, 1995) (1995 Rules and Regulations) (explaining 

that “the subjective intent of the speaker is not a relevant consideration”), with Wisconsin Right to Life, 551 

U.S. at 472 (opinion of Roberts, C.J.) (holding that evidence related to speaker’s “subjective intent” is “irrelevant”). To the extent the standards differ, Section 

100.22(b) is narrower than the Wisconsin Right to Life

test, as the regulation requires an “unambiguous” electoral portion, 11 C.F.R. 100.22(b)(1), while the lead opinion in Wisconsin Right to Life refers to the “mention” of 

an election and similar “indicia of express advocacy,” 

Wisconsin Right to Life, 551 U.S. at 470 (opinion of 

Roberts, C.J.). 

The Court’s decision in Citizens United does not 

change the analysis. Although the Court held in Citizens United that corporations cannot be prohibited from 

financing express advocacy or its functional equivalent, 

130 S. Ct. at 913, it did not redefine the types of 

election-related communications that may be subject to 

other forms of regulation. To the contrary, the Court 

confirmed that even communications that are not “the 
14 

functional equivalent of express advocacy” under the 

Wisconsin Right to Life test—and are not unambiguously campaign-related—can constitutionally be subject to 

other forms of regulation, such as disclosure requirements. Id. at 915. 

c. As the foregoing discussion demonstrates, petitioner is wrong in contending (Pet. 18-19) that the court 

of appeals’ decision conflicts with the decisions of this 

Court. Six members of the Court in Wisconsin Right to 

Life rejected the proposition, raised in Justice Scalia’s 

separate opinion, that the only permissible constitutional standard is a magic-words test. 551 U.S. at 474 n.7 

(opinion of Roberts, C.J.); id. at 513-520 (Souter, J., dissenting). To the extent petitioner attaches controlling 

significance to the precise terminology of Section 

100.22—i.e., that it defines the statutory term “expressly advocating,” rather than “electioneering communication” or “functional equivalent of express advocacy”—

petitioner’s focus is misplaced. As the court of appeals 

recognized, what matters in the First Amendment analysis is that the communications this Court has defined 

as “the functional equivalent of express advocacy” are 

constitutionally indistinguishable from the communications the Commission has defined as “expressly advocating.” 

Petitioner alternatively contends (Pet. 21) that Section 100.22(b) exceeds the Commission’s statutory authority. The lower courts, however, apparently understood the thrust of petitioner’s arguments to be constitutional and did not address any statutory arguments. 

Pet. App. 11a-22a, 45a-56a; see Cutter v. Wilkinson, 544 

U.S. 709, 718 n.7 (2005) (“[W]e are a court of review, not 

of first view.”). In any event, Congress has expressly 

approved of Section 100.22(b). The BCRA provision that 
15 

amended FECA to reach electioneering communications 

expressly preserved Section 100.22(b). See 2 U.S.C. 

434(f)(3)(A)(ii) (“Nothing in this subparagraph shall be 

construed to affect the interpretation or application of 

section 100.22(b) of title 11, Code of Federal Regulations.”). Petitioner’s argument that Congress has not 

authorized Section 100.22(b) cannot be reconciled with 

the statutory text demonstrating Congress’s intent that 

the regulation be enforced as written. 

Petitioner further contends that the lead opinion in 

Wisconsin Right to Life “specifically acknowledged” 

that its standard for identifying the functional equivalent of express advocacy (which Section 100.22(b) essentially replicates) “is impermissibly vague” as applied to 

any speech that does not also meet BCRA’s definition of 

“electioneering communication.” Pet 19 (citing Wisconsin Right to Life, 551 U.S. at 474 n.7 (opinion of Roberts, C.J.)). But the lead opinion did not hold that its 

own test would be impermissibly vague if not tethered to 

BCRA’s criteria for electioneering communications. To 

the contrary, the footnote on which petitioner relies was 

dedicated entirely to rebutting the argument that the 

only sufficiently clear standard would be a magic-words 

test. And this Court confirmed the viability of the Wisconsin Right to Life test by applying it in Citizens United. 130 S. Ct. at 889-890. 

 Petitioner also argues (Pet. 19-24) that disagreement 

between the Commission and the district court as to 

whether petitioner’s Change advertisement met the Section 100.22(b) standard, as well as disagreement among 

the FEC’s six Commissioners regarding other communications, illustrates the regulation’s unconstitutional 

vagueness. The “basic mistake” of that argument—

which would necessarily imply that the Wisconsin Right 
16 

to Life standard was also impermissibly vague—“lies in 

the belief that the mere fact that close cases can be envisioned renders a [law] vague.” United States v. Williams, 553 U.S. 285, 305 (2008). “That is not so.” Id. at 

305-306; see United States v. Wurzbach, 280 U.S. 396, 

399 (1930) (“Whenever the law draws a line there will be 

cases very near each other on opposite sides.”). A 

vagueness argument based on the potential for disagreement is particularly misplaced with respect to Section 100.22(b), which by its terms expressly resolves 

cases of potential disagreement in favor of non-regulation. See Pet. App. 22a (noting that Section 100.22 

“applies only when reasonable people could not disagree

about a communication’s status”); see also Wisconsin 

Right to Life, 551 U.S. 474 n.7 (“[W]e agree with JUSTICE SCALIA on the imperative for clarity in this area; 

that is why our test affords protection unless an ad is 

susceptible of no reasonable interpretation other than 

as an appeal to vote for or against a specific candidate.”). 

d. Contrary to petitioner’s contention (Pet. 16-17 & 

n.6), the court of appeals’ conclusion that Section 

100.22(b) is constitutional does not conflict with any decision of another court of appeals. Most of the decisions 

cited by petitioner pre-date McConnell. As Justice 

Thomas noted in dissent, McConnell “overturned” the 

court of appeals decisions that had read Buckley as limiting regulation to magic words. McConnell, 540 U.S. at 

278 n.11 (Thomas, J., concurring in the judgment in part 

and dissenting in part). As Justice Thomas further noted, see ibid., the only express-advocacy decision that 

McConnell did not necessarily overturn was FEC v.

Furgatch, 807 F.2d 857 (9th Cir.), cert. denied, 484 U.S. 

850 (1987)—the case from which the Commission de-
17 

rived the test codified at Section 100.22(b). See 1995 

Rules and Regulations, 60 Fed. Reg. at 35,292-35,295. 

None of the four post-McConnell decisions cited by 

petitioner—all of which address state statutes, not 

FECA—supports its position. One is from the same 

court that decided Furgatch and recognizes in dicta that 

Furgatch construed express advocacy in a manner identical to Section 100.22(b). See ACLU v. Heller, 378 F.3d 

979, 985 (9th Cir. 2004). Two applied a magic-words limiting construction to cure vagueness and overbreadth 

problems in particular state statutes, while recognizing 

that the First Amendment would permit broader regulation. Center for Individual Freedom v. Carmouche, 449 

F.3d 655, 665-666 & n.7 (5th Cir. 2006), cert. denied, 549 

U.S. 1112 (2007); Anderson v. Spear, 356 F.3d 651, 664-

665 (6th Cir.), cert. denied, 543 U.S. 956 (2004). And the 

remaining decision is from the same court of appeals 

that decided this case. See North Carolina Right to 

Life, Inc. v. Leake, 525 F.3d 274 (4th Cir. 2008). The 

Fourth Circuit has explained why the decision below is 

consistent with that one, see Pet. App. 17a-20a, and an 

asserted intra-circuit conflict would not justify further 

review in any event, see Wisniewski v. United States, 

353 U.S. 901, 902 (1957) (per curiam). 

In accord with the decision below, courts of appeals 

that have addressed the issue since Citizens United

have unanimously held that the First Amendment does 

not impose an express-advocacy limitation—much less a 

magic-words limitation—on disclosure requirements. 

See Center for Individual Freedom v. Madigan, 

No. 11-3693, 2012 WL 3930437, at *12-*14 (7th Cir. Sept. 

10, 2012); National Org. for Marriage v. McKee, 649 

F.3d 34, 54-55 (1st Cir. 2011), cert. denied, 132 S. Ct. 

1635 (2012); Human Life of Wash. Inc. v. Brumsickle, 
18 

624 F.3d 990, 1016 (9th Cir. 2010), cert. denied, 131 

S. Ct. 1477 (2011); National Org. for Marriage, Inc. v. 

Roberts, 753 F. Supp. 2d 1217, 1220-1222 (N.D. Fla. 

2010), aff  ’d sub nom. National Org. for Marriage Inc. v. 

Cruz-Bustillo, No. 11-14193, 2012 WL 1758607 (11th Cir. 

May 17, 2012) (per curiam). That uniform and correct 

application of this Court’s precedents does not warrant 

further review. 

3. This Court’s intervention is likewise not warranted to review petitioner’s challenge (Pet. 24-32) to the 

Commission’s approach to determining political-committee status. 

a. As a preliminary matter, the Federal Register notice describing the Committee’s case-by-case adjudicatory approach is not subject to judicial review. The Administrative Procedure Act (APA) authorizes courts to 

hear challenges only to “final agency action”—i.e., action that consummates the agency’s decisionmaking process and determines the rights and obligations of parties. 5 U.S.C. 704; see Bennett v. Spear, 520 U.S. 154, 

177-178 (1997). The Commission’s notice does not purport either to establish a binding norm or to decide any 

entity’s legal status. The primary purpose of the notice 

was to explain why a broad regulation was not created, 

and the notice simply provides guidance about politicalcommittee status and the major-purpose test based on 

specific administrative and civil enforcement actions. 

72 Fed. Reg. at 5604; see pp. 4-5, supra. 

The court of appeals found APA review to be proper 

on the understanding that petitioner was challenging the 

practices described in the Federal Register notices, rather than the notices themselves. Pet. App. 23a n.4. But 

the publication of Federal Register notices describing 

the results of the Commission’s adjudications does not 
19 

permit a party that has not yet been subject to the adjudicatory process to challenge that process preemptively. 

Rather, if the Commission ever initiates any enforcement proceedings against petitioner—which it has not 

done, and may never do—petitioner will be entitled to 

raise all of its challenges to the Commission’s approach 

in that context. 

 b. Even if the Commission’s statements regarding 

political-committee status were subject to APA review, 

the court of appeals correctly rejected petitioner’s challenge. Under the major-purpose test, an organization is 

not regulated as a political committee unless its “major 

purpose * * * is the nomination or election of a candidate.” Buckley, 424 U.S. at 79. The Commission has 

consistently determined on a case-by-case basis whether 

an organization’s major purpose is the nomination or 

election of candidates. See 72 Fed. Reg. at 5596. To the 

extent petitioner contends that such case-by-case adjudication is per se unlawful, that contention lacks merit. 

As the court of appeals correctly recognized (Pet. App. 

25a-26a), this Court’s precedents give agencies discretion to administer the law through individual adjudications rather than by promulgating categorical rules. 

See, e.g., SEC v. Chenery Corp., 332 U.S. 194, 203 (1947) 

(“[T]he choice made between proceeding by general rule 

or by individual, ad hoc litigation is one that lies primarily in the informed discretion of the administrative 

agency.”); see also Shays v. FEC, 511 F. Supp. 2d 19, 31 

(D.D.C. 2007) (“[P]laintiffs have been unable to cite any 

case where a court, absent a clear directive from Congress, required an agency to institute rulemaking in the 

place of adjudication. This Court will not be the first.”). 

Here, the Commission has reasonably determined 

that an adjudicatory approach is the best way to make 
20 

the inherently context-specific determination of an organization’s “major purpose.” See Pet. App. 26a (“The 

determination of whether the election or defeat of federal candidates for office is the major purpose of an organization, and not simply a major purpose, is inherently a comparative task, and in most instances it will require weighing the importance of some of a group’s activities against others.”); Shays, 511 F. Supp. 2d at 31 

(concluding that the FEC’s “decision not to employ 

rulemaking” in this context “is not arbitrary and capricious”). In making such determinations, the Commission has consulted sources such as a group’s public 

statements, government filings (e.g., IRS notices), 

statements of purpose, and spending on particular election or issue-advocacy campaigns. See 72 Fed. Reg. at 

5601-5602, 5605 (describing prior cases). These are the 

same sources that courts have considered in applying 

Buckley’s major-purpose test. See FEC v. Malenick, 

310 F. Supp. 2d 230, 234-237 (D.D.C. 2004) (basing major-purpose determination on, inter alia, organization’s 

statements in brochures, fax alerts sent to potential and 

actual contributors, and activities to influence federal 

elections), amended on reconsideration, No. Civ. A. 02-

1237, 2005 WL 588222 (D.D.C. Mar. 7, 2005); FEC v.

GOPAC, Inc., 917 F. Supp. 851, 859, 864-866 (D.D.C. 

1996) (“The organization’s purpose may be evidenced by 

its public statements of its purpose or by other means, 

such as its expenditures in cash or in kind to or for the 

benefit of a particular candidate or candidates.”). 

c. Petitioner contends that the major-purpose test 

can be satisfied only if an entity spends more than half 

of its funds on magic-words express advocacy (see Pet. 

29-30), or if its “organic documents” reveal an “express 

intention to operate as a political committee” (Pet. 30). 
21 

In support of that argument, petitioner cites FEC v.

Massachusetts Citizens for Life, Inc., 479 U.S. 238 

(1986), and Colorado Right to Life Comm., Inc. v. Coffman, 498 F.3d 1137 (10th Cir. 2007). Pet. 27-30. But the 

major-purpose test was not at issue in Massachusetts 

Citizens for Life, where it was “undisputed” that the 

plaintiff’s “central organizational purpose” was not candidate-related. 479 U.S. at 252 n.6. In suggesting that 

the plaintiff’s “independent spending” could theoretically “become so extensive that the organization’s major 

purpose may be regarded as campaign activity,” id. at 

262, this Court neither stated nor implied that expressadvocacy communications are the only kind of “campaign activity” that can satisfy the major-purpose test. 

Nor did the Court establish a rigid rule that an organization must devote more than 50% of its funds to campaign-related spending in order for such spending to be 

deemed “extensive.” 

The Tenth Circuit in Coffman invalidated a state 

statute that did not use the major-purpose test at all, 

but instead based political-committee status only on annual expenditures. See 498 F.3d at 1153-1154. To the 

extent that the court discussed the major-purpose test, 

it emphasized that this Court in Massachusetts Citizens 

for Life had “suggested two methods to determine an 

organization’s ‘major purpose’: (1) examination of the 

organization’s central organizational purpose; or (2) 

comparison of the organization’s independent spending 

with overall spending.” Id. at 1152. As discussed above, 

determining the “central organizational purpose” of a 

group is precisely how the Commission and the lower 

courts have made their major-purpose determinations. 

Petitioner’s argument that the Commission’s approach chills speech and association (Pet. 31-32) is like-
22 

wise misplaced. As discussed above, see pp. 10-11, supra, if petitioner were classified as a political committee, 

that classification would subject it only to disclaimer and 

disclosure requirements, not to direct restrictions on its 

speech. And any concerns about the potential intrusiveness of the inquiry into an organization’s major purpose 

are substantially mitigated by the Commission’s general 

reliance on public documents as evidence of the organization’s goals. Pet. App. 27a. 

 d. Contrary to petitioner’s assertion (Pet. 26-28, 30-

31), the question presented here is not the subject of any 

circuit conflict. Other than Coffman, the only decisions 

petitioner specifically asserts to be in conflict with the 

Commission’s methodology are other decisions by the 

same court of appeals that decided this case. See Pet. 

28. The panel below perceived no intra-circuit conflict, 

Pet. App. 27a-28a, and any such conflict would not warrant this Court’s review, see Wisniewski, 353 U.S. at 

902. Petitioner also briefly mentions (Pet. 12) the 

Eighth Circuit’s recent en banc decision in Minnesota 

Citizens Concerned for Life, Inc. v. Swanson, 692 F.3d 

864 (2012), but that decision simply struck down a state 

statute that imposed political-committee-style disclosure 

requirements without any major-purpose constraint. Id. 

at 875 nn.9-10 (distinguishing state statute from disclosure requirements for federal political committees). 

Petitioner also suggests (Pet. 30) that the Court 

should grant certiorari to resolve a circuit conflict about 

whether “there is a major-purpose test.” But no party 

in this case has previously disputed the existence of the 

test or its application to political-committee determinations under 2 U.S.C. 431(4)(A), and the court of appeals 

did not address that issue. See, e.g., Pennsylvania 

Dep’t of Corrections v. Yeskey, 524 U.S. 206, 212-213 
23 

(1998) (“Where issues are neither raised before nor considered by the Court of Appeals, this Court will not ordinarily address them.”) (citations omitted). In any 

event, the absence of such a test would not benefit petitioner. The decisions petitioner cites suggest that organizations may be regulated even when they do not

have the major purpose of nominating or electing candidates. See McKee, 649 F.3d at 59; Human Life of Wash. 

Inc., 624 F.3d at 1009-1011; see also Cruz-Bustillo, No. 

11-14193, 2012 WL 1758607, at *1 (agreeing with 

McKee). Adoption of that rule obviously would not insulate petitioner from the disclaimer and disclosure requirements that are the subject of petitioner’s complaint. 

CONCLUSION 

The petition for a writ of certiorari should be denied. 

Respectfully submitted. 

ANTHONY HERMAN

General Counsel 

LISA J. STEVENSON

Deputy General Counsel 

DAVID KOLKER

Associate General Counsel 

ADAV NOTI

Acting Assistant General 

Counsel 

Federal Election Commission

DONALD B. VERRILLI, JR. Solicitor General 

NOVEMBER 2012