02/29/2012 11:49 1307G327024

canon
#0126 P.002/029
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CiMing limavatiw Solu6oi,
February 29, i26l2
VTA E-MAIL. FACSIMILE & FIRST CLASS MAIL
W'"/"' ''iZ'
Anthony Hennan
Genera] Counsel
Federal Election Comniission
999 E Street N.W.
Washington, D.C. 20463
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jiree
Dear Mr. Herman: ^ ^i. :^ "
Speech is an unincorporated'bscp&^^'i^^ '^^^^'^H^*^^
issues, candidates, and the 2012 ibiectibias;^ A|5Bfc^#^S9f^^ -^/ J '.If-:'
Requestor cannot dcstcrmine v*etter Ss^plann^S^^ ^I^^^^^J^^ WS^^i^M
a"'*political committee" siki-v^^iSSa^^
Commission regulations. Be&istirti?isSe^^ -l^^l-iSJ:-:"
consideration within twenty days ojSSs^ic^sSst, or i^"^-'&i**^^f^^v r^^ ..
437^aX2) and 74 Fed. Reg, 32,160(Ji^ 7,2p99).
THE REQUESTOR
:": "i*". '.""... "'irtK I Sir."I'xr. :f'-s~-!" '111"."
defeat of clearly identified candidates. It will not make any Sfc^and or direct contributions to
federal candidates, party committees, or poKtical conmiittees tot make contnbutjons to Meral
candidates or political party committees. Free Speech will not .make coordinated expenditures
withiii the meaning of the Federal Election Campaign Act CTECA"). The association is not
affiliated with any group or committee that makes conUibutions within the meaning of the
FECA. Requestor has inchidcd .a copy of its associalional bylaws as EXHIBIT 1 with this
request - .ijiP^^i/j:;^^^^^?
iVc.:i?.'? "'r.jTTriffw'.'j'?. ?j"-*i5"'i""'? "i
Office:1902'niomes/We.,S(e.201Cheyenn^WY82001 | Mailing: 1740 H Dell Range Blvd. 1(459 Cheynr^|^l ^^
(307) 632-7020 ~ www.WyLibei1y.org
ii.^i^'
Exhibit A
02/ 29/ 2012 11: 49 1307G327024 canon #012G P. 003/ 029
FACTUAL BACKGROUND
Free Speech is made xxp of three members, Charles Curley, Robert Brinkmann, and Max Douglas
Watford. Charles Curley is a self-employed individual residing in Thermopolis, Wyoming.
Robert Brinkmann and Douglas Watford are retired and residents of Cheyenne, Wyoming.
Together, they have formed the organisation '*Fiec Speech,'' have identified one contributor
willing to give $2,000 or more, and would like to buy small advertisements with local media
outlets and on the popular Intemet destination Facebook. See EXHIBIT 2. Requestor has
included examples of advertisement buys, dates, and prices subject to modification depending on
market prices and the development of the 2012 electoral season. See EXHIBIT 3. Free Speech
would like to ask for more than $1,000 fi:om other individuals to help support its speech. Free
Speech would also like to draw upon donations from its members to pay for advertisements
costing more than $2,000 that discuss public issues relevant to the upcoming federal elections,
voting, and policy positions of candidates for federal office. Free Speech is unable to afford
qualified legal counsel to sort through the more than "568 pages of regulations, 1,278 pages of
explanations and justifications for those regulations, and 1,771 advisory opmions" overseen by
the Commission. Citizens United v. FEC, 130 S.Ct 876,89S (2010). It sunply wishes to speak.
See U.S. Const, amend. I ("Congress shall make no law respecting an establishment of religion,
or prohibiting the fiee exercise thereof; or abridging the fieedom of speech, or ofthe press; or the
right of the people peaceably to assemble, and to petition the govemment for a redress of
grievances").
Members of Free Speech plan to save their money to budget for additional advertisements
beyond those described herein. Hiese would be similar to the ones listed in this advisory opinion
request ("AOR**). However, it cannot afford additional legal fees nor can it timely communicate
with the public if it is forced to request advisory opmions each time it would like to speak or if it
is demanded it register as a **political action committee** sometime in the midst of its public
commumcations. Because of this, Free Speech seeks clear instruction fix>m the Commission so
that it may properly organize and order its actions so as to avoid any violation ofthe FECA while
exercising its First Amendment rights.
PROPOSED SPEECH
As soon as possible. Free Speech will begin paying for advertisements that discuss issues
conceming limited government, public policy, the dangers of the current administration, and
their connection with candidates for federal ofEice. Requestor will be using inexpensive means
of communication to further its voice and viev^^int on these topics. The full text of proposed
scripts are included below, while the entire set of modified scripts along with visual and audio
infonnation can be found in EXHIBIT 2.
A. GUN CONTROL
**Gun$ save lives. That's why all Americans should seriously doubt the qualifications of Obama,
an ardent supporter of gun control. This M , get enraged, get engaged, and get educated. And
support Wyoming state candidates who will protect your gun rights."
Exhibit A
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b. ENVIRONMENTAL POUCY
^President Obama opposes the Government Litigation Savings Act. This is a tragedy for
Wyommg ranchers and a boon to Obama*s environmentalist cronies. Obama cannot be counted
on to represent Wyoming values and voices as President This November, call your neighbors.
Call your fiiends. Talk about ranching."
C. ETHICS
''Who is President Obama? He preaches the importance of high taxes to balance the budget, but
nominates political elites who haven't paid theirs. He talks about budget and tax priorities, but
passes a blind eye to nominees who don't contribute their fair share. Call President Obama and
tell him you don't approve of his taxing behavior."
D. BUDGET REFORM
**Congresswoman Lummis supported the Repeal Amendment, which would have restored fiscal
sanity to our federal debt Congresswoman Lummis is brave in standing against the political
elite and deserves your siq>port. Make your voice heard. Do everything you can to support
Congresswoman Lummis this fall and work toward fiscal sanity."
E. AN EDUCATED VOTER VOTES ON PRINCIPLE
''Across America, millions of citizens remain uninformed about the truth of President Obama.
Obama, a Presid^t who palled around with Bill Ayers. Obama, a President who was cozy with
ACORN. Obama, a President destractive of our natural rights. Real voters vote on principle.
Remember this nation's principles."
P. FINANCIAL REFORM
"President Obama supported the financial bailout of Fannie Mae and Freddie Mac, permitting
himself to become a puppet of the banking and bailout industries. What kind of person supports
bailouts at the expense of average Americans? Not any kmd we would vote for and neither
should you. Call President Obama and put his antics to an end."
G. THE HEALTH CARE CRISIS
"President Obama supports socialized medicine, but socialized medicine kills millions of people
worldwide. Even as Americans dis^proved of ObamaCare, he pushed ahead to make socialized
medicine a reality. Put an end to the brutality and say no to socialized medicine in the United
States."
PROPOSED DONATION REQUESTS
A. THE WAR CHEST
"Friends of fi:eedom celebrated when the Supreme Court decided Citizens United. Now, more
than ever, we can niake the most effective use of your donations this coming fidl. Donations
given to Free Speech are funds spent on beating back the Obama agenda. Beating back Obama
in the newspapers, on the airwaves, and against his $1 billion war chest"
Exhibit A
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B. STRATEGIC SPEECH
"This M , 23 Democrat incumbents are up for election in the U.S. Senate. Seven have akeady
decided to retire, but some, like Jon Tester of Montana, haven't gotten the message. With your
donation, we'll sttategically speak out against the expansion of government-run healthcare and
so-called 'clean energy' booiidoggles like Solyndra, which Senators like Tester fully support
It's time to retire failed socialist policies."
C. CHECKING BOXES
"'Leading from behind,' President Obama takes advice fix)m socialist staffers, usually choosmg
fix)m a checklist of oppressive, debt-driving policies without even considering freedom-based
and fiscally-conscious alternatives. Checking the right box on the November ballot is important,
but like Obama's memos it's just not enough. Take the lead in making the message of Free
Speech heard: your donation will infoim real American leadership."
D. MAKE THEM LISTEN
"In 2010, the Tea Party movement ushered in an historic number of liberty-fiiendly legislators.
But President Obama and his pals in Congress didn't get the message: Stop the bailouts. No
socialized healthcare. End oppressive taxes. But we won't be silenced. Let's win big this fiall.
Donate to Free Speech today."
QUESTIONS PRESENTED
1. Win Requestor's Proposed Speech be deemed ^express advocacy" and subject to
regulation?
Free Speech would like to speak publicly v^thout being subject to the lengthy and complicated
regulations overseen by the FEC. The Commission's extensive regulations concenung speech
about candidates and political issues severely hamper the ability of grassroots groups to exercise
their protected First Amendment rights. Whether through the difficult-to-comply-with '^political
committee status" or the never-understood-and-never-explamed "express advocacy" standard,
the FEC's regulations effectively mute Free Speech from speaking publicly unless clear guidance
and boundaries are established.
Requestor seeks instruction fix)m the Conmiission conceming whether, and why, any of the
above listed scripts, and those found in EXHIBIT 2, would constitute "express advocacy" under
11 C.F.R. 100.22(a) or (b).
Requestor seeks clarification fiom the Conmiission for its future speech where the boundary line
is found between unregulated issue advocacy and regulated express advocacy or regulated
communications. While counsel for Free Speech has studied the uitricacies of 11 C.F.R.
10022(b), enforcement matters, advisory opinions, and Explanation and Justification ("H&J")
statements, no consistent guidance can be found. For example, the Express Advocacy E&J
issued by this Cominission explains that "communications discussing or commenting on a
candidate's character, qualifications or accomplishments are considered express advocacy under
new section 100.22(b) if, in context, they have no reasonable meaning other tiian to encourage
actions to elect or defeat the candidate in question." 60 Fed. Reg. 35,292,35,295 (Jul. 6, 1995).
Exhibit A
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The Commission repeats this open-ended approach elsewhere with littie consistency or
underlying objectivity. See. e.g., MUR 5634 (Sierra Club), First General Counsel's Report
(F.E.C. 2005) (a "close call" transforms speech into express advocacy); MUR 5842 (Economic
Freedom Fund), Statement of Reasons of Commissioners Cynthia L. Bauerly and Ellen L.
Weintraub (F.E.C. 2009) (describing a two-Commissioner "electoral nexus" approach to speech
regulation); MUR 5831 (Softer Voices) (F.E.C. 2008), Fiist General Counsel's Report at 10
(describmg a "positive lighf approach to express advocacy determinations). Because Free
Speech would like to speak out in similar ways m the future, objective guidance as to the
boundary lines between regulation and fi:eedom would help ensure the rapid and easy
distribution of Requestor's prospective speech.
In the wake of the recognized sea change in election law following Citizens United, Requestor
also seeks guidance as to whether the Commission will continue to enforce 11 C.F.R.
10022(b). Prior to Citizens United, two federal circuit courts of appeal invalidated 11 C.F.R.
100.22(b) due to its glaring constitutional infirmities. See Maine Right to Life Committee v.
FEC, 914 F. Supp. 8 (D. Me. 1995), aJSTd per curiam, 98 F.3d 1 (1st Cir. 1996); FEC v.
Christian Action Network, 110 F.3d 1049 (4tii Ch:. 1997); Virginia Soc'yfor Human Life v. FEC,
263 F.3d 379 (4th Cir. 2001). Given this precedent, 11 CF.R. 100.22(b) teste on shaky
constitutional ground. Further, the Supreme Court's rebuke of the Commission in Citizens
United for its ever-morphmg standards of speech regulation suggest Section 100.22(b) cannot be
enforced consistentiy with the First Amendment Because of this. Free Speech would like to
know whether the Comnussion will continue to enforce 11 C.F.R. 100.22(b) and regulations
that attach to it.
2. Will Free Speech's donation requests be deemed "solicitations" and subject to
regulation?
Requestor seeks guidance wliether the proposed donation requests would be deemed
"solicitations" under the Conunission's regulations and whedier fimds raised fix>m such requests
would transform the group into a "political committee." As with its public outreach
advertisement scripte, it requires clear guidance fiom the Commission as to. what standards it
employs to determine if donation requests are transfonned into "solicitations" and subject to
regulation.
In light ofthe inconsistencies ofthe Commission, detailed and clear guidance as to whether the
proposed donation requests constitute "solicitations" and the specific standards the FEC employs
to arrive at tiiat conclusion is required. See, e.g,, MURs 5753 (League of Conservation Voters)
and 5754 (MoveOn.org Political Fund) (F.E.C. 2009); 2007 Political. Committee Stattis
Supplemental E&J, 72 Fed. Reg. 5595, 5603 (Feb. 7,2007); but see EMILY's List v. FEC, 581
F.3d 19 (D.C. Cir. 2009).
3. Will the activities described in this advisory opinion request trigger the requirement
to register and be regulated as a "political committee"?
Will any of the proposed activities by Free Speech render it a "political committee" subject to
registration and regulation by the FEC? No candidate for public ofiice controls Free Speech and
it does not hold its major puipose as the election or defeat of any candidate for public ofiice.
Thus, it appears inconceivable to Requestor that a small group of likeminded citizens must
Exhibit A
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canon
#0128 P.007/029
register and report with the federal government just to speak. However, additional guidance by
the FEC in how it determines tiie "major purpose" of an organization is requested given the
Commission's lack of clarity in fliis area. See, e.g.. Unity W v. FEC, 596 F.3d 861 (D.C. Cir.
2010); FEC v. Machinists Non-Partisan Political League, 655 F.2d 380, 392 (D.C. Cir. 1981);
and see MUR 5854 (Lantern Project) (F.E.C. 2008); MUR 5751 (Leadership Fonun) (F.E.C.
2006); MUR 6073 (Patriot Majority) (F.E.C. 2009); MUR 5842 (Economic Freedom Fund),
Statements of Reasons, Commissioners Cynthia L. Baueriy and Ellen L. Weintraub.
Thank you for your consideration of this request.
cerely,.
Benjamin T. Barr
Wyoming Liberty Group
Free Speech
S^hen^ Klem
Wyoming Liberty Group
Free Speech
Tel.: (307) 632-7020
Fax:(307)632 - 7024
benjamin.ban@gmail.com
stephenJdeiii@wyliberty.org
1902 Thomes Ave
Ste. 201
Cheyenne, WY 82001
Exhibit A
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Exhibit 1
Exhibit A
02/23/20,2,1:50 13076327024 non ,012G P.008/023
The imdcisigned Members hereby adopt the following bylaws (the "Bylaws") for the creation and
governance of Free Speech as of February 21,2012:
BYLAWS
OF
FREE SPEECH
(the "Association")
ARTICLE I
ORGANIZATION
Section 1. Fonnation. Each ofthe undersigned Members hereby acknowledges the fbmiacion of
tbe Association as an unincoiporated association in accordance with the Wyoming Unifomi
Unincorporated Non-Profit Association Act, Wyo. Stat. Ann. 17-22-101 tiirough 17-22-115 (the
"Act*^, and confirms and agrses to such Member's status as a Msmber of the Association.
("Member" shall have the meaning ascribed to "Member" in die Act, Wyo. Stat. Ann. 17-22-
102(aXi))^ its name is Tree Speech."
Section 2. Mailing Address. The mailing and business address ofthe Association shall be 776S
Aztec Dr., Cheyenne WY 82009 or such otiier place within the State of Wyoming as the
Members shall determine.
Sectioo 3. Registered Agent The initial registered agent of the Association In the State of
Wyoming is Robert T. Brinkmann, and tiie address of the initiai registered agent is 7765 Aztec
Dr., Cheyenne WY 82009. The name and address of tiie registered agent must be filed with tiie
Secretary of State of Wyoming as provided in tiie Act and may be changed to such otiier agent or
ofRce as the Members designate from time to time in die manner provided under the Act.
Section 4. Organization. The Association shall be made up of Members elected to Membership
by the then-current Members of the Association as set forth in these Bylaws. No person may
become a Member by virtue of providing financial or other support to tiie Association, by
declaring him or herself a Member of tbe Association, or by virtue of Membership, participation
in or association with any other organization. No dues shall be required of Members, nor shall
the pstyment of any sums to the Association be deemed grounds for Membership herein.
Section 6. Tenn and TermiBation. The term of the Association shall commence as ofthe date
of these Bylaws and shall continue until the dissolution of the Association by vote of two-thirds
of tiie theihcurrent elected and serving Members.
Section 7. Powers. In furtherance of its mission, subject to the Bylaws and tiie Act, the
Association shall have the power to take any action or incur any obligation as an Association.
Section 8. LimitatioD on Liability. In accordance with the Act, tiie debts, obligations and
liabilities of the Association, whether arising in contract, tort or otherwise, shall be solely the
debts, obligations and liabilities of the Association, and none ofthe Members, officers or agents
of the Association shall be obligated personally for any such debt, obligation or liability of the
Exhibit A
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^3"" #0126 P.010/029
Association solely by reason of being a Member, officer or agent or otherwise participating in the
management ofthe Association.
ARTICLE ll
MISSION
The Association is an independent group of individuals which promotes and protects free speech,
Umhed governmem, and constitutional accountability. We operate independently of any
candidate and advocate positions on various poiiticai issues including free speech, sensible
environmental policy, gun rights, land rights, and control over personal bealtii care.
ARTICLE III
MEMBERS
Section 1. General Powers. The property, affairs and business of the Association shall be
managed and controlled by its Members as a body.
Section 2. Namber and lectioB of Members. Initial Members shall be three in number, which
may be changed by a majority vote of the Members. All new and continuing Members shall be
elected by then-current Members by ma jority vote serving in one-year terms.
Section 3. Resignation, Removal, and Vacancies. Any Member may resign at any time with
written notice to the President or all Members. The vote of two-thirds of all tfie Members is
required to remove a Member from office prior to the expiration of his term. Any vacancy
occurring among the Members shall be filled by a majority vote ofthe remaining Members.
Section 4. Meetings. Members may meet as frequentiy or infrequentiy as they decide, so long as
one Associatk)n meeting is held per year. Notice of meetings must be given at least seven days in
advance by written notice personally, through e-mail, or by mail; A majority of Members'
presence is required to constitute a quorum.
Section 5. Compensation. Members shall not receive any salaries for their services as such, but
by resolution of the Members expenses of attendance may be allowed for attendance at each
regular or special meeting ofthe Members; however, nothing herein contained shall be construed
to preclude any Member from serving the Association in any other capacity and receiving
reasonable compensation therefore.
ARTICLE IV
OPERATIONS, CONTRACTS, CHECKS, DEPOSITS AND FUNDS
Section 1. Contracts and Cbeclis. The Members may authorize any officer or officers, agent,
or agents of the Association in addition to the ofTicers so authorized by these Bylaws, to enter into
any couiract or execute and deliver any instrument, or issue checks, drafts, or orders for the
payment of money or notes in the name of and on behalf of the Association and such authority
may be general or confined to specific instances.
Exhibit A
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<r0128 P. 011/029
Section 2. Deposits. Except as provided below, all fimds shall be deposited from time to time to
the credit of the Association in such banks, trust companies, or other depositories as the Membeis
may select. No funds of $1,000 or more in aggregate per calendar year shall be solicited,
accepted or deposited until .It is determined the Association may legally accept these fimds.
Section 3. Boolis and Reeords. The Association shall keep conect and complete books and
records of accounts and shall also keep minutes of the proceedings of its Members and
committees having any of the authority ofthe Members.
SectioB 4. Business Activities Prohibited. The Association shall not engage in business
activities including: offering of goods or services that results in income to the Association and
advertising or promotional activity which results in income to the Association, other than in the
form of donations.
Section 5* Claims Barred. The Association shall have no persons, other than employees and
creditors with fair marlcet value contracts, afRliated in any way that could allow them to make a
claim on die organization's assets or earnings.
Section 6. Benefits of Support for tlie Association. The Association shall not offer to any
supporters or Members any benefit that is a disincentive for tiiem to disassociate themselves with
the Association on the basis of the Association's position on a political issue. Such benefits
include but are not limited to: credit cards, insurance policies, consumer discounts or savings
plans; and trainmg, education, or business information, other than that which is necessary to
enable recipients to engage in the promotion of the Association's political ideas.
Section 7. Prohibitions. The Association shall not make independent expenditures-
communications of express advocacy of the election or defeat of a clearly identified candidate for
fedoal office by use of specific words like **vote for," "elect," "defeat," or "reject." The
Association shall not make a contribution or directly or indirectiy make a donation of anything of
value to any candidate for elected public office, any political committee or political party.
Section 8. Disclosures to supporters^ Donors to tiie Association shall be advised that their
donations are not tax deductible and will be used to advocate the discussion of political issues.
DoQors to the Associatioa shall also be advised that all donations to the Association will be spent
according to the sole discretion of tiie Association.
ARTICLE V
INDEMNinCATION
Any present or former Member or officer of the Association, or such other persons so designated
in tiie discretion ofthe Members or the legal representative of such person, shall be indemnified
by the Association against all reasonable costs, expenses, and counsel fees paid or incurred in
coonection with any action, suit, or proceeding to which any such person or his legal
representative may be made a party by reason of his being or having been a Member or officer
having served the Association, except In relation to matters as to which he shall be found guilty of
gross negligence or misconduct where indemnity is sought and in relation to matters settied or
Exhibit A
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#0128 P.012/029
otiierwise terminated without a fmal detennination on the merits where such settlement or
temiination is predicated on the existence of such gross negligence or misconduct.
ARTICLE VI
MEMBER AND ASSOCIATION RULES
Section 1. Froliibited vendors. The association shall not use any media, polling, fundraising,
public relations, advertising, or political vendor for services in producing or distributing an
Association's communication or in advising the Association about a Fresidential, Congressional,
or Senate race involving the featured candidate if tiiat vendor is also engaged, or was engaged in
the same election cycle, by the candidate featured or mentioned in the Association's
communication, his or her opponent, or a political party conunittee.
Section 2. Prohibited employees. The Association shall not employ or otherwise use former
employees or independent contractors, in the same election cycle, of any candidate featured or
mentioned by tbe Association's conununication, his or her opponent, or a political party
committee.
Section 3. Independent speech. Members, officers, employees, and agents ofthe Association
shall ensure the independence of all speech by the Association about any candidate or political
party. They shall do this in part by understanding 11 C.F.R. 109.21 or successor regulations
that define coordinated communications in order to avoid coordination with a candidate, an
autiiorized committee of a candidate, a political party committee, or an agent of any of these.
Section 4, Prohibited speech. Members, acting as agents of the Association, officers,
employees, or agents of tbe Association shall not inquire about the campaign plans, projects,
activities or needs of a candidate mentioned in an Association's communication, his or her
opponent or a politica! party committee.
Section 5. Use of nonpublic information. A Member, officer, employee, and agent of or donor
to the Association who possesses nonpublic information about the campaign plans, activities, or
needs of a candidate featured or mentioned m an Association's communication shall not relay
such infonnation to the Association, and a Member or donor shall recuse himself from all
Association deliberations regarding potential communications about a featured candidate or his or
her opponent. Such officer, employee or agent of the Association shall not participate in any
work ofthe Association related to the advertisements featuring such a candidate.
Section 6. Other prohibited speech. Members, officers, employees and agents of and donors to
the Association shall noi inform any candidate featured or mentioned in an Association's
communication, his or her opponent, a poiiticai party oommittee or agents of any ofthe foregoing
about tbe Association's plans, projects, activities, or needs-^especiaily as it relates to advertising.
Section 7. Actioi by candidates. No candidate featured or mentioned in an Association's
communication, his or her opponent, political party committee, or agent of any ofthe foregoing
shall be involved in any way i^atsoever In making decisions about the Association's activities or
in the oeaiion or distribution of Association advertisements.
Exhibit A
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#0128 P.013/028
Section 8. Reqoests by candidates. The Association and its Members, officers, agents,
employees and donors shall not make any communications featuring or mentioning a candidate at
the request of the featured candidate^ his or her opponent a political party, or an agent of any of
the for^mg. The Association and its agents and donors shall not seek tbe assent, directly or
indirectiy, of any communication from any candidate feamred in the communication, his or her
opponent, a political party committee, or an agent of any of the foregoing.
Section 9. Speech by donors. Any donor to the Association who has any connection witii any
candidate featured or mentioned in an Association's communication shall not communicate in
any way with the candidate, his or her opponent, a political party committee, or agents of any of
the foregoing regarding any details of Association advertisements.
Section 10. Commnnication of Obligations. The Members shall cause all employees and
agents of and donors to the Association to be notified of their duties under this Article VI.
ARTICLE VII
AMENDMENTS TO BYLAWS
These BylaWs may only be amended or repealed and new Bylaws may be adopted by a majority
of the tiien elected Members at any meeting, if at least seven days written notice is given of
intention to alter, amend, or repeal, or to adopt new Bylaws at such meeting.
Exhibit A
02/29/2012 11:51 13078327024 canon ,0128 P.014/028
SIONATUSU5 BLOCK
IN WlTTi^ WSmE^, iBiders^Qed has executed Aese Bylaws as of date first
wrip^abfifve.
2^
Charles Corley * Date
Exhibit A
02/29/2012 11:51 13078327024 canon #0128 P. 015/029
SIGNATURE BLOCK
WfTNESS WHEREOF, tiie undersigned has duly executed tiiese Bylaws as of date first
IN
written above.
MEMBER:
Robwt T. Brinkmann Date
Exhibit A
02/28/2012 11:51 13076327024 canon . . . . .
#0128 P.018/029
SIGNATURE BLOCK
IN WITNESS WHEREOF, tiie undersigned has duly executed tiiese Bylaws as of date first
written above.
MEMBER:
Max Dougl^lVatford iti / Date
Exhibit A
02/29/2012 11:51 13078327024 canon #0128 P.017/029
Exhibit 2
Exhibit A
02/29/2012 11:51 13078327024
canon #0128 P.018/029
Scripts
Radio Ads
ENVIRONMENTAL POLICY SCRIPT
AUDIO:
President Obama opposes the Govemment Litigation Savmgs Act. This is a tragedy for Wyoming
ranchers and a boon to Obama's environmentalist cronies. Obama cannot be counted on to represent
Wyoming values and voices as President. This November, call your neighbors. Call your fiiends. Talk
about ranching.
FINANCIAL REFORM SCRIPT
AUDIO:
President Obama supported the financial bailout of Fannie Mae and Freddie Mac, permitting himself to
become a puppet oftiie banking and bailout industries. What kind of person supports bailouts at the
expense of average Americans? Not any kind we would vote for and neither shouki you. Call Piesidcat
Obama and put his antics to an end.
THE HEALTH CARE CRISIS SCRIPT
AUDIO:
President Obama supports sociali2cd medicine, but socialized medicine kills millions of people
worldwide. Even as Americans disapproved of ObamaCare, he pushed ahead to make socialized
medicine a reality. Put an end to the brutality and say no to socialized medicine in the United States.
Exhibit A
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canon
#0128 P.019/029
Newspaper Ads
FINANCIAL REFORM
[Full page picture of President Obama, bold font centered below him]:
President Obama supported the fmancial bailout of Fannie Mae and Freddie Mac, permitting himself to
become a puppet ofthe banking and bailout industries. What kind of person supports bailouts at the
expense of average Americans? Not any kind we would vote for and neither should you.
Call President Obama and put his antics to an end.
HEALTH CARE CRISIS
[Full page picture of a family picture torn in half)
President Obama supports socialized medicine, but socialized medicine kills millions of people
worldwide. Even as Americans disapproved of ObamaCare, he pushed ahead to make socialized
medicine a reality.
Put an end to the brutality and say no to socialized medicine in the United States.
Facebook Ads
GUN CONTROL
(PicUire of handgun, 110 pixels wide by 80 pixels tall)
(Titie:) Stand Against Gun Control
Obama supports gun control. Don't trust him. Support Wyoming state candidates who will protect your
gun rights. .
ENVIRONMENTAL POUCY
(Picture of a Wyoming ranch, 110 pixels wide by 80 pixels tall)
(Titie:) Learn About Ranching
Obama's policies are a tragedy for Wyoming ranchers, and he does not represent our values. This
November, leaxn about ranchmg.
u
Exhibit A
02/29/2012 11:52 13078327024
canon
#0128 P.020/029
Television Ads
GUN CONTROL SCRIPT
AUDIO:
VIDEO:
Guns save lives.
Newspaper clippings with headlines describing
self-defense witii firearms fade in, piling up one
atop another.
That's v^hy all Americans should seriously doubt
the qualifications of Obama, an ardent supporter of
gun control.
Clippings dissolve to a picture of President Obama,
and one newspaper headline below him: '"President
Obama defends attomey general regarding ATF
tactics (LA Times, Oct. 6,2011)"
This fall, get enraged, get engaged, and get
educated. And support Wyoming state candidates
who will protect your sun rights.
Dissolves to a picture of the Wyoming state flag,
panning down to the Wyoming Capitol Building.
ETHICS SCRIPT
AUDIO:
VIDEQ:
Who is Piesident Obama?
Pictuie of President Obama shakmg hands with
Hugo Chavez.
He preaches the importance of high taxes to
balance the budget.
Fade to another picture of Obama giving State of
the Union, superimposed *^bama Aims $1.4
Trillion Tax Increase at Highest Earners (San
Francisco Chronicle, Feb. 14, 2011)"
but nominates political elites who haven't paid
theirs.
Cut to picture on left side of screen of Secretary
Treasury Timothy Geithner giving testimony,
superimposed ''Geithner apologies for not paying
taxes (CBS News, Feb. 18,2009)"
He talks about budget and tax priorities, but passes
a blind eye to nominees who don*t contribute their
fair share.
Picturo fades in on right side of screen of Tom
Daschle, superimposed *Tax Woes Derail
Daschle^s Bid for HeaMi Chief (NPR, Feb. 3,
2009)"
Call President Obama and tell him you donH
approve of his taxing behavior.
Fade to picture of President Obama and Michelle
Obama enjoying themselves in Hawaii.
in
Exhibit A
02/29/2012 11:52 13078327024
canon
#0128 P. 021/029
BUDGET REFORM
AUDIO:
Congresswoman Lummis supported the Repeal
Amendment^ which would have restored fiscal
sanity to our federal debt.
Congresswoman Lummis is brave in standing
against the political elite and deserves your support
Make your voice heard.
Do everything you can to support Congresswoman
Lummis this fdl and work toward fiscal sanity.
VIDEO:
Picture of Representative Lummis, superimposed
'Tea Party Pushes Amendment to Veto Congress
(AOLNews,Dec. l,2Q10)"
Small videos of Representative Lmnmis fade in,
speaking on news programs, meeting with people,
etc.
Wyoming flag fades m tiie background, reUiming
to original picture of Rep. Lummis.
AN EDUCAira) VOTER VOTES ON PRINCIPLE
AUDIO:
Across America, nuUions of citizens remain
uninformed about the truth of President Obama.
Obama, a President who palled around with Bill
Ayers.
Obama, a President who was cozy with ACORN.
Obama, a President destructive of our natural
rights.
Real voters vote on principle. Remember ttiis
nation's principles.
VIDEO:
Picture of President Obama shaking hands with
Hugo Chavez.
Picture of Bill Ayers in Weather Underground
days, superimposed ' ^ i l l Ayers Dishes on Hosting
a Fundraiser for Barack Obama (Big Government,
Nov. 29,2011)."
"House votes to Strip Funding for ACORN (Fox
News, Sept. 17,2009)"
Video ofan ATF raid, fade to a video of TSA
scanning individuals in line for airport
Fades to still shot oftiie Bill of Rights,
superimposed "Remember this nation's principles."
iv
Exhibit A
02/29/2012 11:52 13078327024 canon #0128 P.022/028
Exbibit 3
Exhibit A
02/29/2012 11:52 13078327024 canon #0128 P.023/029
Free Speech Ads Budget Estimates
hiitial Budget for Free Speech advertising $2.000
Fundraising Goal: $10,000
Radio Ads
Budget: $1,000 (Production: $100-Air Time: $900)
Cost per 30-5econd ad (KGAB radio): $ 15 (during Rush Limbaugh Show)
Campaign: April 1 -November 3,2012
Total: 60 Advertisements (2-3 per week for duration)
Newsprint Ads
Budget: $500
Cost per full-page, single-color ad (per day, Wyoming Tribune Eagle): $250
Campaign: Saturday, May 12 and Sunday, May 27
Total: Two advertisements
Facebook Ads
Budget: $500
CPM (Cost Per 1,000 impressions): $.40
Campaign: April 1 - April 30,^ 2012
Total: 200,000 impressions on Facebook within Wyoming network
Television Ads
-Thb liadget is Dependent on Funds Raised^
Budget: $8,000 (Production: $2,500 - Air Time: $5,500)
Cost per 30-second ad (KCWY television): $175 (during Saturday Nightly News, pre-emptible).
Campaign: May 1 - November 3,2012
Total: ~30 Advertisements (1 per Saturd^ Nlghtiy News for duration)
Exhibit A
02/29/2012 11:52 13078327024
canon
#0128 P.024/029
Cheyenne
KIGN IKLEN | KGAB
Rate Card
Rush Limbaugh Show, weekdays, 10 am-1 pm, :30 Spot - $15
Sunday, Monday, and Tuesday only: !4 price on KGAB.
Streaming Paelcage: Match any schedule on onr websites for only 5% more!!
Internet Advertising KGAB Radio website
Leader board Ad, $60/station - $150/3 station duster, 20% Share of Voice
Expanding Pencil Ad, $100/station - $200/3 station cluster, 20% Share of Voice
Top-RightAd, $75/station-$200 3 station cluster, 20% Share of Voice
In Line Ad, after Item 3 or 7, $35/station - $100 3 station cluster, 20% Share of Voice
Internet Advertising CheyenneSquarccom website
BusinessDireaory Ad, $20/month
Leader board Ad, $60/Price includes Dlrectoty Ad, 20% Share of Voice
Ej^anding Pencil Ad, $100 /Price includes Directory Ad, 20% Share of Voice
Top-Rail Ad, $75 /Price Includes Directory Ad, 20% Share of Voice
1912 Capitol Avenue, Suite 300 Cheyenne, Wyoming 82001
307-632-4400 Fax: 307-632-1818
Exhibit A
02/29/2012 11:52 13078327024
canon
#0128 P.025/029
Wyoming Tribune Eagle - Retail, National and Classified Advertising Rates
Publislied by:
Cheyenne Newspapers, Inc.
702 West Lincolnway
Cheyenne, WY 82001
307-633-3151
1-800-561-6268
advsec@wyomingnews.com
www.WyomingNews.com
fax: 307-633-3191
MEMBERS
Audit Bureau of Circulations
Media Records
Wyoming Press Association
Newspaper Association of America
Effective Date fbr all advertising rates in thb
listing is January 1,2012.
Infbrmation on this rate card is presented in accordance with
the prescribed format of the Standard Rate & Data Sen/ice
(SROS). Information not applicable to these rates has been
eliminated. The Wyoming Tribune Eiagle is published daily.
re^^^L '-^^g^^^^^--
Citif ied Adyerti^^^i^^i^ger _^
Electronic Ad Transfer Terry Bennett
REPRESENTATIVES
The Wyoming Tribune Eagle is represented naUonally by:
The Wyoming Press Association
P.O. Box 20030
Cheyenne, WY 82003
(307) 635-3905
POLICY
A The Wyoming Tribune Eagle reserves the right to edit, alter
or omit any advertisement.
B. The Wyoming Tribune Eagle assumes no fmancial respon-
sibility for typographical errors or for omissions of copy^ Li-
ability for errors or omissions shall not exceed the cost of that
portion of space attributable thereto. Claims for adjustments
must be made within 7 days of publication. Credit allowable
for first insertion only. In event of error or omission, we will,
if requested, furnish a letter of explanation which can be
utilized by the advertiser.
CThe advertiser and/or advertising agency or agem assumes
all liability for advertisements published (including illustra-
tions, text, claims, etc.) and agrees to assume any and all
responsibility for claims occun-ing therefrom against the
Wyoming Tribune Eagle.
D. f^ge size is 6 columns x 20" for retail & national display
advertising, 9 columns x 20" fbr classified & classified
national advertising.
E. Double-trucks or other ads spreading across 2 pages and
using the gutter between the pages are acceptable, as long as
they meet the minimum depth requirements. The gutter will
count as one column of advertising space and the advertiser
will be charged accordingly.
F. The Wyoming Tribune Eagle reserves the right to revise
advertising rates at any time.
G. The Wyoming Tribune Eagle will not be responsible for
printing or computer materials left 30 days after publication.
H. All accounts are due and payable on the 15th of the
month following insertion. Any customer not having estab-
lished credit will be required to provide cash with copy.
I. Ail intermediary orders or contracts must state that the in-
termediary and their clients are jointly and severally obligat-
ed to make payment for advertising space ordered. Otherwise
intermediary contracts will be cash with order.
J. Ads over 18" wiil be billed at the full column depth of 20"
COMMISSION, CASH DISCOUNTS, FINANCE CHARGES
Advera'sing rates are not commissionable.
Cash discount does not apply.
A late payment Service Charge of 1.5% per month, 18% per
annum, will be assessed on all account balances not paid
within 60 days ofthe invoice date.
ADVERTISING RATES AND PROGRAMS
A. Rates are based on "column inches." To determine.the area
of an ad, multiply the number of columns by the height in
inches.
Example: 2 columns wide by 5 inches deep equals 10
column inches.
As a rule, the more you buy, the less your cost. You can lower
costs by running your ads more. You can run any combina-
tion of ad sizes and frequency during a 12 mondi period.
Your cost is based on the total number of inches used or with
larger volume, the total dollars used within your contract
year.
Ali rates are noncommissionable. For customers without bill-
ing an-angements, payment is required with copy until credit
can be established.
Repeat Ad Discount - Any second or more consecutive runs
scheduled on a single insertion within a 6-day period may
qualify for a 20% repeat discount on space and color,pro-
vided there are no changes. This discount is available mr any
retail, national or classified display advertisement.
Please note that only one discount per ad is acceptable.
We will not double discount
Guaranteed Position - Specific page placement in the paper,
when mechanically and physically possible, is available at an
additional 25% premium added lo the overall cost ofthe ad.
Positions must be requested at time of insertion.
ill
Exhibit A
02/29/2012 11:53 13078327024
canon
#0128 P.028/029
B. 2012 OPEN RATB:
$23.20 PCI Retail and National Display (NET)
$16.60 PCI Classified Display (NET)
$18.90 PCI Classified National Display (NET)
Classified Line Ads
Local $7.47 for 3 lines (minimum) per day
National $9.59 for 3 lines (minimum) per day
Color Rates
Single Page WTE WTE & EXTRA!
Single color $250 $330
Full color $535 $665
C. ANNUAL LINAGE CONTRACTS
These retail/classified combination contracts are ideal for the
large-space advertiser seeking to reduce advertising rates.
All irKzhes will be converted to retail for purposes of tracking
contract fulfillment.
Retail, National, and Classified Display
Level Col. In. per Yr. Rate PCI
Retail Class. ggiall Cl sS^
V f ' i i j 52 16/ 28 ' $13.49" ""$16.66
14 23,449 35,173 $12.70 $9.80
D. Southeast Wyoming EXTRA!
The EXTRA! total market coverage (TMQ gives you additional
distribution xo nonsubscribers in the Cheyenne area at a very
reasonable cost in addition to your regular rate, or you may
place a stand alone ad in the Extra! for a slightly higher rate.
The EXTRA! is distributed free of charge every Wednesday to
nonsubscriber households and racks throughout Cheyenne.
Retail and National Display: Pick up your ad from the
Wyoming Tribune Eagle - $3.60 per column inch.
Stand alone ad in the Southeast Wyoming Extra! - $6.10 per
column inch. Six-monlh and one-year contracts available at
discounted rates.
Inserts: Inserts in the Southeast Wyoming Extra! are $510 for
up to 20 pages. Add $2 cpm for each 4 tab page increment
above 20 pages.
E. Front Page Notes: A 3" x 3" full color sticky removable ad
placed on ^ e front page, above the fold - $1400. This allows
you to be the only advertiser on the highly visible fi'ont page.
F. ToDo'' Rate:
The Wyoming Tribune Eagle's daily section focused on activi-
ties in the region. Special programs are available.
PREPRINT ADVERTISEMENT RATES (CPM-cost per thousand copies)
4""" " " ' " " ^ 6 " " ' $ ^ ..ri^. ^Z^::.:...::^Lj;r
12 $75 $74 $72 $71 $66 $65
20 S89,^.,,S79..... .,..$/!:5..^.. $^3 ..,.$7p...._.^....^$69
ir"""""""""* " " $ 8 9 ' $ 8 3 " " $ 7 8 " ' " " " $ 7 6 " " $ 7 3 $ 7 2 "
Additional pages, add $2 CPM for each 4-tab page increment.
PREPRINT POLICIES
Minimum Preprint Charge is $160.
Preprint Reservations and Shipping: Preprints must be ordered
7 working days prior to publication. Delivery of preprints is 7
working days prior to publication. Delivery accepted 8:00 am-
5:00 pm M-F only. All preprints must meet Wyoming Tribune
Eagle delivery and production requirements.
Quantity of Inserts: It is recommended that the advertiser
confirm delivered quantity requirements with ^ e Wyoming
Tribune Eagle just prior to ordering preprint run. We require
an additional 3% K>r spoilage.
MininNmi/Maximum Sizes: Preprinted supplements must be
no smaller than 5" X 7" and should be no larger than 12" wide
and 10.5" deep (folded edge). Exceptions to the above will
be handled on an individual basis, and will be accepted on
completion of satisfactory testing. Special handling may be
required. Card type supplements should be a minimum of
.007 inches (70 Ib weight). A second, or front fold, may con-
sist of a flap no less than 3 inches wide. This flap may vary in
size up to the full area of the card.
Zoned and Rul ul Distribution Preprints: Zoning of preprints
is available in the Wyoming Tribune Eagle, l^rtial distribution
in established zones is an additional $5 per 1,000. Custom-
ized zoning is available at an additional $10 per 1,000. Not
available on Sunday, Monday & Wednesday.
Special Handling: Nonstandard or odd-sized preprints may
require special handling and wifl be charged at an additional
$10 per thousand.
Unloadi i ^ Inserts: A charge of $55.00 |3er hour will be
applied ifdelivered inserts need to be unloaded by Wyoming
Tribune Eagle personnel.
Otiier Preprint Services: Delivery of preprints via direct mail
and delivery of preprints to non-subscribers is available. Com-
mercial single card development and insertion services are
available at very reasonable rates. See your Wyoming Tribune
Eagle advertising representative fbr details.
^omin^IHbuneEa^e
Exhibit A
02/29/2012 11:53 13078327024
canon
#0128 P.027/029
SPECIAL SERVICES
Service charges for extra advertising prints and electronic
transfer of ads or ad material.
Less than 1/2 page $15.00
iVlore than 1/2 page $30.00
Makeover/Reconstruction Charges
$55.00 per hour (1 hour minimum) - At the discretion of the
Advertising Director, ^i s charge will be made to advertis-
ers who make excessive changes on proofs or revises which
require extensive makeover of the mitial advertising layout
The charge will be applied for the actual time and expense
involved in the makeover.
Art Services
Basic layout, copy and clip art services are available at no
additional cost Original art or Intricate art Is available at the
cost of $55.00 per hour.
Photographic Services Available
Arrangements may be made through your adveitlsing repre-
sentative for pictures of people or merchandise to be used in
advertisements.
Web and Internet Services
The Wyoming Tribune Eagle offers a complete seleaion of
web design and site hosting services. Advertising positions also,
available. Go to www.wyomingnews.com for details.
Proofs
Proofs of advertisements will be provided upon request only if
all copy has been submitted by deadline. Proofs on ads of less
than one quarter of a jsage may be viewed at The Wyoming
Tribune Eagle office, but will not be delivered. Proofs of ads
which are a quarter of a page or larger may be delivered at the
customer's request
Please Note: Proofs are provided to customers for the
purpose of making minor ty|X)graphical or factual content
changes. Proofs are not provided as a speculative, layout so
^ e customer can make major layout and content changes.
Customers receiving proofs assume all liability for any
errors not noted on original proof as well as liability for
any change, not included with original layout or ad copy
but added to proof. At the Advertising Director's discre-
tion, customers who make excessive changes on proo^ or
revises will be billed an additional charge of $55.00 per
hour (1 hour minimum). Second proofs are not available.
Tear Sheets/Research
Tear sheets of published advertisements will be provided
upon request Requests must be made before publication.
Any request for tear sheets after publication will be at a charge
of isS-OO per hour.
This charge will also apply for excessive research projects.
Marketing and Demographic Information
Your Wyoming Tribune Eagle advem'sing representative can
help you with your media budget planning. Call your
advertising representative for more information.
SPECIAL SECTIONS
Special sections on a variety of subjects are published
throughout the year. See your representative for details.
SPECIAL DAYS/PAGES/FEATURES
Monday Portfolio (personal finance news)
Wednesday Food
Saturday Religion
Sunday Journey (including Outdoors, family
features, milestones, school news
and travel.)
ROP DEPTH REQUIREMENTS
Minimum space is 1 column inch. Advertisements over 18
inches deep will be billed at full column depth.
DEADLINES
Day of Publication
Tuesday
Thursday
Schedulir^ Deadlbie
Saturday Thursday
journey (SunSay) Tuesday
foOo Same as daily deadlines
Noon
3 pm
Discounts and proofs are not available for any ads tumed in
after deadline.
Holiday Deadlines: Wi ll be eariier than the deadlines listed
above. Deadlines for muliipage sections and extensive graphic
and/or color work will be accelerated. All Special Sections/
Publications have separate deadline struaures. Please see your
advertising representative for details.
Cancellations: No cancellations accepted after deadline.
Composition costs will be charged on any advertisement set
cancelled and not published within 14 days of cancellation.
Composition charges will be equal to two-thirds (2/3) of the
cost of the advertisement
MECHANICAL MEASUREMENTS AND REQUIREMEIMTS
Standard page Retail Display Classified Display
WidtfiofRage 6 column 9 column
Depth of Page 20" 20"
l l i s M i i ^ ^
3.625" 2-4077' 2 wlunijn w ^ ^
4 column width
6 column width
8 column widdi
7.375"
11.125"
4.8983"
7.389"
9.8797"
Double Truck Width 23' 23"
DouUe Trucks are charged at 260 column inches in Retail
Display and 380 column inches in Classified Display.
^onun^lriblilieBa^e 1-800-561-6268 WyomingNews.com VISA
V
Exhibit A
02/29/2012 11:53 13078327024
canon
#0128 P.028/029
...
Windmill Video Produciions LLC
104 East 25ttiSireet
Cheyenne, Wyoming 82001
307-635-7643
Estimate
DATE INVOICE #
2/19/2012 N/A
Cost Estimate Prepared For:
JOB ADDRESS
Free Speech
TV Spots
Cheyenne, Wy.
QTY DESCRIPTION UOM UNITPRICI AMOUNT
2.0 Voice-Overs 30 Second Spots 200.00 400.00
2.0 Voice-Overs 15 Second Spots 100.00 200.00
36.0
Graphics/Video Preparation/All
Post Production.(Does not
include the creation or
gathering of material.) Hours 50.00 1.800.00
Thank You Total $2,400.00
VI
Exhibit A
02/29/2012 11:54 13078327024
canon
#0128 P.029/029
KCWY IQ 2011 RATE CARD
KCWY IQ 2011 RATE CARD
WEEKEND Saturday Sect i on 1 Sec t i ons Sect i on
5a-5:30a Mysteiy Hunters $20 $15 $10
5:303-63 Young Icons $20 $15 $10
6a-8a NBC Saturday Today $50 $35 $40
8a-11a NBC Discovery Ki ds $60 $35 $20
11a-4p NBC Sports and Various $100 $70 $25
4P-5P The Closer $60 $40 $20
5p^: 30p Nai vs 1^ # 5pm $250 $175 $100
$250 $176 $100
6p-7p Ugi yBet ^ $60 $40 $30
10p-10:35p $350 $245 $150
KkSSp-IZOOa Saturday Night Live $100 $70 $40
I2:00a-1a Poker Alter Daric $30 $20 $15
1a-1:30a in Wi ne Country $20 $15 $10
1:30a-2:30a Criminal Minds $20 $15 $5
2a-3a UglyBatty $15 $10 $5
3:30a4:30a Ttie Cl oser $15 $10 $5
4:30a-5a Whadced Out Sports n/a n/a n/a
Sui d ay
5a-5:30a American Lafino $20 $15 $10
5:30a-6a LafiNafion $20 $15 $10
6sh6:30a IMusic of the Spoken Word $20 $15 $10
6:30a-7a P.AIIen Smitli's Garden Home $40 $30 $20
7a8a NBC Sunday Today $150 $105 $50
8a-9a Meet The Press $250 $175 $100
9a-10a Pai d Program n/a n/a n/a
10a-4p NBC Sports and Various $100 $70 $25
4 p ^
Numb3rs $60 $40 $15
5|^6:30p $250 $175 $100
5-3QI K6D $250 $175 $100 $250 $175 $100
10p-10:30p $350 $245 $150
10:30|>-11p Paki Program n/a n/a n/a
11p-12:00a Entertainment Tonight Wtekend $60 $40 $20
12a-1a Criminal Minds $30 $20 $10
l a-2a NUMB3RS $20 $15 $5
2a-2:30a The Tim Carver Show $20 $15 $5
2a-3a Dateline NBC $15 $10 $5
NBC Meet The Press An Night $15 $10 $5
4:30a-5a First Busi ness $30 $20 $15
*** all rates are for : 30^ :60;s are dout>le the ISO's
Rate level 1 is a Fixed Rate
Rate level 3 is preemptil}le rate with notice
Rate level 4 is preemptible rate witiiout notice
VII
Exhibit A
Benjamin Barr
<benjamln.barr@gmall.com> To NStipanovic@fec.gov
03/09/2012 01:36 PM cc stephen.ldein@wyliberty.org, ARothstein@fec.gov.
EChlopak@fec.gov. ABeli.CTR@fec.gov
Subject Re: Free Speech Advisory Opinion Request
Neven,
Thank you. Your included statements are correct.
I would only clarify for statement three, below, that Free Speech noted in its advisory opinion
request that it plans to speak out in similar ways in the future. See Free Speech AOR at 2, 5. The
advisory opinion request accurately describes its currently planned activities.
Forward,
Benjamin Ban-
On Fri, Mar 9,2012 at 1:02 PM, <NStipanovic@fec.gov> wrote:
Dear Messrs. Barr and Klein:
In our recent telephone conversation, you provided us with additional information
regarding the advisory opinion request submitted on behalf of Free Speech. We have
set out below our understanding of certain issues covered during the conversation.
Please either confirm the accuracy of these statements or correct any misperceptions.
(1) You submitted the advisory opinion request on behalf of Free Speech as their
counsel. There is no formal relationship between Free Speech and Wyoming Liberty
Group.
(2) Exhibit 2 of the request contains the advertising scripts that Free Speech proposes
to use. Free Speech also proposes to use the "donation request" scripts described in
o
- rj ^
HE
prn 2
r-R CO
So
Exhibit A
the main body of the request letter.
(3) Free Speech does not currently plan to engage in activities beyond those
described in the request.
(4) While Free Speech's plans are subject to modification depending on market prices
and the continuing development of the 2012 electoral and political season, Free
Speech currently plans to allocate its advertising budget equally among the
advertisements described in the advisory opinion request. For example, it plans to
allocate the $1,000 budget for radio ads evenly among the three radio ads whose
scripts are included in the advisory opinion request. It also currently plans to allocate
its budget equally among its planned newspaper ads, Facebook ads, and TV ads.
(5) Free Speech will not accept donations from individuals who are foreign nationals
or Federal contractors.
We would appreciate your response by email. Your response may be treated as a
supplement to the advisory opinion request and, as such, may be placed on the public
record.
Thank you for your cooperation.
Neven F. Stipanovic
Attorney, Policy Division
Office of General Counsel
U.S. Federal Election Commission
Tel: 202-694-1650
Exhibit A
PUBUC COMMENTS ON DRAFT ADVISORY OPINIONS
Members of the public may submit written comments on draft advisory opinions.
DRAFT ADVISORY OPINION 2012-11 is now avdlable for conunent. It was
requested by Benjamin T. Barr, Esq. and Stephen R. Klein, Esq., on behdf of Free
Speech, and is scheduled to be considered by the Commission at its public meeting on
April 12,2012. The meeting will begin at 10:00 a.m. and will be held in tiie 9* Floor
Hearing Room at the Federd Election Commission, 999 E Stteet, NW, Washington, DC.
Individuds who plan to attend the public meeting and who require specid assistance,
such as sign language interpretation or other reasonable accommodations, should contect
the Commission Secretary, at (202) 694-1040, at least 72 hours prior to the meeting date.
Ifyou wish to comment on DRAFT ADVISORY OPINION 2012-11, please note
the following requirements:
1) Comments must be in writing, and they must be both legible and complete.
2) Comments must be submitted to the Office of the Commission Secretary by
hand delivery or fax ((202) 208-3333), with a dupUcate copy submitted to tiie
Office of Generd Counsel by hand delivery or fax ((202) 219-3923).
3) Comments must be received by noon (Eastem Time) on April 17,2012.
4) The Commission will generdly not accept comments received after the
deadline. Requests to extend the comment period are discouraged and
unwelcome. An extension request will be considered only if received before
the comment deadline and then only on a case-by-case basis in specid
circumstances.
5) All timely received comments will be made avdlable to the public at fhe
Commission's Public Records Office and will be posted on the Commission's
website at http://saos.nictusa.com/saos/searchao.
Exhibit B
REOUESTOR APPEARANCES BEFORE THE COMMISSION
The Commission has implemented a pilot program to diow advisory opinion
requestors, or their counsel, to appear before the Commission to answer questions at the
open meeting at which the Commission considers the draft advisory opinion. This
program took effect on July 7,2009.
Under the program:
1) A requestor has an automatic right to appear before the Commission if any
public draft of the advisory opinion is made avdlable to the requestor or
requestor's counsel less than one week before the public meeting at which the
advisory opinion request will be considered. Under these circumstances, no
advance written notice of intent to appear is required. This one-week period is
shortened to three days for advisory opinions under the expedited twenty-day
procedure in 2 U.S.C. 437f(a)(2).
2) A requestor must provide written notice of intent to appear before the
Commission if dl public drafts of the advisory opinion are made available to
requestor or requestor's coimsel at least one week before the public meeting at
which the Commission will consider the advisory opinion request. This one-
week period is shortened to three days for advisory opinions under the
expedited twenty-day procedure in 2 U.S.C. 437f(a)(2). The notice of intent
to appear must be received by the Office of the Conunission Secretary by
hand delivery, emdl (Secretarv@fec. gov), or fax ((202) 208-3333), no later
than 48 hours before the scheduled public meeting. Requestors are
responsible for ensuring that the Office of the Commission Secretary receives
timely notice.
3) Requestors or their counsel unable to appear physically at a public meeting
may participate by telephone, subject to the Commission's technicd
capabilities.
4) Requestors or their counsel who appear before the Commission may do so
only for the limited purpose of addressing questions rdsed by the Commission
at the public meeting. Their appearance does not guarantee tiiat any questions
will be asked.
Exhibit B
FOR FURTHER INFORMATION
Press inquiries: Judith Ingram
Press Officer
(202) 694-1220
Commission Secretary: Shawn Woodhead Werth
(202) 694-1040
Comment Submission Procedure: Kevin Deeley
Acting Associate General Counsel
Other inquiries:
(202) 694-1650
To obtdn copies of documents related to Advisory Opinion 2012-11, contact the
PubHc Records Office at (202) 694-1120 or (800) 424-9530, or visit the Commission's
website at http://saos.nictusa.com/saos/searchao.
ADDRESSES
Office of the Commission Secretary
Federd Election Commission
999 E Stteet, NW
Washington, DC 20463
Office of Generd Coimsel
ATTN: Kevin Deeley, Esq.
Federd Election Commission
999 E Stteet, NW
Washington, DC 20463
Exhibit B
AGENDA DOCUMENT NO. 12-3;^
rn
FEDERAL ELECTION COMMISSION
Washington, DC 20463
im mi l p b: 0
April 11,2012
MEMORANDUM
TO:
FROM:
Subject:
The Commission
Anthony Herman /\
Generd Counsel ' '
Kevin Deeley
Acting Associate Generd Counsel
Amy Rotiistein^,,;^?:^
Assistant Generd Counsel
Neven F. Stipanovic ^
Attomey
Erin R. Chlopdc
Attomey
AllisonT. S teinle;^^^^^^V^^^
Attomey
Draft AO 2012-11 (Free Speech)
AGENDA ITEM
For Meeting of
SUBMITTED LATE
Atteched is a proposed draft of the subject advisory opinion. Additiond Drafts
may be fortiici^ihg. We fiave'beOT~asked"to"fia^^ displaced oii the
agenda for April 12,2012.
Attachment
Exhibit B
1 ADVISORY OPINION 2012-11
2
3 Benjamin T. Barr Esq.
4 Stephen R. Klein, Esq. DRAFT
5 Wyoming Liberty Group
6 1740 H Ddl Range Blvd. #459
7 Cheyenne, WY 82009
8
9 Dear Messrs. Barr and Klein:
10 We are responding to your advisory opinion request on behdf of Free Speech,
11 conceming the application of the Federal Election Campdgn Act, as amended (the
12 "Act"), and Commission regulations to Free Speech's proposed plan to finance certdn
13 advertisements and ask for donations to fund its activities.
14 The Commission concludes that: none of Free Speech's eleven proposed
15 advertisements would expressly advocate the election or defeat of a clearly identified
16 Federd candidate; (2) none of the proposed donation requests would be solicitations of
17 "contributions"; and (3) Free Speech's proposed activities would not require it to register
18 and report with the Commission as a politicd committee.
19 Background
20 The facts presented in this advisory opinion are based on your letter received on
21 Febmary 29,2012, and your email received on March 9,2012.
22 Free Speech describes itself as "an independent group of individuds which
23 promotes and protects free speech, limited govemment, and constitutional
24 accountability." Bylaws, Art. II. It is an unincorporated nonprofit association formed
25 under the Wyoming Unincorporated Nonprofit Association Act, WYO. STAT. ANN.
Exhibit B
AO 2012-11
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1 17-22-101 to 115 (2012), and a **politicd organization" under 26 U.S.C. 527 oftiie
2 Intemd Revenue Code. ^ It currently has three individud members.
3 Free Speech will not make any contributions to Federd candidates, political
4 parties, or politicd committees that make contributions to Federd candidates or political
5 parties. Nor is Free Speech affiliated with any group that makes contributions. Free
6 Speech dso will not make any coordinated expenditures.^
7 Free Speech plans to run 11 advertisements, which it describes as "discuss[ing]
8 issues conceming limited govemment, public policy, the dangers of the current
9 administtation, and thdr connection with candidates for federal office." Free Speech will
10 run these advertisements in various media, including radio, television, the Intemet, and
11 newspapers. Free Speech currently plans to run the following ads, which are described
12 more fully in response to question 1 below.
13 Radio Advertisements
14 Free Speech plans to spend $1,000 on three advertisements to be dred on locd
15 radio station KGAB AM in Cheyenne, Wyoming. These advertisements, which Free
16 Speech calls "Environmentd Policy," "Financid Reform," and "Health Care Crisis," will
' The Intemd Revenue Code defines a politicd organization as "a party, committee, association, fund, or
other organization (whether or not incorporated) organized and operated primarily for the purpose of
directly or indirectly accepting contributions or making expenditures, or both, for [the tax-]exempt
function" of "influencing or attempting to influence the selection, nomination, election, or appointment of
any individual to any Federal, State, or local public office or office in a political organization," or the
election or selection of presidential or vice presidential electors. 26 U.S.C. S27(e).
^ Free Speech's bylaws prohibit its members, officers, employees, and agents from engaging in activities
that could result in coordination with a Federal candidate or politicd party. Bylaws, Art. VI. And
members, officers, employees and agents have a duty to "ensure the independence of all speech by the
Association about any candidate or politicd party... in order to avoid coordination." Bylaws, Art. VI,
Sec. 3.
Exhibit B
AO 2012-11
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1 be dred 60 times between April 1 and November 3,2012. Free Speech currentiy plans to
2 dlocate its budget evenly among the three advertisements, spending $333.33 for each.
3 Newspaper Advertisements
4 Free Speech plans to spend $500 on two advertisements that will appear in the
5 Wyoming Tribune Eagle on May 12 and May 27,2012. Free Speech plans to spend $250
6 on each advertisement. The advertisements - "Financid Reform" and "Hedth Care
7 Crisis" - will include pictures as well as text.
8 Internet Advertisements
9 Free Speech plans to spend $500 on two advertisements that will appear on
10 Facebook. The advertisements will appear for a totd of "200,000 impressions on
11 Facebook within Wyoming network" between April 1 and April 30, 2012. Free Speech
12 plans to spend $250 on each advertisement. The two advertisements, entitled "Gun
13 Conttol" and "Enviromnentd Policy," will include pictures as well as text.
14 Television Advertisements
15 Free Speech plans to spend $8,000 on four advertisements that will appear on the
16 locd television network KCWY in Cheyenne, Wyoming. The advertisements will appear
17 approximately 30 times between May 1 and November 3,2012. Free Speech plans to
18 spend $2,000 on each of the four advertisements. The advertisements are entitled "Gun
19 Conttol," "Etiiics," "Budget Reform," and "An Educated Voter Votes on Principle."
20 In totd, Free Speech plans to spend $10,000 to run the advertisements described
21 above. Free Speech "would like to speak out in similar ways in the future."
22 Free Speech has identified one individud donor willing to give it $2,000 or more,
23 and would like to ask other individuds to donate more than $1,000 "to help support its
Exhibit B
AO 2012-11
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1 speech." Free Speech would dso draw upon fimds from its three members to pay for
2 advertisements costing more than $2,000. Free Speech, however, will not accept
3 donations from individuds who are foreign nationds or Federd conttactors. Free Speech
4 plans to ask for donations from individuals through four separate donation requests,
5 which are described in response to question 2 below.
6 Questions Presented
7 7. Will Free Speech's proposed advertisements be "express advocacy "?
8 2. Will Free Speech's proposed donation requests be solicitations of
9 contributions?
10 3. Will the activities described in this advisory opinion request require Free
11 Speech to register and report to the Commission as a political committee?
12
13 Legal Analysis and Conclusions
14
15 Question 1. Will Free Speech's proposed advertisements be "express advocacy "?
16 No. For the reasons stated below, none of Free Speech's proposed advertisements
17 constitute "express advocacy."
18 The concept of "express advocacy" originated in Buckley v. Valeo, 424 U.S. 1
19 (1976). There, the Court held the Act's definition of expenditure to be vague and
20 overbroad.^ As the Court expldned, "[i]n its efforts to be dl-inclusive,... the provision
21 rdses serious problems of vagueness, particularly tteacherous where, as here, the
22 violation of its terms carries crimind pendties and fear of incurring those sanctions may
23 deter those who seek to exercise protected First Amendment rights." Id., 424 U.S. at 76-
^ The Act's original disclosure provisions for independent expenditures were originally written more
broadly, to cover any expenditure made "for the purpose of... influencing" the nomination or election of
candidates for federal office.
Exhibit B
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1 77. To cure these defects, the Supreme Court constmed "expenditure" to reach only
2 funds used for communications that "expressly advocate the election or defeat of a
3 clearly identified candidate." It expldned that "expressly advocate" required ''explicit
4 words of advocacy of election or defeat of a candidate." Id. at 43 (emphasis added). The
5 Court expldned that this "explicit words of advocacy" constmction means
6 "communications contdning express words of advocacy of election or defeat, such as
7 *vote for,' *elect,' 'support,' *cast your bdlot for,' *Smith for Congress,' *vote agdnst,'
8 'defeat,' 'reject.'" Id. at 44, n.52.
9 In direct response to the Court's decision in Buckley, Congress amended the Act
10 in 1976 to define "independent expenditure" as "an expenditure by a person advocating
11 tiie election or defeat of a clearly identified candidate " 2 U.S.C. 431 (17) (1976).
12 This was in tum defined to mean communications that included "express advocacy."
13 This change "refiect[ed] the Court's opinion in the Buckley case,"^ and specifically
14 "define[d] 'independent expenditure' to reflect the definition of that term in the Supreme
15 Court's decision in ^i^cAr/e;/V. Valeo."^
16 The post-Buckley congressiond amendments happened before fhe Supreme Court
17 mled in FEC v. Massachusetts Citizens For Life ("MCFL"), 479U.S. 238 (1986). In
^ Federal Election Campdgn Act Amendments of 1976, Report to Accompany H.R. 12406 (Report No. 94-
917), 94*^ Cong., 2d Session, at 82 (Minority Views).
^ Federal Election Campaign Act Amendments of 1976, Report to Accompany S. 3065 (Report No. 94-
677), 94*** Cong., 2d Session (Mar 2,1976) at S. Congress changed the independent expenditure reporting
requirements "to conform to the independent expenditure reporting requirements of the Constitution set
forth in Buckley v. Valeo with respect to the express advocacy of election or defeat of clearly identified
candidates." Joint Explanatory Statement of the Committee of Conference on the 1976 amendments to the
FECA at 40. See also Congressional Record (Senate), S 6364 (May 3,1976) (Sen. Cannon expldned that
the legislation was "codifying a number of the Court's interpretations of the campaign finance laws....").
Exhibit B
AO 2012-11
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1 MCFL, the Court relied on Buckley, and expldned that "in order to avoid problems of
2 overbreadth, the Court held that the stetutory language encompassed 'only fimds used for
3 communications that expressly advocate the election or defeat of a clearly identified
4 candidate,'" Id. at 248-49(citing Buckley, 44 U.S. at 80, id. at 42) and reiterated foottiote
5 52 of Buckley, which defined express advocacy to mean words such as "vote for,"
6 "elect," and "support," "cast your bdlot for," "Smith for Congress," "vote agdnst,"
7 "defeat," "reject." Id. at 238, 248-49(citing Buckley, 44 U.S. at 44, n.52). The Court
8 then mdntdned the constmction of the statutory language it had used in Buckley. "[T]he
9 definition of an expenditure under 441b necessarily incorporates the requirement that a
10 communication 'expressly advocate' the election of candidates." Id. at 248.
11 Factudly, MCFL concemed a newsletter distributed by an incorporated non-profit
12 issue group, that stated "Vote Pro Life," and next to which was a list of candidates and
13 indications as to whether those candidates were pro-life. Specificdly, in September 1978
14 (prior to the September primary elections), MCFL distributed a "Specid Edition"
15 newdetter. The front page oftiie newdetter stated "EVERYTHING YOU NEED TO
16 KNOW TO VOTE PRO-LIFE" followed by a statement to tiie reader tiiat "[n]o pro-life
17 candidate can win in November without your vote in September." MCFL, 479 U.S. at
18 243. '"VOTE PRO-LIFE' was printed in large bold-faced letters on the back page, and a
19 coupon was provided to be clipped and taken to the poll to remind voters of the name of
20 the 'pro-life' candidates." Id. The newsletter dso included a discldmer that stated "this
21 specid election edition does not represent an endorsement of any particular candidate."
22 The newsletter included a listing of dl the state and federd candidates that would be on
23 the Massachusetts primary bdlot, "and identified each one as either supporting or
Exhibit B
AO 2012-11
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1 opposing what MCFL regarded as the correct position on three issues." Id. Candidates
2 with a "y" next to thdr names were those who supported MCFL's issues; candidates with
3 a "n" by their names opposed MCFL's issues; and an asterisk was placed next to the
4 names of "incumbents who had made a 'specid contribution to the unbom in mdntaining
5 a 100% pro-life voting record in the state house by actively supporting MCFL
6 legislation." Id. at 243-44. Thirteen candidates' pictures were included in the newsletter
7 and all "13 had recdved a triple 'y' rating, or were identified either as having a 100%
8 favorable voting record or as having steted a position consistent with that of MCFL. No
9 candidate whose photograph was featured had even one 'n' rating." Id. at 244.
10 In holding that the newsletter contdned express advocacy, the Court noted that
11 ''Buckley adopted the 'express advocacy' requirement to distinguish discussion of issues
12 and candidates from more pointed exhortations to vote for particular persons... Just such
13 an exhortation appears in the 'Specid Edition.'" Id. at 249. The Court noted that the
14 newsletter "urges voters to vote for 'pro-life' candidates" and "dso identifies and
15 provides photographs of specific candidates fitting that description." Id. The Court
16 concluded that the newsletter "provides an explicit directive: vote for these (named)
17 candidates. The fact that the message is margindly less direct than 'Vote for Smith' does
18 not change its essentid nature. The Edition goes beyond issues discussion to express
19 electord advocacy." Id.
20 Subsequent to MCFL, tiie Nintii Circuit mled in FEC v. Furgatch, 807 F.2d 857
21 (9tii Cir. 1987). There, tiie Court held tiiat "[s]peech may only be termed 'advocacy' if it
22 presents a clear plea for action, and . . . it must be clear what action is advocated [i.e.,]..
23 . a vote for or against a candidate..." Id. at 864. Factudly, Furgatch concemed anti-
Exhibit B
AO 2012-11
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1 Carter newspaper ads that ran about a week before the 1980 election. The advertisement
2 was captioned "DON'T LET HIM DO IT." It made a number of specific references to
3 the upcoming election and the election process {e.g., "The President of the United Stetes
4 continues to degrade the electord process"; "He [the President] continues to cultivate the
5 fears, not the hopes of the voting public"; "If he succeeds the country will be burdened
6 with four more years of incoherencies, ineptness and illusion, as he leaves a legacy of
7 low-level campdgning"). The advertisement specifically mentioned current and former
8 opponents of the President (e.g., "[The President's] running mate outtageously suggested
9 Ted Kemiedy was unpatriotic"; "[T]he President himself accused Rondd Reagan of
10 being unpatriotic"). After criticizing Carter for his campaign tactics, the advertisement
11 stated: "If he succeeds the country will be burdened with four more years of
12 incoherencies, ineptness and illusion, as he leaves a legacy of low-level campaigning.
13 DON'T LET HIM DO IT!"
14 In analyzing the advertisement at issue, the Ninth Circuit held that the express
15 advocacy threshold will be met only if a communication "when read as a whole, and with
16 limited reference to extemal events, [is] susceptible of no other reasonable interpretation
17 but as an exhortation to vote for or against a specific candidate." Furgatch, 807 F.2d at
18 864. The court further held that "[t]his standard can be broken into three main
19 components":
20 "[S]peech is 'express'... if its message is unmistakable and
21 unambiguous, suggestive of only one plausible meaning";
22 "[S]peech may only be termed 'advocacy' if it presents a clear plea for
23 action"; and
Exhibit B
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1 "[Speech] must be clear what action is advocated. Speech cannot be
2 'express advocacy of the election or defeat of a clearly identified
3 candidate' when reasonable minds could differ as to whether it encourages
4 a vote for or against a candidate "
5 Id. The court then emphasized that "if any reasonable altemative reading of speech can
6 be suggested, it caimot be express advocacy." Id.
7 In analyzing the advertisement, the court said that "the words we focus on are
8 'don't let him.' They are simple and direct. 'Don't let him' is a command the only
9 way to not let him do it was to give the election to someone else." Id. at 865. The Ninth
10 Circuit held that the action urged was thus a vote against a candidate, and the
11 advertisement constituted express advocacy.^ That this clear plea for action requirement
12 was centtal to the holding of Furgatch was made clear by the Ninth Circuit in Califomia
13 Pro-Life Council, Inc. v. Getman, 328 F.3d 1088 (9tii Cir. 2003): "Furgatch ... presumed
14 express advocacy must contain some explicit words of advocacy." Id. at 1098 (emphasis
15 in original).
16 In the wake of MCFL, Furgatch, and other cases, the Commission amended its
17 regulatory definition of "express advocacy." As the Commission explained at the time,
18 the reworking of its regulations was done for clarity, and that the modifications simply
^ In Furgatch, the court set out a three-part standard for express advocacy, the second part of which is
absent from section 100.22(b). Furgatch, 807 F.2d at 864 ("First, even if it is not presented in the clearest,
most explicit language, speech is 'express' for present purposes if its message is unmistakable and
unambiguous, suggestive of only one plausible meaning. Second, speech may only be termed 'advocacy' if
it presents a clear plea for action, and thus speech that is merely informative is not covered by the Act.
Finally, it must be clear what action is advocated. Speech cannot be 'express advocacy of the election or
defeat of a clearly identified candidate' when reasonable minds could differ as to whetiier it encourages a
vote for or against a candidate or encourages the reader to take some other kind of action.") (emphasis
added).
Exhibit B
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1 "reworded" the prior regulation "to provide fiirther guidance on what constitutes express
2 advocacy of clearly identified candidates," and added "a somewhat fiiller list of
3 examples" of the "examples set forth in Buckley." See Explanation and Justification for
4 Final Rules on Express Advocacy ("Express Advocacy E&J"), 60 Fed. Reg. 35291,
5 352935 (July 6,1995). Section 100.22(a) defines "expressly advocating" as any
6 conununication that:
7 Uses phrases such as 'vote for the President,' 're-elect your Congressmanj'
8 'support the Democratic nominee,' 'cast your ballot for the Republican challenger
9 for U.S. Senate in Georgia,' 'Smitii for Congress,' 'Bill McKay in '94,' 'vote Pro-
10 Life' or 'vote Pro-Choice' accompanied by a listing of clearly identified
11 candidates described as Pro-Life or Pro-Choice,' 'vote against Old Hickory,'
12 ' 'defeat' accompanied by a picture of one or more candidate(s), 'reject the
13 incumbent,' or communications of campaign slogan(s) or individual word(s)
14 which in context can have no other reasonable meaning that to urge the election or
15 defeat of one or more clearly identified candidate(s), such as posters, bumper
16 stickers, advertisements, etc. which say 'Nixon's the One,' 'Carter '76,'
17 'Reagan/Bush' or 'Mondale!'
18
19 The Commission also added a new section to define "express advocacy." At the
20 time, the Commission made clear that the new section was not an expansive test, but
21 instead was merely providing "clarity" to reflect the Ninth Circuit's decision in FEC v.
22 Furgatch. The Conunission did not adopt a standard that would have included
23 "suggestions to take actions to affect the result of an election," id. at 35294, but instead
24 adopted section 100.22(b), which defines "expressly advocating" as any communication
25 tiiat:
26 When taken as a whole and with limited reference to extemal events, such as the
27 proximity to the election, could only be interpreted by a reasonable person as
28 containing advocacy of the election or defeat of one or more clearly identified
29 candidate(s) because: (1) the electoral portion of the communication is
30 uiunistakable, unambiguous, and suggestive of only one meaning; and (2)
31 reasonable minds could not differ as to whether it encourages actions to elect or
Exhibit B
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1 defeat one or more clearly identified candidate(s) or encourages some other kind
2 of action.
3
4 , The Explanation & Justification ("E&J") for the regulation does not elaborate on
5 what sort of "extemal events" are to be considered, only that they ought to be "pertinent."
6 Id. at 35294. The E&J does say that such contextual considerations will be done on a
7 "case by case" basis. Id. at 35295. It also explains tiiat the Conmiission declined to
8 adopt a specified number of days before an election within which a communication could
9 be deemed express advocacy. Id. The E&J also said that the mles of 100.22(b) "do not
10 affect pure issue advocacy, such as attempts to create support for specific legislation, or
11 purely educational messages." Id. Moreover, "the subjective intent of the speaker is not
12 a relevant consideration because Furgatch focuses the inquiry on the audience's
13 reasonable interpretation of the message." Id. Finally, the E&J said that
14 "[c]ommunications discussing or commenting on a candidate's character, qualifications,
15 or accomplishments are considered express advocacy... if, in context, they have no
16 other reasonable meaning than to encourage actions to elect or defeat the candidate in
17 question." Id. The Commission did "not establish a time frame in which these
18 communications are tteated as express advocacy. Thus, the timing of the communication
19 would be considered on a case-by-case basis." Id.
20 Section 100.22(b) has been deemed unenforceable by a number of courts.
21 See Va. Soc 'yfor Human Life v. FEC, 263 F.3d 379,392 ("VSHL") (holding tiiat
22 100.22(b) "violates the First Amendment" because "[t]he regulation goes to far because it
23 shifts the determination of what is 'express advocacy' away from the words 'in and of
24 themselves' to "the unpredictability of audience interpretation" (quoting FEC v.
Exhibit B
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1 Christian Action Network, Inc. ; 110 F.3d 1049,1051,1057 (4tii Cir. 1997))); Maine
2 Right to Life Comm.. Inc. v. FEC ("MRLC), 914 F. Supp. 8,13 (D. Maine), affdper
3 curiam, 98 F.3d 1 (1st Cir.1996), cert, denied, 522 U.S. 810 (1997) (section 100.22(b)
4 held "conttary to the statute as the United States Supreme Court and the First Circuit
5 Court of Appeals have interpreted it and thus beyond the power of fhe FEC"); Right to
6 Life of Dutchess Co., Inc. v. FEC, 6 F. Supp. 2d 248 (S.D.N.Y. 1998) (finding "tiiat 11
7 CF.R. 100.22(b)'s definition of 'express advocacy' is not autiiorized by FECA, 2
8 U.S.C. 441b, as that statute has been interpreted by the United States Supreme Court in
9 MCFL and Buckley v. Valeo."). Thereafter, the Commission stated publicly that it would
10 not enforce section 100.22(b) in either the First or Fourth Circuits.^
11 Similarly, several courts rejected the FEC's view of what constituted express
12 advocacy. For example, in Federal Election Commission v. Survival Education Fund,
13 Inc., 1994 WL 9658 (S.D.N.Y. 1994) (unreported), affd in part, rev'd in part, 65 F.3d
14 285 (2d Cir. 1995), the district court determined that a mailer which included a two-page
15 letter criticizing the Reagan Administtation's policies in Centtal America, called for
16 protests outside of the Republican National Convention, and provided an "Anti-War
17 Ballot" which listed a check-box next to the word "no" and several purported
18 administtation policies did not constitute express advocacy.
19 Likewise, in FEC v. Christian Coalition, 52 F. Supp.2d 45 (D.D.C. 1999), tiie
20 D.C District Court rejected the FEC's view that a number of election-related speech
^ On September 22,1999, the Commission decided by a vote of 6-0 to "formally confirm the Commission's
position that because 11 C.F.R. 100.22(b) has been found invalid by the United States Court of Appeals for
the First Circuit, and has in effect been found invalid in the United States Court of Appeals for the Fourth
Circuit, it cannot and will not be enforced in those circuits, unless and until the law of those circuits
changed or overruled."
Exhibit B
AO 2012-11
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1 contained express advocacy. For example, a mailer entitled "Reclaim America" was not
2 express advocacy. The mailer stated that "the 1994 elections for Congress . . . will give
3 Americans their first opportunity to deliver their verdict on the Clinton Presidency. If
4 America's 40 million eligible Christian voters are going to make our voices heard in the
5 elections this November... we must stand together, we must get organized, and we must
6 start now," that "America's 40 MILLION Christian voters have the potential to make
7 sweeping changes in our govemment... IF Christians get to the ballot box and IF
8 Christians have accurate information about how their elected representatives are voting,"
9 and that the mailing was intended to give Christians a "chance to make the politicians in
10 Washington feel the power of the Christian vote." Id. at 57.
11 The court also concluded that a "Congressional Scorecard" produced by the
12 Christian Coalition which listed how federal office holders voted on several issues,
13 indicated the organization's preferred position on those issues, and provided an overall
14 score measuring that Congressman's level of agreement with the Christian Coalition did
15 not constitute express advocacy where the scorecard indicated that it was "designed to
16 give Christian voters the facts they need to hold their Congressmen accountable." Id. at
17 57-58.
18 Subsequentiy, Congress passed the Bipartisan Campaign Refonn Act of2002,
19 colloquially called McCain-Feingold. Senators McCain and Feingold first inttoduced
20 legislation in 1997 to block the iise of corporate and union general tteasury funds for
21 "unregulated electioneering disguised as 'issue ads.'" See 143 Cong. Rec. S159(Jan. 21,
' The court used the standard announced by the Ninth Circuit in FEC v. Furgatch, the case upon which
100.22(b) is based.
Exhibit B
AO 2012-11
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1 1999); 143 Cong. Rec. S10106-12 (Sep. 29,1997). This early version oftiie McCain-
2 Feingold bill "addressed electioneering issue advocacy by redefining 'expenditures'
3 subject to FECA's strictures to include public commumcations at any time of year, and in
4 any medium, whether broadcast, print, direct mail, or otherwise, that a reasonable person
5 would understand as advocating the election or defeat of a candidate for federal office."
6 See 143 Cong. Rec. 810107,10108.
7 Eventually, McCain-Feingold's sponsors abandoned their effort to redefine
8 "expenditure" and instead proposed the regulation of "electioneering communications,"
9 "in conttast to the earlier provisions ofthe... bill." See McConnell, No. 02-0582,
10 Opposition Brief of Defendants at 50 {quoting 144 Cong. Rec. H3801, H3802 (June 28,
11 2001). In part to respond to concems raised by the bill's opponents about its
12 constitutionality, Senators Snowe and Jeffords proposed an amendment to McCain-
13 Feingold to draw a brigfht line between so-called "genuine" issue advocacy and a
14 narrowly defined category of television and radio advertisements, broadcast in proximity
15 to federal elections, "that constitute the most blatant form of [unregulated]
16 electioneering." 144 Cong. Rec. S906, S912 (Feb. 12,1998). The earlier provisions of
17 the McCain-Feingold bill that sougiht to tinker with the meaning of "express advocacy"
18 were dropped.^
19 Senator Snowe explained that this approach had been developed in consultation
20 with constitutional experts, to come up with 'clear and narrowing wording' which strictiy
^ Congress is currently considering legislation that would, inter alia, modify the definition of "independent
expenditure" to include both express advocacy and the functional equivalent of express advocacy. Disclose
of Information on Spending on Campaigns Leads to Open and Secure Elections Act or DISCLOSE Act,
H.R. 4010,112* Cong. 2.
Exhibit B
AO 2012-11
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Draft
1 limited the reach of the legislation to TV and radio advertisements that mention a
2 candidate within 60 days of a general election, or 30 days of a primary, so as specifically
3 to avoid the pitfalls of vagueness identified in Buckley and MCFL. Senator Snowe
4 explained that the provision specifically did not alter prior law regarding express
5 advocacy, and that the bill specifically did not apply a "no other reasonable meaning,"
6 test of the sort found in Furgatch or section 100.22(b) because it was too ambiguous and
7 vague:
8 We are concemed about being substantially too broad and too overreaching. The
9 concem that I have is it may have a chilling effect. The idea is that people are
10 designing ads, and they need to know with some certainty without inviting the
11 constitutional question that we have been discussing today as to whether or not
12 that language would affect them as whether or not they air those ads. That is why
13 we became cautious and pmdent in the Senate language that we included and did
14 not include Furgatch [the case upon which 100.22(b) is based] for that reason
15 because it invites ambiguity and vagueness as to whether or not these ads
16 ultimately would be aired or whether somebody would be willing to air them
17 because they are not sure how it would be viewed in terms of being unmistakable
18 and unambiguous. That is the concem that I have. 147 Cong. Rec. S2711 (March
19 22,2001).'
20
21 This legislative history shows that Congress did not alter the constmction given
22 the Act in Buckley and MCFL. Moreover, when Congress revises a statute, its decision to
23 leave certain sections unamended (as it did in McCain-Feingold) constitutes at least
24 acceptance, if not explicit endorsement, of the preexisting constmction and application of
25 tiie unamended terms. See Cottage Sav. Ass 'n v. Comm 'r, 499U.S. 554, 562 (1991).
' Senator McCain, the principle sponsor of the entire bill, was of the view that both Buckley and MCFL
limited the pertinent parts of the Act to express advocacy: "With respect to ads nm by non-candidates and
outside groups, however, the [Supreme] Court indicated that to avoid vagueness, federal election law
contribution limits and disclosure requirements should apply only ifthe ads contain 'express advocacy.'"
148 Cong. Rec. S2141 (March 20,2002). McCain-Feingold itself makes clear that independent
expenditures and electioneering communications cannot be the same thing. See 2 U.S.C. 434(f)(3)(B)(ii)
('The term 'electioneering communication' does not includea communication which constitutes an
expenditure or an independent expenditure under this Act.").
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1 A number of plaintiffs, including Senator Mitch McConnell, challenged McCain-
2 Feingold, and argued that the new electioneering communication provisions were
3 unconstitutional because the statute went beyond Buckley's "express advocacy"
4 limitation. In its initial response, the FEC said:
5 It is plain to see from [Buckley] that the freedom claimed by plaintiffs "to spend
6 as much as they want to promote candidate[s] and [their] view[s]" so long as they
7 "eschew expenditures that in express terms advocate the election or defeat" of
8 those candidates, arose from Buckley's "exacting interpretation of the stamtory
9 language" in FECA "necessary to avoid unconstitutional vagueness," and not as
10 an absolute guarantee that emanates directly from the First Amendment itself
11
12 See McConnell, No. 02-0582, Opposition Brief of Defendants at 59. The FEC also made
13 clear MCFL imposed the Buckley constmction on the post-Buckley legislative
14 amendments:
15 [A]s the Court explained [in MCFL], MCFL merely applied the same rationale
16 relied upon in Buckley - namely, curing vagueness in statutory language that
17 defined "expenditures" in terms of a speaker's "purpose to influence an election"
18 - and placed a "similar" express advocacy constmction on FECA 441b.
19
20 Id at 60.
21
22 And finally, the FEC was unequivocal that the First Circuit's decision in MRLC
23 tumed on the reach of the statute, not on constitutional absttact:
24 [T]he lower courts have repeatedly and accurately described Buckley's express
25 advocacy test as a saving constmction of a potentially unconstitutional statute, not
26 itself a standard of constitutional law In Right to Life of Duchess Cty.. Inc. v.
27 FEC, and Maine Right to Life. Inc. v. FEC, tiie courts rejected tiie FEC's
28 regulatory definition of express advocacy insofar as it includes communications
29 that "[w]hen taken as a whole... could only be interpreted by a reasonable
30 person as containing advocacy of the election or defeat of one or more clearly
31 identified candidates(s)." They based their decision on the conclusion that this
32 definition of express advocacy "is not authorized by FECA . . . as that statute has
33 been interpreted" by the Supreme Court.
34
35 Id at 61-62.
36
Exhibit B
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1 One member of the three judge panel agreed with the FEC. She reviewed the
2 cases that held section 100.22(b) unenforceable, and endorsed the result in those cases
3 because the FEC had no authority to redefine a statutory test that only Congress or the
4 Supreme Court could redefine. She said section 100.22(b) was "plagued with vague
5 terms" that place the speaker at the "mercy of the subjective intent of the listener."
6 McConnell v. FEC, Civ. No. 02-582, KoUar-Kotelly, J., memorandum op. at 377 (D.C
7 Cir. Filed May 1,2003).
8 On appeal, the Supreme Court agreed. The Court confirmed that "[t]he narrowing
9 constmction adopted in Buckley limited the Act's disclosure requirement to
10 communications expressly advocating the election or defeat of particular candidates."
11 McConnell v. FEC, 540 U.S. 93,102 (2003). The Court described Buckley's limiting
12 constmction of the otherwise vague and thus overbroad statute as "strict," and noted that
13 "the use or omission of 'magic words'... marked a bright statutory line separating
14 'express advocacy' from 'issue advocacy.'" Id. at 126 (emphasis added). Agreeing with
15 the FEC's arguments, the Court repeatedly emphasized that Buckley was "the product of
16 statutory interpretation rather than a constitutional command." Id. at 191-92 (emphasis
17 added) (noting that the Court in MCFL had previously "confirmed the understanding that
18 Buckley's express advocacy category was a product of statutory constmction."). As the
19 Court explained:
20 We concluded that the vagueness deficiencies could "be avoided only by reading
21 [the Act] as limited to communications that include explicit words of advocacy of
22 election or defeat of a candidate. We provided examples of words of express
23 advocacy, such as "vote for," "elect," "support," . . . "defeat," [and] "reject," and
24 those examples eventually gave rise to what is now known as tiie "magic words"
25 requirement.
26
Exhibit B
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1 Id. at 191. The Court characterized Buckley and MCFL as having drawn a "strict" line,
2 id. at 126, that was "an endpoint of statutory interpretation, not a first principle of
3 constitutional law" Id. at 190. In fact, the Court noted that "advertisers [can] easily
4 evade the line by eschewing the use of magic words." Id. at 193. And McConnell made
5 clear that the statutory endpoint remained unchanged: there are at least thirteen instances
6 where McConnell equated the term "express advocacy" with the so-called "magic words"
7 test.'' Tuming to the challenged electioneering communication provision, the Court
8 noted "that a statute that was neither vague nor overbroad would be required to toe the
9 same express advocacy line." Id. at 191. The Court found that it did not suffer from tiie
10 same vagueness that had plagued the definition of "expenditure," and upheld the
11 electioneering communication ban on its face, "to the extent it was the fimctional
12 equivalent of express advocacy." Id. at 206.
13 Although it upheld the new McCain-Feingold provisions, McConnell did not alter
14 the statutory "express advocacy" language; on the conttary, the Court maintained the
15 statutory constmction of Buckley and MCFL. Nonetiieless, the Commission began to
16 enforce section 100.22(b) nationally, for the following reasons. First, since McConnell
17 said that Buckley's so-called "magic word" constmction did not represent
18 "constitutionally-mandated line beyond which no regulation was possible," McConnell
19 was believed to have "essentially overmled past decisions invalidating section 100.22(b)
McConnell, 540 U.S. at 126 (2references), 127 (2references), 190 (2references), 192,193 (2
references), 193-94,216-17,219. The McConnell dissenting opinion similarly used "express advocacy" to
mean communications that contain the "magic words" of footnote 52 of Buckley. See 540 U.S. at 281,322.
The Commission's Office of General Counsel has in the past made this point. See MUR 5634 (Sierra
Club), GCR #2 at 10 ("McConnell did not involve a challenge to the express advocacy test or its
application, nor did the Court pmport to determine the precise contours of express advocacy to any greater
degree than it did in Buckley.)."
Exhibit B
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1 on constitutional grounds." Second, since the Court upheld the statutory definition of
2 "electioneering communication" "to the extent that the issue ads broadcast during the 30-
3 and 60-day periods preceding federal primary and general elections are the functional
4 equivalent of express advocacy," the Commission determined that section 100.22(b) was
5 a regulation that "fills fhe gaps" between where Buckley's "magic words" ends and
6 McConnell's "functional equivalent" begins. MUR 5024R (Council for Responsible
7 Govemment, Inc., et al.). General Counsel's Report #2 at 7-8.
8 A number of circuit courts by conttast have held that the express advocacy
9 requirement was not altered by McConnell, and remained a viable way to cure an
10 otherwise vague statute.*^See New Mexico Youth Organized v. Herrera, 611 F.3d 669
11 (lOtii Cir. 2010); North Carolina Right to Life, Inc. v. Leake, 525 F.3d 274 (4th Cir.
12 2008); Center for Individual Freedom v. Carmouche, 449 F.3d 655 (5tfi Cir. 2006), cert.
13 denied, 549 U.S. 1112 (2007); Anderson v. Spear, 356 F.3d 651 (6tii Cir. 2004), cert.
14 denied, Stumbo v. Anderson, 543 U.S. 956 (2004); Am. Civil Liberties Union ofNev. v.
15 Heller, 378 F.3d 979,985 (9tii Cir. 2004).^*
The Commission itself acknowledged that McConnell did not concern the express advocacy standard
announced in BucMey: '*McConnell did not involve a challenge to the express advocacy test or its
application, nor did tiie Court purport to determine the precise contours of express advocacy to any greater
degree than did the Court in Buckley " MUR 5024R (Council for Responsible Govemment), Factual &
Legal Analysis at 3.
Likewise, in Shays v. FEC (Shays III), 528 F.3d 914 (D.C. Cir. 2008) the D.C. Circuit repeatedly
equated express advocacy with a so-called "magic words" requirement. For example, the court said:
In Buckley v. Valeo, 424 U.S. 1 (1976), the Supreme Court, invoking constitutional
avoidance, construed FECA's limitation on expenditures to apply only to funding of
communications that "express[ly] . . . advocate the election or defeat of a clearly
identified candidate for federal office," i.e., those that contain phrases such as '"vote for,'
'elect,' 'support,* 'cast your ballot for,' 'Smith for Congress,' 'vote against,' 'defeat,' [or]
'reject.'" Thus, by avoiding these "magic words." organizations unable to make
"expenditures"such as corporations and unions could fimd so-called "issue ads" that
were "functionally identical" to campaign ads and just as effective.
Exhibit B
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1 In 2004, a suit was brought by Wisconsin Right to Life, challenging McCain-
2 Feingold's electioneering communication ban, and specifically alleging that certain ads it
3 wished to run that concemed judicial nominations were not the functional equivalent of
4 express advocacy. Several years later, the Court agreed that McCain-Feingold could not
5 constitutionally prohibit the advertisements at issue regarding judicial nominations. FEC
6 V. Wisconsin Right to Life, Inc., 551 U.S. 449 (2007). According to the Court, although
7 this statute was not vague, it was still overbroad, as it captured non-campaign
8 advertisements. As explained by Chief Justice Roberts, McConnell had limited the reach
9 of the statutory ban to the fimctional equivalent of express advocacy. The Chief Justice
10 fiirther explained that in addition to the statutory criteria defining electioneering
11 conununication, an advertisement came within the reach of the statute "only if the ad is
12 susceptible of no reasonable interpretation other than as an appeal to vote for or against a
13 specific candidate."/ic/. at 452.
14 In WRTL, the Court rejected the Commission's reading of McConnell. In
15 considering the matter, a number of Justices made clear that express advocacy still meant
16 express words of advocacy, a standard left unchanged by McConnell. For example, in his
17 concurring opinion, Justice Scalia stated this directly when describing what the Court did
Id. (citing BucMey, 424 U.S. at 43-44 n.52; McConnell, 540 U.S. at 126; and MCFL, 479U.S. at
249) (internal citations omitted) (emphasis added). See also, SpeechNow.org v. FEC, 599F.3d
686 (D.C. Cir. 2010) (upholding the requirement that SpeechNow.org file as a political committee,
but making clear that the reporting regime was triggered by Buckley's "magic words" standard,
stating:
'Express advocacy' is regulated more strictly by the FEC than so-called 'issue ads' or
other political advocacy that is not related to a specific campaign. In order to preserve
the FEC's regulations from invalidation for being too vague, the Supreme Court has
defined express advocacy as communications containing express 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 689, n.l.
Exhibit B
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1 in Buckley, and he furtiier added that he does not believe the Constimtion allows a
2 broader interpretation: "If a pennissible test short of the magic-words test existed,
3 Buckley would surely have adopted it." Id. at 495 (Scalia, J. concurring in part and
4 concurring the judgment). Chief Justice Roberts, in response to Justice Scalia, agreed
5 with Justice Scalia's premise that Buckley established a bright line express magic words
6 test, but instead explained that his appeal to vote test is not in conflict with Buckley.
1 According to the Chief Justice, the appeal to vote test serves a different purpose than the
8 express advocacy test, and because Buckley's so-called magic words requirement was a
9 product of statutory constmction, not a constitutional limit on regulation. Id. at 474, n.7.
10 Even Justice Souter, writing in dissent, characterized the express advocacy test as a
11 magic words standard by acknowledging that MCFL "held that the prohibition [on
12 corporate and union expenditures] applied 'only to expenditures for communications that
13 in express terms advocate the election or defeat of a clearly identified candidate for
14 federal office'" and that "'[E]xpress terms,' in tum, meant what had already become
15 known as 'magic words,' such as 'vote for,' 'elect,' 'support,' 'cast your ballot for,'
16 'Smith for Congress,' 'vote against,' 'defeat,' 'reject." Id. at 513 (intemal citations
17 omitted) (Souter, J. dissenting).
18 Although WRTL had rejected the Commission's expansive reading of McConnell
19 that had revived section 100.22(b), the Commission did not revisit its decision to enforce
20 the regulation. Instead, the Coinmission promulgated section 114.15, a two-part, eleven
21 factor balancing test that defined when an electioneering communication was
22 permissible. See Explanation and Justification for Electioneering Conununications
23 ("Electioneering Communications E&J"), 72 Fed. Reg. 72899(Dec. 26,2007). This was
Exhibit B
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1 to establish a safe harbor for certain speech, while subjecting other speech to a "multi-
2 step analysis for determining whether [electioneering communications] that do not
3 qualify for the safe harbor nevertheless qualify for the general exemption." Id. at 72902.
4 To avail oneself of the safe harbor, one's speech could not mention "any election,
5 candidacy, political party, opposing candidate, or voting by the general public," nor could
6 it take a position on the candidate's "character, qualifications, or fitness for office." Id. at
7 72903; see also 11 CFR 114.15(b)(l)-(3). Moreover, tiie advertisement could only
8 reference certain topics: "a legislative, executive, or judicial matter or issue," or propose
9 a "commercial ttansaction." Id. at 72903. In addition to only talking about the
10 government-approved subject matter, the advertisement had to "urge the public to take a
11 position and contact the candidate." Id.
12 For communications outside the safe harbor, the FEC created a multi-step analysis
13 to consider "whether the commimication includes any indicia of express advocacy and
14 whether the communication has an interpretation other than as an appeal-to-vote for or
15 against a clearly identified [fjederal candidate in order to determine whether, on balance,
16 the communication is susceptible of no reasonable interpretation other than as an appeal-
17 to-vote for or against a clearly identified [f|ederal candidate." 11 C.F.R.
18 114.15(c)(emphasis added).
19 The Commission did not revise section 100.22(b), because section 100.22(b) was
20 "informed by" its reading of WRTL as codified in section 114.15. The Commission
21 continued to tteat section 100.22(b) as the same sort of multi-factor balancing test now
22 found in section 114.15. In applying 100.22(b), the Conunission considered dozens and
23 dozens of factors, including, that an ad "lacks specific legislative focus;" that the ad is
Exhibit B
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1 "candidate centered;" touting or attacking a candidate's character, qualifications, and
2 accomplishments; failing to urge a specific action be taken by the elected official; asking
3 the viewer to "ask [the candidate] about his plans to bring our children back to [the state];
4 failing to include a phone number or contact information; questing a public official's
5 leadership potential; considering how the viewer would "reasonably interpret" the
6 advertisement; the proximity to the election; and "on balance." See generally MUR
7 5024R (Council for Responsible Govemment); MUR 5440 (The Media Fund); MURs
8 5511 & 5525 (Swift Boat Veterans and POWs for Tmtii); MUR 5631 (Sierra Club);
9 MURs 5910 & 5694 (Americans for Job Security); MUR 5988 (American Futture Fund);
10 MUR 5842 (Economic Freedom Fund); MURs 5831 & 5854 (Softer Voices/Lantem
11 Project); MUR 6346 (Comerstone Action).
12 Subsequently, Citizens United, a non-profit corporation organized under section
13 501(c) of the Intemal Revenue Code, sued the Conunission. It had produced a movie,
14 entitied "Hillary - The Movie," and wished to air the movie on pay-for-view cable
15 television. The Commission took the position that the movie was banned under its two-
16 part, eleven factor balancing test. The Court rejected section 114.15's two part, eleven
17 factor balancing test, and explained that:
18 "[t]his regulatory scheme may not be a prior re-sttaint on speech in the
19 strict sense of that term, for prospective speakers are not compelled by law
20 to seek an advisory opinion from the FEC before the speech takes place.
21 As a practical matter, however, given the complexity of the regulations
22 and the deference courts show to administtative determinations, a speaker
23 who wants to avoid threats of criminal liability and the heavy costs of
24 defending against FEC enforcement must ask a govemmental agency for
25 prior permission to speak. These onerous restrictions thus fimction as the
26 equivalent of prior resttaint by giving the FEC power analogous to
27 licensing laws implemented in 16th- and 17th-century England, laws and
Exhibit B
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1 governmental practices of the sort that the First Amendment was drawn to
2 prohibit."
3
4 Id. at 895-96 (intemal citations omitted).
5
6 The Court determined that the movie was an electioneering communication that was the
7 functional equivalent of express advocacy, since it "referred to Senator Clinton as
8 'Machiavellian,' asks whether she is 'the most qualified to hit the ground running if
9 elected President,' and the narrator reminds viewers that 'a vote for Hillary is a vote to
10 continue 20 years of a Bush or a Clinton in the White House.'" Id. at 890. Nonetheless,
11 the Court held that the movie could not be banned. The Court tumed back an as-applied
12 challenge to the McCain-Feingold electioneering communication reporting obligations.
13 A/, at 916.
14 Most recently, the United States District Court for the Eastem District of Virginia
15 held that two ads were the fimctional equivalent of express advocacy, and thus could
16 come within 11 CFR 100.22(b). This case is on appeal before the United States Court
17 of Appeals for the Fourth Circuit. See The Real Truth About Obama. Inc., v. FEC, Real
18 Truth About Obama v. FEC, 796 F. Supp. 2d 736, 749-50 (E.D. Va. 2011) appeal
19 docketed. No. 11-1760 (4tii Cir. argued Mar. 21,2012).
20 ***
21 The "Environmental Policy " Radio Advertisement
22 President Obama opposes the Government Litigation
23 Savings Act. This is a ttagedy for Wyoming ranchers and a
24 boon to Obama's environmentalist cronies. Obama cannot
25 be counted on to represent Wyoming values and voices as
26 President. This November, call your neigjibors. Call your
27 fiiends. Talk about ranching.
28
Exhibit B
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1 The "Environmental Policy" radio advertisement does not constitute express
2 advocacy. The advertisement does not contain the sort of words of express advocacy
3 listed in section 100.22(a). With respect to section 100.22(b), on its face, fhe regulation
4 requires that "[t]he electoral portion of the conununication [be] unmistakable,
5 unambiguous, and suggestive of only one meaning," i.e., "advocacy of the election or
6 defeat of one or more clearly identified candidate(s)." The advertisement does not
7 contain an "electoral portion," that is "unmistakable, unambiguous, and suggestive of
8 only one meaning."
9 While the communication does include a reference to November, that does not
10 constitute an electoral portion. Although most know that there is an election this
11 November, the regulation does not permit looking to extemal context and events of the
12 day when ascertaining the electoral portion. As the Ninth Circuit explained, "context
13 cannot supply a meaning that is incompatible with, or simply unrelated to, the clear
14 import of the words." FMrga/cA, 807 F.2d at 864. Instead, it must be "unmistakable,
15 unambiguous, and suggestive of only one meaning." Also, the communication explicitiy
16 instmcts the listener to "call your neighbors" and "[c]all your fiiends," and "[t]alk about
17 ranching." It does not urge the listener to vote, nor is there any other language that
18 causes "this November" to be an electoral portion that is unmistakable, unambiguous, and
19 suggestive of only one meaning. Thus, it is beyond the reach of 100.22(b).
20
21 The Financial Reform Radio and Newspaper Advertisements
22 Script: President Obama supported the financial bailout ofFaimie Mae and
23 Freddie Mac, permitting himself to become a puppet of the banking and bailout
24 industries. What kind of person supports bailouts at the expense of average
Exhibit B
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1 Americans? Not any kind we would vote for and neither should you. Call
2 President Obama and put his antics to an end.' ^
3
4 The "Financial Reform" advertisements, which Free Speech proposes to air on the
5 radio and run in newspapers, do not constitute express advocacy under 100.22(a). The
6 advertisement does not expressly say to vote against Obama. However, it does instmct
7 the listener or reader that a person who "supports bailouts at the expense of average
8 Americans" is "[n]ot any kind of person [Free Speech] would vote for and neither should
9 you." The advertisement claims that President Obama supported some financial bailouts,
10 which made him "a puppet of the banking and bailout industries." This sort of language
11 is similar to what the Supreme Court in MCFL deemed to be express advocacy.
12 However, there are some differences. First, the materials in MCFL included
13 language such as "EVEYTHING YOU NEED TO KNOW TO VOTE PRO-LIFE,"
14 included an exhortation to "VOTE PRO- LIFE," after identifying die candidates who
15 were the pro-life candidates. The Free Speech ad is not quite as explicit. It lacks some
16 of the language present in MCFL (such as "everything you need to know to vote pro-
17 life"), and it contains a non-electoral call to action ("Call President Obama and put his
18 antics to an end."). The language proposed by Free Speech is not as direct as the
19 language considered in MCFL. Here, the ad certainly says that the listener or reader
20 should not vote for anyone who "supports bailouts at the expense of average Americans."
21 But nowhere does the advertisement say that Obama's support of bailouts was at the
22 expense of average Americans. Instead, his support caused him to be a puppet of the
The script for the radio version ofthe Financial Reform advertisement is the same as the text of the print
version. The only difference between the two, besides the format, is the newspaper advertisement's
inclusion of a full-page picture of President Obama.
Exhibit B
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1 banking and bailout industries. Although it can be inferred that "at the expense of
2 average Americans" and "a puppet of the banking and bailout industries" are the same
3 thing, 100.22(a) demands more. Per MCFL, it must be "in effect an explicit directive."
4 MCFL, 479U.S. at 249. The advertisement is a step beyond that which was deemed
5 express advocacy in MCFL.
6 Assuming section 100.22(b) is enforceable, the application of that regulation
7 presents a closer call. The phrase "What kind of person supports bailouts at the expense
8 of average Americans? Not any kind we would vote for and neither should you" is an
9 electoral portion that is unambiguous, unmistakable, and suggestive of only one meaning:
10 vote against whoever supports bailouts at the expense of average Americans. Reasonable
11 minds could not differ as to the action urged: it certainly does not encourage any sort of
12 action other than voting. Given that Obama is the only person referenced by name in the
13 advertisement, a reasonable mind could assume or infer that Obama is the target, despite
14 the fact that Obama is never expressly indentified as a candidate.
15 However, the regulation then requires that the communication be read "as a
16 whole" and "with limited reference to extemal events, such as proximity to the election,"
17 and that it "could only be interpreted by a reasonable person as containing advocacy of
18 the election or defeat of one or more clearly identified candidates." When read as a
19 whole, there is language that is consistent with non-electoral issue advocacy, specifically
20 the last sentence: "Call President Obama and put his antics to an end."
21 Similarly, the regulation also instmcts that timing and proximity to an election are
22 to be considered. If, for example, this same advertisement was aired last year in
23 connection with the Virginia legislative races, no reasonable person would say that the ad
Exhibit B
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1 constitutes express advocacy of the defeat of President Obama. The electoral portion
2 would be referencing state candidates only. Per the request. Free Speech intended to run
3 the advertisement beginning April 1 through November 6 of this year. Although April 1
4 has passed, we assume Free Speech will begin to the proposed advertisement once this
5 Advisory Opinion has issued, as the request says they wish to speak "as soon as
6 possible." Certainly, given that the advertisement will run through November 6, it will
7 air near the general election. Equally clear, though, is that it will also run well before an
8 election, due to its expansive run in excess of six months. This expanded run supports
9 the conclusion that the advertisement is not express advocacy; otherwise. Free Speech
10 will endure the odd result of running an advertisement in the near future, just before the
11 Wyoming Democratic caucus (which migiht make it express advocacy), continuing to run
12 it after the caucus (which migiht make it not express advocacy), and througih the general
13 election (which might make it express advocacy again). Since the Conunission declined
14 to adopt any sort of bright-line timing requirement for section 100.22(b), it cannot now
15 say this advertisement constitutes express advocacy due to timing or proximity to an
16 election.
17 The " "Health Care Crisis " Radio and Newspaper Advertisements
18
19 Script: President Obama supports socialized medicine, but
20 socialized medicine kills millions of people worldwide.
21 Even as Americans disapproved of ObamaCare, he pushed
22 ahead to make socialized medicine a reality. Put an end to
23 the bmtality and say no to socialized medicine in the
24 United States.'^
Like the script for the radio and print versions of the "Financial Reform" advertisements, the script for
the two versions of the "Health Care Crisis" advertisements is the same. The only difference between the
two advertisements, besides the format, is the newspaper advertisement's inclusion of a "[f|ull picture of a
family picture torn in half."
Exhibit B
AO 2012-11
Page 29
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1
2 The "Health Care Crisis" advertisements, which Free Speech proposes to air on
3 the radio and run in newspapers, do not constitute express advocacy. The advertisement
4 does not contain the sort of words of express advocacy listed in section 100.22(a). Nor
5 does the advertisement contain an "electoral portion" that is "unmistakable,
6 unambiguous, and suggestive of only one meaning." Instead, the advertisements criticize
7 President Obama regarding health care policy, provide Free Speech's views on the issue
8 ("socialized medicine kills millions of people worldwide"), and conclude with a policy-
9 related call to action. It is beyond the reach of 100.22(b).
10
11 The "Gun Control" Facebook Advertisement
12 (Picture of handgun, 110 pixels wide by 80 pixels tall)
13 (Titie: Stand Against Gun Conttol)
14 Obama supports gun conttol. Don't tmst him. Support
15 Wyoming state candidates who will protect your gun rights.
16
17 The "Gun Conttol" advertisements, which Free Speech proposes to publicize on
18 Facebook, do not constitute express advocacy. The advertisement does not contain the
19 sort of words of express advocacy listed in section 100.22(a). Instead, it criticizes
20 President Obama's support of gun conttol and exhorts viewers to "[s]upport Wyoming
21 state candidates." Since this advertisement will be publicized on Facebook, it can be
22 viewed by people in jurisdictions where 100.22(b) has been declared unenforceable.
23 Even if the Commission were to attempt to enforce section 100.22(b) in such
24 circumstances, this advertisement lacks an electoral portion, and thus is beyond the reach
25 of 100.22(b).
26
Exhibit B
20
21
AO 2012-11
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The "Environmental Policy " Facebook Advertisement
(Picture of a Wyoming ranch, 110 pixels wide by 80 pixels
tall)
(Titie: Leam About Ranching)
Obama's policies are a ttagedy for Wyoming ranchers, and
he does not represent our values. This November, leam
about ranching.
The "Environmental Policy" Facebook advertisement does not constitute express
10 advocacy. The advertisement does not contain the sort of words of express advocacy
11 listed in section 100.22(a). Nor does the advertisement contain an "electoral portion" that
12 is "unmistakable, unambiguous, and suggestive of only one meaning." While the
13 communication does include a reference to November, that does not constitute an
14 electoral portion. Certainly, there is an election this November. But the regulation does
15 not permit looking to extemal context and events of the day when ascertaining the
16 electoral portion. Instead, it must "unmistakable, unambiguous, and suggestive of onlv
17 one meaning." 11 C.F.R. 100.22(b) (emphasis added). Regardless, the communication
18 explicitly instmcts the listener to "leam about ranching." It does not urge the listener to
19 vote. Thus, it is beyond tiie reach of 100.22(b).
The Gun Control Television Advertisement
Audio:
Guns save lives.
That's why all Americans
should seriously doubt the
qualifications of Obama, an
Video:
Newspaper clippings with
headlines describing self-
defense with firearms fade in,
piling up one atop another.
Clippings dissolve to a picture
of President Obama, and one
newspaper headline below
Exhibit B
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ardent supporter of gun
conttol.
This fall, get enraged, get
engaged, and get educated.
And support Wyoming state
candidates who will protect
your gun rigjhts.
him: "President Obama
defends attomey general
regarding ATF tactics (LA
Times, Oct. 6,2011)"
Dissolves to a picture of the
Wyoming state flag, panning
down to the Wyoming Capitol
Building
1
2 The "Gun Conttol" television advertisement does not constitute express advocacy.
3 The advertisement does not contain the sort of words of express advocacy of a federal
4 candidate listed in section 100.22(a). Although the urges the viewer to "support
5 Wyoming state candidates," the only person specifically named is President Obama, who
6 is not a Wyoming state candidate. The advertisement does contain an electoral portion
7 that is unmistakable, unambiguous, and suggestive of only one meaning: support
8 Wyoming state candidates who will protect gun rights. That the accompanying video
9 includes the Wyoming state fiag and the Wyoming Capitol Building leaves the meaning
10 free of doubt. But reasonable minds could differ as to whether it encourages actions to
11 elect or defeat one or more clearly identified candidates. Although the advertisement
12 references President Obama, he is never identified as a candidate, but instead is criticized
13 for his views of gun rigihts, and his qualifications regarding his defense of the Attomey
14 General regarding ATF tactics. Thus, the advertisement is beyond tiie reach of
15 100.22(b).
16
Exhibit B
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The "Ethics " Television Advertisement
Audio:
Who is President Obama?
He preaches the importance of
high taxes to balance the
budget, but nominates political
elites who haven't paid theirs.
He talks about budget and tax
priorities, but passes a blind
eye to nominees who don't
contribute their fair share.
Call President Obama and tell
him you don't approve of his
taxing behavior.
Video:
Picture of President Obama
shaking hands with Hugo
Chavez.
Fade to another picture of
Obama giving State of the
Union, superimposed "Obama
Aims $1.4 Trillion Tax
Increase at Higihest Eamers
(San Francisco Chronicle, Feb.
14,2011)"
Cut to picture on left side of
screen of Secretary of Treasury
Timothy Geithner giving
testimony, superimposed
"Geithner apologizes for not
paying taxes (CBS News, Feb.
18,2009)"
Picture fades in on right side of
screen of Tom Daschle,
superimposed 'Tax Woes
Derail Daschle's Bid for
Healtii Chief (NPR, Feb. 3,
2009)"
Fade to picture of President
Obama and Michelle Obama
enjoying themselves in
Hawaii.
The "Ethics" television advertisement does not constitute express advocacy.
The advertisement does not contain the sort of words of express advocacy listed in
section 100.22(a). Nor does the advertisement contain an "electoral portion" that is
"unmistakable, unambiguous, and suggestive of only one meaning." Instead, the
advertisements criticizes President Obama based on statements about his "budget and tax
Exhibit B
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1 priorities" and his nominees' asserted lack of compliance with their tax obligations. The
2 advertisement then exhorts viewers to "[c]all President Obama and tell him you don't
3 approve of his taxing behavior." It is beyond the reach of 100.22(b).
4
5 The Budget Reform Television Advertisement
AUDIO:
Congresswoman Lummis
supported the Repeal
Amendment, which would
have restored fiscal sanity to
our federal debt.
Congresswoman Lummis is
brave in standing against the
political elite and deserves
your support. Make your
voice heard.
Do everything you can to
support Congresswoman
Lummis this fall and work
toward fiscal sanity.
Video:
Picture of Representative
Lummis, superimposed "Tea
Party Pushes Amendment to
Veto Congress (AOL News,
Dec. 1,2010)"
Small videos of Representative
Lummis fade in, speaking on
news programs, meeting with
people, etc.
Wyoming fiag fades in the
background, retuming to
original picture of Rep.
Lummis.
6
7 The "Budget Reform" television advertisement does not constitute express
8 advocacy. Although the advertisement does state "support Congresswoman Lummis,"
9 the advertisement does not come within the reach of section 100.22(a), since the support
10 sought is policy-driven, not electoral (i. e., support her "this fall and work toward fiscal
11 sanity"). No election is explicitiy referenced, nor is Lummis ever identified as a
12 candidate. Similarly, the advertisement lacks an electoral portion that is unmistakable,
13 unambiguous, and suggestive of only one meaning. Even if "supporting Congresswoman
14 Lummis in the fall" can somehow be deemed an electoral portion (because elections
Exhibit B
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1 happen in the fall), reasonable minds could differ as to "whether it encourages actions to
2 elect or defeat one or more clearly identified candidate(s) or encourages some other kind
of action." The arguable electoral portion could also be read to encourage support for
Lummis' legislative agenda. After all, the advertisement claims she supported the Repeal
Amendment, which it claims "would have restored fiscal sanity to our federal debt." This
ties into the final line of the advertisement, which also references financial sanity.
The Educated Voter Votes on Principle Television Advertisement
Audio:
Across America, millions of
citizens remain uninformed
about the tmth of President
Obama.
Obama, a President who palled
around with Bill Ayers.
Obama, a President who was
cozy witti ACORN.
Obama, a President destmctive
of our natural rigihts.
Real voters vote on principle.
Remember this nation's
principles.
Video:
Picture of President Obama
shaking hands with Hugo
Chavez.
Picture of Bill Ayers in
Weather Underground days,
superimposed "Bill Ayers
Dishes on Hosting a
Fundraiser for Barack Obama
(Big Govemment, Nov. 29,
2011)."
"House votes to Strip Funding
for ACORN (Fox News, Sept.
17,2009)"
Video of an ATF raid, fade to
a video of TSA scanning
individuals in line for airport.
Fades to still shot of the Bill of
Rights, superimposed
"Remember this nation's
principles."
Exhibit B
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1
2 The "Educated Voter Votes on Principle" advertisement does not constitute
3 express advocacy. Although the advertisement mentions "real voters," that "vote on
4 principle," the advertisement does not expressly state which candidate such voters ought
5 to vote for. Thus, it is beyond the reach of 100.22(a). The advertisement does have an
6 electoral portion that is unmistakable, unambiguous, and suggestive of only one meaning:
7 "Real voters vote on principle." But reasonable minds could differ as to whether this
8 electoral portion "encourages actions to elect or defeat one or more clearly identified
9 candidate(s)" or "encourages some other kind of action." On one hand, the advertisement
10 infers that since the advertisement could be read as attacking Obama, real voters ougiht to
11 vote against Obama. But this is far from clear. It is not unreasonable to think that Bill
12 Ayers and ACORN would not see their association with President Obama as something
13 bad. On the conttary, from that perspective, real voters might infer a message to vote for
14 Obama. Both perspectives require inference, reference to context, and reliance on
15 subjective intent and effect, which is not permitted by the regulation when ascertaining
16 fhe clarity of the electoral portion. Thus, the advertisement is beyond the reach of
17 100.22(b).
18
19 Question 2. Will Free Speech's proposed donation requests be solicitations of
20 contributions?
21 No. For the reasons stated below, none of the proposed donation requests will
22 constitute solicitations of contributions.
Exhibit B
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1 The Act defines the term "contribution" to include "any gift, subscription, loan,
2 advance, or deposit of money or anything of value made by any person for the purpose of
3 influencing any election for Federal office." 2 U.S.C 431 (8)(A)(i); see also 11 CFR
4 100.52(a). The Act requires "any person" who "solicits any contribution througih any
5 broadcasting station, newspaper, magazine, outdoor advertising facility, mailing, or any
6 other type of general public political advertising" to include a specified disclaimer in the
7 solicitation. 2 U.S.C. 441d(a); see also 11 CFR 110.11(a)(3).
8 In Buckley, the Court narrowed the statutory term "contribution" to encompass
9 only (1) donations to candidates, political parties, or campaign committees; (2)
10 expenditures made in coordination with a candidate or campaign committee; (3)
11 donations given to other persons or organizations but "earmarked for political purposes."
12 Buckley at 24, nt. 24,78. In order to avoid the "hazards of uncertainty" regarding the
13 meaning of "earmarked for political purposes," the United States Court of Appeals for the
14 Second Circuit interpreted the phrase to include only donations "that will be converted to
15 expenditures subject to regulation under FECA." FEC v. Survival Education Fund. Inc.,
16 65 F.3d 285,295 (2d Cir. 1995).
17 The pertinent issue in Survival Education Fund concemed a pre-McCain-Feingold
18 law, which required persons, including political committees, to include certain
19 disclaimers on (1) communications that contained express advocacy, and (2) solicitations.
20 Although the Second Circuit rejected much of the Conunission's case, it did hold that a
21 request for fiinds constituted a solicitation, and thus required a disclaimer. Id. at 298.
22 Specifically, the court said that a written solicitation indicating that money received in
23 response to a solicitation will be spent to elect or defeat a Federal candidate must carry
Exhibit B
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1 disclaimers informing the public of whether the organization is coordinating with a
2 candidate or his agents. Id. at 295. Although fhe court did not limit its determination to a
3 finding of express advocacy, it stated that a solicitation "may still fall within the reach of
4 441 d(a) if it contains solicitations clearly indicating that the contributions will be targeted
5 to the election or defeat of a clearly identified candidate for federal office." Id. In
6 addressing Survival Education Fund's concems that "[b]ecause [fhey] in some sense use
7 all contributions 'for political purposes, they contend that they will be at a loss to know
8 when a solicitation triggers FECA disclosure requirements and subjects them to a
9 potential civil penalty," the court stated that "[t]he only contributions 'earmarked for
10 political purposes' with which the Buckley Court appears to have been concemed are
11 those that will be converted to expenditures subject to regulation under FECA. Thus,
12 Buckley's definition of independent expenditures that are properly within the purview of
13 FECA provides a limiting principle for the definition of contributions in 431 (8)(A)(i),
14 as applied to groups acting independently of any candidate or his agents and which are
15 not 'political conunittees' under FECA." Id. at 294-95. The court also said a request for
16 funds is a "solicitation" if it "leaves no doubt that the funds contributed would be used to
17 advocate [a candidate's election or] defeat at the polls, not simply to criticize his policies
18 during the election year." Id. at 295.
19 The material at issue in SEF was overwhelmingly electoral in nature. It included
20 numerous electoral statements (e.g., "Vote for Peace in '84"); allusions to the
21 consequences of the 1984 presidential election (e.g., "Americans who will be voting in
22 November need to know fhe facts about how four more years of Reagan leadership will
23 affect our nation and the world."); and the group's intended use of the money received in
Exhibit B
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1 response to the communication (e.g., "your special election year contribution will help us
2 communicate your views to hundreds of thousands of members of the voting public,
3 letting them know why Ronald Reagan and his anti-people policies must be stopped.").
4 Id. at 288-89. The court held that these types of statements left "no doubt that the funds
5 contributed would be used to advocate President Reagan's defeat at the polls, not simply
6 to criticize his policies during the election year." Id. at 295.
7 McCain-Feingold changed the law regarding disclaimers. No longer were they
8 required only on solicitations and express advocacy; political conunittees were now
9 required to place certain disclaimers on virtually all public conmiunications. Thus, the
10 significance of SEF's holding - which determined when a request for funds constimted a
11 solicitation and thus required a disclaimer - ought to have diminished. But almost ten
12 years after it was decided, the Commission elected to use SEF as a basis to require groups
13 to register and report as political conunittees, thus limiting what such groups could raise
14 and spend, and requiring them to undertake the reporting requirements attendant to being
15 a political committee. The Supreme Court has described such obligations as burdensome.
16 See Citizens United, 130 S. Ct. at 897 ("PACs are burdensome alternatives; they are
17 expensive to administer and subject to extensive regulations.").
18 The Commission codified this view via mlemaking, and promulgated 11 C.F.R.
19 100.57. Under that mle (which merely codified fhe Commission's reading of SEF), a
20 covered non-profit had to tteat as "contributions" (meaning funds subject to limits,
21 prohibitions, and reporting requirements of the Act, including filing as a political
22 committee) all fimds given in response to solicitations indicating that "any portion" of the
23 fimds received will be used to support or oppose the election of a federal candidate. 11
Exhibit B
AO 2012-11
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1 CF.R. 100.57(a)-(b)(l) (emphasis added). If tiie conununication indicated tiiat tiie
2 fimds will support or oppose both a federal and non-federal candidate, then at least 50%
3 of those funds had to be treated as federally-regulated funds. See id. 100.57(b)(2).
4 The D.C. Circuit held that this mle was both unconstitutional and beyond the statute, as it
5 required covered non-profits to tteat certain donations as federal money subject to the Act
6 limitations, prohibitions, and reporting requirements even if those donations are not
7 actually made "for the purpose of influencing" federal elections. EMILY's List v. FEC
8 581 F.3d 1,17-18(D.C. Cir. 2009). The Conunission has since repealed section 100.57,
9 see Funds Received in Response to Solicitations; Allocation of Expenses by Separate
10 Segregated Funds and Nonconnected Committees, 75 Fed. Reg. 13,223 (2010), and has
11 not announced any desire to revisit the issue. See Brief for the Respondents at 5, The
12 Real Truth About Obama. Inc.. v. FEC, 130 S. Ct. 2371 (U.S. 2010) (No. 09-724) ("On
13 September 18,2009, tiie D.C Circuit declared tiiat regulation [100.57] unlawful.
14 EMILY'S List v. FEC, 581 F.3d 1,17-18(D.CCir. 2009). The Commission has
15 accordingly announced that the regulation 'will not be enforced."').
16
1*7 ***
18 A. The" War Chest" Donation Request
19
20 Friends of freedom celebrated when the Supreme Court
21 decided Citizens United. Now, more than ever, we can
22 make the most effective use of your donations this coming
23 fall. Donations given to Free Speech are funds spent on
24 beating back the Obama agenda. Beating back Obama in
25 the newspapers, on the airways, and against his $1 billion
26 war chest.
27
Exhibit B
AO 2012-11
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1 This donation request does not require a disclaimer under 2 U.S.C. 441 d(a). The
2 donation request indicates that the funds requested will be "spent on beating back the
3 Obama agenda. Beating back Obama in the newspapers, on the airwaves, and against his
4 $1 billion war chest." While the request does mention "this coming fall," "[b]eating back
5 Obama," and "his $1 billion war chest," such language does not "clearly indicat[e] that
6 the contributions will be targeted to the election or defeat of a clearly identified candidate
7 for federal office." SEF, 65 F.3d at 295. First, "tiiis coming fall" is not inherentiy
8 electoral. In fact, the request itself provides the meaning for this phrase: that Free Speech
9 will use the donations raised this fall to beat back the Obama agenda. The other language
10 appears in a sentence fragment that expands upon the previous sentence regarding
11 "beating back the Obama agenda." Moreover, Obama is never identified as a candidate,
12 and the phrase "his $1 billon war chest" is not inherently electoral, as it presumably
13 includes funds raised by the Democratic Party generally, fimds that can be spend in a
14 variety of ways. Such language is a far cry from the language present in Survival
15 Education Fund, such as: "Vote for Peace in '84"; "Americans who will be voting in
16 November need to know the facts about how four more years of Reagan leadership will
17 affect our nation and the world"; "your special election year contribution will help us
18 conununicate your views to hundreds of thousands of members of the voting public,
19 letting them know why Ronald Reagan and his anti-people policies must be stopped."
20 Since this donation request does not solicit contributions under the Act, and Free
21 Speech does not propose spending any funds on "expenditures" under the Act, fimds
Exhibit B
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1 raised will not be subject to the limitations, prohibitions or reporting requirements of the
2 Act.'^
3 B. The "Strategic Speech"Donation Request
4 This fall, 23 Democrat incumbents are up for election in the
5 U.S. Senate. Seven have already decided to retire, but
6 some, like John Tester of Montana, haven't gotten the
7 message. With your donation, we'll sttategically speak out
8 against the expansion of govemment-run healthcare and so-
9 called 'clean energy' boondoggles like Solyndra, which
10 Senators like Tester fiilly support. It's time to retire failed
11 socialist policies.
12
13 This donation request does not require a disclaimer under 2 U.S.C. 441d(a). The
14 donation request clearly indicates how the fimds requested will be spent: by "sttategically
15 speak[ing] out against the expansion of government-run healthcare an so-called 'clean
16 energy' boondoggles like Solyndra," which the request claims Senators like Tester
17 support. This point is emphasized by the concluding line, which makes clear it is
18 discussing policy: "It's time to retire failed socialist policies." The donation request lacks
19 language "clearly indicating that the contributions will be targeted to the election or
20 defeat of a clearly identified candidate for federal office." SEF, 65 F.3d at 295. The
21 language used in this donation request is not at all like that present in Survival Education
In the past, the Commission may have considered fhis sort of donation request to not only require a
disclaimer, but to presumptively require that all funds raised in response to tiierequest to be subject to the
limitations, prohibitions and reporting requirements ofthe Act. See, e.g., MUR 5487 (Progress for America
Voter Fund), Conciliation Agreement ^ 22,26 (concluding that direct mail pieces using the phrase "help
us promote President Bush's agenda in Pennsylvania with the greatest possible strength between now and
November 1st" solicited contributions because they supposedly "clearly indicate that the fimds received
would be targeted to the election of President Bush"). The legal theory upon which such determinations
were based was rejected in EMILY's List v. FEC, as being unconstitutional and beyond the Commission's
statutory authority. Per the holding ofthe D.C. Circuit, which the Commission has already accepted as
having nation-wide effect, such matters are no longer good law. See, i.e.., MUR 5365 (Club for Growth);
MUR 5403 (Americans Coming Together); MUR 5440 (The Media Fund); MUR 5487 (Progress for
America Voter Fund); MUR 5511 (Swiflboat Veterans and POWs for Truth); MUR 5542 (Texans for
Truth); MUR 5568 (Empower Illinois Media Fund); MUR 5753 (League of Conservation Voters 527);
MUR 5754 (MoveOn.org Voter Fund).
Exhibit B
AO 2012-11
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1 Fund'. "Vote for Peace in '84"; "Americans who will be voting in November need to
2 know the facts about how four more years of Reagan leadership will affect our nation and
3 the world"; "your special election year contribution will help us communicate your views
4 to hundreds of thousands of members of the voting public, letting them know why
5 Ronald Reagan and his anti-people policies must be stopped."
6 Since this donation request does not solicit contributions under the Act, and Free
7 Speech does not propose spending any fimds on "expenditures" under the Act, fimds
8 raised will not be subject to the limitations, prohibitions or reporting requirements of the
9 Act.
10 C The "Checking Boxes" Donation Request
11
12 'Leading from behind,' President Obama takes advice from
13 socialist staffers, usually choosing from a checklist of
14 oppressive, debt-driven policies without even considering
15 freedom-based and fiscally-conscious altematives.
16 Checking the right box on the November ballot is
17 important, but like Obama's memos it's just not enough.
18 Take the lead in making the message of Free Speech heard:
19 your donation will inform real American leadership.
20
21 This donation request does not require a disclaimer under 2 U.S.C. 441d(a). The
22 donation request clearly indicates how the funds requested will be spent: "making the
23 message of Free Speech heard" by "inform[ing] real American leadership." Although the
24 donation request includes the phrase "[c]hecking the right box on the November ballot is
25 important," neither that phrase nor the sentence of which it is a part, solicits funds. It
26 does not in any way indicate that fimds will be used to target fhe election or defeat of a
27 clearly identified candidate; on the conttary, it can be read as stating that funds will be
28 spent on things unrelated to "checking the right box on the November ballot," such as
Exhibit B
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1 Free Speech's "message" to "inform real American leadership." Other language in the
2 donation request criticizes Obama's policy choices. The donation request lacks language
3 "clearly indicating that the contributions will be targeted to the election or defeat of a
4 clearly identified candidate for federal office." 5!!F, 65 F.3d at 295. The language used
5 in this donation request is not at all like that present in Survival Education Fund: "Vote
6 for Peace in '84"; "Americans who will be voting in November need to know the facts
7 about how four more years of Reagan leadership will affect our nation and the world";
8 "your special election year contribution will help us communicate your views to hundreds
9 of thousands of members of the voting public, letting them know why Ronald Reagan
10 and his anti-people policies must be stopped."
11 Since this donation request does not solicit contributions under the Act, and Free
12 Speech does not propose spending any fimds on "expenditures" under the Act, funds
13 raised will not be subject to the limitations, prohibitions or reporting requirements of the
14 Act.
15 D. The "Make Them Listen" Donation Request
16
17 In 2010, the Tea Party movement ushered in an historic
18 number of liberty-fiiendly legislators. But President
19 Obama and his pals in Congress didn't get the message:
20 Stop the bailouts. No socialized healthcare. End
21 oppressive taxes. But we won't be silenced. Let's win big
22 this fall. Donate to Free Speech today.
23
24 This donation request does not require a disclaimer under 2 U.S.C. 441 d(a). The
25 request arguably references an election, since it claims that the 2010 election elected a
26 "number of liberty-fnendly legislators." But the request does not clearly reference a
27 future election. Although it does state, "[l]et's win big this fall," this is not clearly a
Exhibit B
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1 reference to an upcoming election, let alone a clear statement that any fimds raised would
2 be used to target the election or defeat of a clearly identified candidate. Even when read
3 in the context of the rest of the donation request, winning in the fall is not "clearly
4 indicating that the contributions will be targeted to the election or defeat of a clearly
5 identified candidate for federal office." SEF, 65 F.3d at 295.
6 The request states that neither Obama nor "his pals" in Congress got the message
7 the people sent in 2010: that "bailouts" need to stop, "socialized healthcare" is
8 unacceptable, and "oppressive taxes" need to come to an end. The request can be read as
9 then saying that although Obama and "his pals" in Congress still have not heard this
10 message. Free Speech "will not be silenced," and they will continue to advocate in favor
11 of these policy choices. They will continue to do so "this fall," and they hope to "win
12 big" then - which could be read to mean legislative votes in the Congress regarding
13 ending "bailouts," "socialized healthcare" and "oppressive taxes." Ultimately, the
14 donation request is not sufficiently clear. ^ ^
15 But even if one were to presume that the donation request solicits contributions
16 under the Act (e.g., "win big this fall" references the fall election, and that somehow
17 makes clear that fimds raised were to be spend on "expenditures"), the donation request
18 would, at most, require a disclaimer under 2 U.S.C. 441d. That determination would not
19 mean that all fimds raised in response to the request would be subject to the limitations,
20 prohibitions, or reporting obligations of tiie Act. On the conttary, the request asks for
For example, if the donation request said "let's win big this fall at the ballot box," or "let's win big this
fall on election day," that would bring the request much closer to coming within the reach of the Act as it
was construed by the Second Circuit in SEF.
Exhibit B
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1 fimds to support Free Speech's effort to "not be silenced" and to send " a message"
2 regarding bailouts, healthcare and taxes. In ligiht of that non-electoral language, it cannot
3 be simply presumed that all funds raised by the donation request would be subject to the
4 Act's limitations, prohibitions, or reporting obligations. The Conimission lacks the
5 statutory authority to employ such a presumption, or to presume that a certain amoimt of
6 the funds received would be subject to fhe limitations, prohibitions and reporting
7 obligations oftiie Act. See EMILY's List, 581 F.3d at 21 (holding tiiat tiie stattite does
8 not permit the FEC to "tteat as hard-money 'contributions' all fimds given in response to
9 solicitations indicating that 'any portion' of the fimds received will be used to support or
10 oppose the election of a federal candidate... [t]he stamtory defect in the mle is that,
11 depending on the particular solicitation at issue, it requires covered non-profits to tteat as
12 hard money certain donations that are not actually made 'for the purpose of influencing'
13 federal elections."); see also Funds Received in Response to Solicitations; Allocation of
14 Expenses by Separate Segregated Funds and Nonconnected Committees, 75 Fed. Reg.
15 13,223 (2010).'^
16 Similarly, even assuming that the Commission read the donation request as
17 "clearly indicating that the contributions will be targeted to the election or defeat of a
18 clearly identified candidate," the Commission lacks any sort of regulation or other public
19 guidance on how Free Speech should determine what portion of funds received would be
20 subject to the limitations, prohibitions or reporting obligations of the Act. The
21 Commission declines to impose a new mle by way of the advisory opinion process. See
All prior Commission matters that relied upon such a theory were invalidated by EMILY's List, and
abandoned by the Commission when it removed section 100.57 from its regulations, and chose to give
EMILY's List nationwide effect.
Exhibit B
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1 2 U.S.C 437f(b) ("Any mle of law which is not stated in tiiis Act or in chapter 95 or
2 chapter 96 of title 26 may be initially proposed by the Commission only as a mle or
3 regulation pursuant to procedures established in section 438(d) of this title. No opinion
4 of an advisory nature may be issued by fhe Commission or any of its employees except in
5 accordance with the provisions of this section."); see also U.S. v. Magnesium Corp. of
6 Am. LLC, 616 F.3d 1129,1139 (10* Cir. 2010) ("[E]ven if Congress repealed tiie
7 [Administtative Procedures Act] tomorrow, the Due Process clause of the Fifth and
8 Fourteenth Amendments would still prohibit the imposition of penalties without fair
9 notice.... And it pertains when an agency advances a novel interpretation of its own
10 regulations in the course of a civil enforcement action. If an agency could punish a
11 regulated party for following the agency's own interpretation of its own ambiguous
12 regulation, after all, 'the practice of administtative law would come to resemble 'Russian
13 Roulette.'") (intemal citations omitted).
14
15 Question 3. Will the activities described in this advisory opinion request require Free
16 Speech to register and report to the Commission as a political committee?
17 No, the activities described in this advisory opinion request will not require Free
18 Speech to register and report to the Commission as a political committee.
19 The Act and Commission regulations define a "political committee" as "any
20 committee, club, association or other group of persons which receives contributions
21 aggregating in excess of $ 1,000 during a calendar year or which makes expenditures
22 aggregating in excess of $1,000 during a calendar year." 2 U.S.C. 431(4)(A); 11 CFR
23 100.5. The Supreme Court constmed the term "political committee" to encompass only
Exhibit B
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Draft
1 organizations that are "under the conttol of a candidate or the major purpose of which is
2 tiie nomination or election of a candidate." Buckley v. Valeo, 424 U.S. 1, 79 (1976).
3 Some courts have held that the Buckley major purpose test was the product of statutory
4 interpretation, see National Organization for Marriage v. McKee, 649F.3d 34, 65 (1st
5 Cir. 2011), cert, denied (Feb. 27,2012); Human Life of Washington. Inc., v. Brumsickle,
6 624 F.3d 990 (9tii Cir. 2010), cert, denied (Feb. 22,2011), and tiius would constittite tiie
7 end-point of the Commission's statutory authority. See Political Committee Status,
8 Supplemental Explanation and Justification ("2007 Political Committee Status
9 Supplemental E&J"), 72 Fed. Reg. 5595, 5602 (Feb. 7,2007) ("The major purpose
10 doctrine did not supplant the statutory 'contribution' and 'expenditure' triggers for
11 political committee status, rather it operates to limit the reach of the statute in certain
12 circumstances.") (emphasis added).
13 The Commission has not defined or clarified the major purpose test through
14 mlemaking, and instead has opted to consider it on a case-by-case basis. Id. at 5596. In
15 the past, the Commission has claimed that a group needed to file as a political committee
16 if its major purpose was merely "partisan politics" or "electoral activity." Such
17 arguments were rejected in court. See FEC v. GOPAC. Inc., 917 F. Supp. 851, 861
18 (1996) ("the terms 'partisan electoral politics' and 'electioneering' raise virtually the
19 same vagueness concems as the language 'influencing any election for Federal office,'
20 the raw application of which the Buckley Court determined would impermissibly impinge
21 on First Amendment values."). Despite the rejection of such arguments, the Conunission
22 nonetheless continued to use such tests, and other variants of the major purpose test that
23 go beyond that articulated in Buckley, such as "influencing elections." And the
Exhibit B
AO 2012-11
Page 48
Draft
1 Commission has at times claimed that dicta from MCFL is a separate, more expansive
2 test than was articulated in Buckley (if a group's "independent spending become[s] so
3 extensive that the organization would be classified as a political committee."). MCFL,
4 479U.S. at 262. ^ See MUR 5753 (League of Conservation Voters), FGCR at 5 and
5 MUR 5754 (MoveC)n.org Voter Fund), FGCR at 5 ("influence tiie outcome of tiie 2004
6 elections"); MUR 5751 (Leadership Forum), FGCR at 4 ("a focus on influencing the
7 2004 presidential elections"); MUR MURs 5910 & 5694 (Americans for Job Security),
8 FGCR at 15 ("influence a federal election"); MURs 5977 & 6005 (American Leadership
9 Project), FGCR at 11 ("influence the election of the 2008 presidential primary election");
10 and MUR 6082 (Majority Action), FGCR at 13 ("influence tiie 2006 mid-term
11 elections"). In other cases, some declared that the proper test was "campaign activity," a
12 significantly broader test than that one articulated in Buckley (i. e., nomination or election
13 or of a federal candidate). MUR 5365 (Club for Growtii), GCR #2 at 3, 5 ("tiie vast
14 majority of CFG's disbursements are for federal campaign activity" and concluding CFG
15 "has the major purpose of campaign activity."); MUR 5403 (Americans Coming
16 Togetiier), FGCR at 8 ("sufficient spending on campaign activity"); MURs 5511 & 5525
17 (Swift Boat Veterans and POWs for Tmtii), Conciliation Agreement at \6 ("only
18 organizations whose major purpose is campaign activity can be considered political
19 conunittees under tiie Act."); MUR 5753 (League of Conservation Voters 527), FGCR at
20 7 ("only organizations whose major purpose is campaign activity can be considered
MCFL can be read to impose an additional limitation on the statute, ever narrower than the Buckley
construction, since MCFL speaks of spending that must be "so extensive." MCFL, 479U.S. at 262. The
word "extensive" is defined as "covering or affecting a large area;" "large in amount or scale." See
OxfordDictionaries.com http://oxforddictionaries.com/definition/extensive?region=us&q=extensive.
Exhibit B
AO 2012-11
Page 49
Draft
1 political committees under tiie Act,"); MUR 6082 (Majority Action), FGCR atl2 ("the
2 main purpose of MA [Majority Action] was campaign activity during 2006").
3 When necessary, the Commission claims it uses the test as it was formulated by
4 the Court in Buckley. For example, as the GOPAC court observed, although the
5 Commission argued there that sufficient major purpose could be shown merely by
6 "partisan politics" or "electoral activity," it was "noteworthy that in its opposition to the
7 petition for rehearing en banc in Akins v. FEC, the Commission supports the formulation
8 oftiie Buckley test." GOPAC, 917 F. Supp. at 859 n.l. More recentiy, die Commission
9 invoked Buckley's formulation of the test. See 2007 Political Committee Stams
10 Supplemental E&J, 72 Fed. Reg. at 5597 (the Supreme Court mandated that an additional
11 hurdle was necessary to avoid Constimtional vagueness concems; only organizations
12 whose ' 'major purpose'' is the nomination or election of a Federal candidate can be
13 considered ' 'political committees'' under the Act" (citing Buckley, 424 U.S. at 79.)).
14 Subsequent to this pronouncement, however, the Commission continued to consider the
15 more amorphous "campaign activity" test. See, e.g., MUR 5988 (American Future
16 Fund), FGCR at 11 ("sufficient spending on campaign activity."); MURs 5910 & 5694
17 (Americans for Job Security), FGCR at 6 ("The Commission has long applied the Court's
18 major purpose test in determining whether an organization is a "political committee"
19 under the Act, and it interprets that test as limited to organizations whose major purpose
20 is federal campaign activity"); MUR 5977 & 6005 (American Leadership Project), FGCR
21 at 8 (the Commission "interprets [the political conimittee] test as limited to organizations
22 whose major purpose is federal campaign activity."); MUR 5842 (Economic Freedom
23 Fund), FGCR at 11 ("only organizations whose major purpose is campaign activity can
Exhibit B
AO 2012-11
Page 50
Draft
1 potentially qualify as political committees under the Act.") Nor has the Commission
2 explained how its loss in Unity '08 v. FEC, 596 F.3d 861 (2010) (where tiie
3 Conunission's claim that Unity '08 was a political committee was rejected by the D.C
4 Circuit) affects its case-by-case approach.
5 More recently, and althougih the Commission continues to consider fhe test that
6 was rejected in GOPAC, the Commission has represented to Federal courts that it uses
7 the Buckley formulation of the test. See Brief for fhe Respondents at 5, The Real Truth
8 About Obama. Inc.. v. FEC ("RTAO"), 130 S. Ct. 2371 (U.S. 2010) (No. 09-724)
9 ("Under the major purpose test, an organization will not be regulated as a political
10 committee unless its 'major purpose... is the nomination or election of a candidate'"
11 (citing Buckley, 424 U.S. at 79)); Brief of Appellees Federal Election Coinmission and
12 United States Department of Justice at 9, RTAO, 575 F.3d 342 (4tii Cir. 2011) (No. 11-
13 1760) ("Under the statue as thus limited, as organization that is not controlled by a
14 candidate must register as a political committee only if (1) the entity crosses the $1,000
15 threshold of contributions or expenditures, and (2) its 'major purpose' is the nomination
16 or election of federal candidates."); Brief of Appellees Federal Election Commission and
17 United States Department of Justice at 5, RTAO, 2008WL 4416282 (4tii Cir. 2008) (No.
18 08-1977) ("Under the statute as thus limited, a non-candidate-conttolled entity must
19 register as a political committee^thereby becoming subject to limits on the sources and
20 amounts of its contributions receivedonly if the entity crosses the $1,000 threshold of
21 contributions or expenditures and its 'major purpose' is the nomination or election of
22 federal candidates."); Federal Election Conunission's Opposition to Appellant's Motion
23 for Injunction Pending Appeal, RTAO, 2008WL 4416282 (4tii Cir. 2008) (No. 08-1977)
Exhibit B
AO 2012-11
Page 51
Draft
1 ("Under the statute as thus limited, a non-candidate organization must register as a
2 political committee and be subject to contribution limits only if the entity crosses the
3 $1,000 threshold of contributions or expenditures and its 'major purpose' is the
4 nomination or election of federal candidates."); Federal Election Commission's
5 Memorandum in Opposition to Plaintiffs Motion for Preliminary Injunction, RTAO, No.
6 3:08-cv-00483-JRS at 4 (E.D. Va. 2008) ("Under tiie stattite as tiius limited, a non-
7 candidate organization must register as a political committee and be subject to
8 contribution limits only if the entity crosses the $1,000 threshold of contributions or
9 expenditures and its 'major purpose' is the nomination or election of federal
10 candidates."); Defendant Federal Election Commission's Memorandum in Support of
11 Motion for Summary Judgment and Opposition to Plaintiffs Motion for Preliminary
12 Injunction and Summary Judgment, RTAO, No. 3:08-cv-00483-JRS at 10 (E.D. VA.
13 2010) ("Under the statute as thus limited, a non-candidate-conttolled entity must register
14 as a political committee only if it crosses one of the $1,000 statutory thresholds and its
15 'major purpose' is the nomination or election of federal candidates."); Defendant Federal
16 Election Commission's Reply in Support of the Commission's Motion for Summary
17 Judgment, RTAO, No. 3:08-cv-00483-JRS at 25 (E.D. VA. 2010) ("In Buckley, tiie
18 Supreme Court established the 'major purpose' test to limit the definition of 'political
19 committee' to organizations conttolled by a candidate or whose major purpose is the
20 nomination or election of a candidate.").
21 In reviewing an analogous state law, the 10*^ Circuit articulated the major purpose
22 test of Buckley as follows: "There are two methods to determine an organization's 'major
23 purpose': (1) examination of the organization's centtal organizational purpose; or (2)
Exhibit B
AO 2012-11
Page 52
Draft
1 comparison of the organization's electioneering spending with overall spending to
2 determine whether the preponderance of expenditures is for express advocacy or
3 contributions to candidates." New Mexico Youth Organized v. Herrera, 611 F.3d 669,
4 678 (10* Cir. 2010).^'
5
7 Even if Free Speech's proposed advertisement "Financial Reform" constitutes
8 express advocacy. Free Speech need not file as a political committee. According to its
9 request, it plans on spending $250 to run "Financial Reform" as a newspaper
10 advertisement, and $333.33 to run it as a radio advertisement, for a total of $583.33.
11 Thus, even if the advertisement is express advocacy. Free Speech will not spend more
12 than $1,000 on "expenditures." Since none of Free Speech's donation requests will result
13 in contributions, it will not receive in excess of $1,000 in "contributions." Because it will
^' Although other Circuits have articulated different versions ofthe major purpose test, those decisions
were reviewing laws that differed significantly from the Act as construed by Buckley. For example, the
Ninth Circuit reviewed a state statute that imposed political committee status on groups with "a" major
purpose of electing or nominating a candidate. Human Life of Washington, Inc. v. Brumsickle, 624 F.3d
990 (9*'' Cir. 2010). By way of comparison, the federal law looks to "the" major purpose, a distinction that
the Fourth Circuit has ah-eady deemed critical. See N.C. Right to Life v. Leake, 525 F.3d 274 (4"' Cir.
2008). See also McKee, 723F. Supp.2d 245 (D. Me. 2010), affd 649F.3d 34 (1st Cir. 2011), No. 11-599,
cert, denied (Feb. 27,2012) (upholding state statute, but making clear that the major purpose test of
Buckley was a result of statutory construction). Moreover, the Commission has already publicly confirmed
that major puipose is determined by a comparison of a group's campaign spending to the remainder of its
spending. See Brief of Appellees Federal Election Commission and United States Department of Justice,
RTAO. No. 11-1760 at 71 (4th Cir. 2011) ("As Coffinan notes, MCFL 'suggested two methods to determine
an organization's 'major purpose': (1) the examination of the organization's central organizational purpose;
or (2) comparison ofthe organization's independent [express advocacy] spending with overall spending.").
In other words, the Commission does not subdivide non-campaign spending. Cf, Brumsickle, 624 F.3d
1011 (in dicta, explained that where one group spends 40% of its time and resources on political advocacy,
30% of its time and resources producing merchandise, and 30% of its time and resources on research
whereas an otherwise identical group that spends 45% of its time and resources on political advocacy, 45%
of its time and resources on producing merchandise, and 10% of its time and resources on research,
"[p]olitical advocacy is 'the' major purpose for the former group (because political advocacy commands
the largest share of the group's time and resources), but it is just 'a* major purpose of the latter (because the
group expends equal time and resources on political activity and merchandise production.").
Exhibit B
AO 2012-11
Page 53
Draft
1 not make in excess of $ 1000 in expenditures or receive in excess of $1000 in
2 contributions. Free Speech does not have to register and report as a political committee.
***
6 This response constitutes an advisory opinion conceming the application of the
7 Act and Commission regulations to the specific ttansaction or activity set forth in your
8 request. See 2 U.S.C. 437f The Commission emphasizes that, if there is a change in any
9 of the facts or assumptions presented, and such facts or assumptions are material to a
10 conclusion presented in this advisory opinion, then the requestors may not rely on that
11 conclusion as support for its proposed activity. Any person involved in any specific
12 ttansaction or activity which is indistinguishable in all its material aspects from the
13 ttansaction or activity with respect to which this advisory opinion is rendered may rely on
14 this advisory opinion. 2 U.S.C. 437f(c)(l)(B). Please note the analysis or
15 conclusions in this advisory opinion may be affected by subsequent developments in the
16 law including, but not limited to, stamtes, regulations, advisory opinions, and case law.
17 The cited advisory opinions are available on the Commission's Web site,
18 www.fec.gov, or directiy from the Commission's Advisory Opinion searchable database
19 at http://www.fec.gov/searchao.
20
21 On behalf of the Commission,
22
23
24
25 Caroline C. Hunter
26 Chair
Exhibit B
AO 2012-11
Page 54
Draft
Exhibit B
PUBLIC COMMENTS ON DRAFT ADVISORY OPINIONS

Members of the public may submit written comments on draft advisory opinions.

DRAFT B of ADVISORY OPINION 2012-11 is now available for comment. It
was requested by Benjamin T. Barr, Esq. and Stephen R. Klein, Esq., on behalf of Free
Speech, and is scheduled to be considered by the Commission at its public meeting on
April 12, 2012. The meeting will begin at 10:00 a.m. and will be held in the 9
th
Floor
Hearing Room at the Federal Election Commission, 999 E Street, NW, Washington, DC.
Individuals who plan to attend the public meeting and who require special assistance,
such as sign language interpretation or other reasonable accommodations, should contact
the Commission Secretary, at (202) 694-1040, at least 72 hours prior to the meeting date.

If you wish to comment on DRAFT B of ADVISORY OPINION 2012-11, please
note the following requirements:

1) Comments must be in writing, and they must be both legible and complete.

2) Comments must be submitted to the Office of the Commission Secretary by
hand delivery or fax ((202) 208-3333), with a duplicate copy submitted to the
Office of General Counsel by hand delivery or fax ((202) 219-3923).

3) Comments must be received by noon (Eastern Time) on April 17, 2012.

4) The Commission will generally not accept comments received after the
deadline. Requests to extend the comment period are discouraged and
unwelcome. An extension request will be considered only if received before
the comment deadline and then only on a case-by-case basis in special
circumstances.

5) All timely received comments will be made available to the public at the
Commission's Public Records Office and will be posted on the Commissions
website at http://saos.nictusa.com/saos/searchao.













Exhibit C
REQUESTOR APPEARANCES BEFORE THE COMMISSION

The Commission has implemented a pilot program to allow advisory opinion
requestors, or their counsel, to appear before the Commission to answer questions at the
open meeting at which the Commission considers the draft advisory opinion. This
program took effect on July 7, 2009.

Under the program:

1) A requestor has an automatic right to appear before the Commission if any
public draft of the advisory opinion is made available to the requestor or
requestor's counsel less than one week before the public meeting at which the
advisory opinion request will be considered. Under these circumstances, no
advance written notice of intent to appear is required. This one-week period is
shortened to three days for advisory opinions under the expedited twenty-day
procedure in 2 U.S.C. 437f(a)(2).

2) A requestor must provide written notice of intent to appear before the
Commission if all public drafts of the advisory opinion are made available to
requestor or requestor's counsel at least one week before the public meeting at
which the Commission will consider the advisory opinion request. This one-
week period is shortened to three days for advisory opinions under the
expedited twenty-day procedure in 2 U.S.C. 437f(a)(2). The notice of intent
to appear must be received by the Office of the Commission Secretary by
hand delivery, email (Secretary@fec.gov), or fax ((202) 208-3333), no later
than 48 hours before the scheduled public meeting. Requestors are
responsible for ensuring that the Office of the Commission Secretary receives
timely notice.

3) Requestors or their counsel unable to appear physically at a public meeting
may participate by telephone, subject to the Commission's technical
capabilities.

4) Requestors or their counsel who appear before the Commission may do so
only for the limited purpose of addressing questions raised by the Commission
at the public meeting. Their appearance does not guarantee that any questions
will be asked.









Exhibit C

FOR FURTHER INFORMATION

Press inquiries: Judith Ingram
Press Officer
(202) 694-1220

Commission Secretary: Shawn Woodhead Werth
(202) 694-1040

Comment Submission Procedure: Kevin Deeley
Acting Associate General Counsel
(202) 694-1650
Other inquiries:

To obtain copies of documents related to Advisory Opinion 2012-11, contact the
Public Records Office at (202) 694-1120 or (800) 424-9530, or visit the Commissions
website at http://saos.nictusa.com/saos/searchao.


ADDRESSES

Office of the Commission Secretary
Federal Election Commission
999 E Street, NW
Washington, DC 20463

Office of General Counsel
ATTN: Kevin Deeley, Esq.
Federal Election Commission
999 E Street, NW
Washington, DC 20463










Exhibit C



FEDERAL ELECTION COMMISSION
Washington, DC 20463

April 11, 2012


MEMORANDUM

TO: The Commission

FROM: Anthony Herman
General Counsel

Kevin Deeley
Acting Associate General Counsel

Amy Rothstein
Assistant General Counsel

Neven F. Stipanovic
Attorney

Erin R. Chlopak
Attorney

Allison T. Steinle
Attorney

Subject: AO 2012-11 (Free Speech) (Draft B)

Attached is a proposed draft of the subject advisory opinion. We have been asked
to have this draft placed on the Open Session agenda for April 12, 2012.



Attachment

Exhibit C


ADVISORY OPINION 2012-11 1
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Benjamin T. Barr Esq.
Stephen R. Klein, Esq. DRAFT B
Wyoming Liberty Group
1740 H Dell Range Blvd. #459
Cheyenne, WY 82009

Dear Messrs. Barr and Klein:
We are responding to your advisory opinion request on behalf of Free Speech,
concerning the application of the Federal Election Campaign Act, as amended (the
Act), and Commission regulations to Free Speechs proposed plan to finance certain
advertisements and ask for donations to fund its activities.
The Commission concludes that: (1) seven of Free Speechs 11 proposed
advertisements would expressly advocate the election or defeat of a clearly identified
Federal candidate; (2) two of the four proposed donation requests would be solicitations
of contributions; and (3) Free Speechs proposed activities would require it to register
and report with the Commission as a political committee.
Background
The facts presented in this advisory opinion are based on your letter received on
February 29, 2012, and your email received on March 9, 2012.
Free Speech describes itself as an independent group of individuals which
promotes and protects free speech, limited government, and constitutional
accountability. Bylaws, Art. II. It is an unincorporated nonprofit association formed
under the Wyoming Unincorporated Nonprofit Association Act, WYO. STAT. ANN.
Exhibit C
AO 2012-11
Page 2
Draft B

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17-22-101 to 115 (2012), and a political organization under 26 U.S.C. 527 of the
Internal Revenue Code.
1
It currently has three individual members.
Free Speech will not make any contributions to Federal candidates, political
parties, or political committees that make contributions to Federal candidates or political
parties. Nor is Free Speech affiliated with any group that makes contributions. Free
Speech also will not make any coordinated expenditures.
2

Free Speech plans to run 11 advertisements, which it describes as discuss[ing]
issues concerning limited government, public policy, the dangers of the current
administration, and their connection with candidates for federal office. Free Speech will
run these advertisements in various media, including radio, television, the Internet, and
newspapers. Free Speech currently plans to run the following ads, which are described
more fully in response to question 1 below.
Radio Advertisements 13
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Free Speech plans to spend $1,000 on three advertisements to be aired on local
radio station KGAB AM in Cheyenne, Wyoming. These advertisements, which Free
Speech calls Environmental Policy, Financial Reform, and Health Care Crisis, will

1
The Internal Revenue Code defines a political organization as a party, committee, association, fund, or
other organization (whether or not incorporated) organized and operated primarily for the purpose of
directly or indirectly accepting contributions or making expenditures, or both, for [the tax-]exempt
function of influencing or attempting to influence the selection, nomination, election, or appointment of
any individual to any Federal, State, or local public office or office in a political organization, or the
election or selection of presidential or vice presidential electors. 26 U.S.C. 527(e).

2
Free Speechs bylaws prohibit its members, officers, employees, and agents from engaging in activities
that could result in coordination with a Federal candidate or political party. Bylaws, Art. VI. And
members, officers, employees and agents have a duty to ensure the independence of all speech by the
Association about any candidate or political party . . . in order to avoid coordination. Bylaws, Art. VI,
Sec. 3.
Exhibit C
AO 2012-11
Page 3
Draft B

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be aired 60 times between April 1 and November 3, 2012. Free Speech currently plans to
allocate its budget evenly among the three advertisements, spending $333.33 for each.
Newspaper Advertisements 3
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Free Speech plans to spend $500 on two advertisements that will appear in the
Wyoming Tribune Eagle on May 12 and May 27, 2012. Free Speech plans to spend $250
on each advertisement. The advertisements Financial Reform and Health Care
Crisis will include pictures as well as text.
Internet Advertisements 8
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Free Speech plans to spend $500 on two advertisements that will appear on
Facebook. The advertisements will appear for a total of 200,000 impressions on
Facebook within Wyoming network between April 1 and April 30, 2012. Free Speech
plans to spend $250 on each advertisement. The two advertisements, entitled Gun
Control and Environmental Policy, will include pictures as well as text.
Television Advertisements 14
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Free Speech plans to spend $8,000 on four advertisements that will appear on the
local television network KCWY in Cheyenne, Wyoming. The advertisements will appear
approximately 30 times between May 1 and November 3, 2012. Free Speech plans to
spend $2,000 on each of the four advertisements. The advertisements are entitled Gun
Control, Ethics, Budget Reform, and An Educated Voter Votes on Principle.
In total, Free Speech plans to spend $10,000 to run the advertisements described
above. Free Speech would like to speak out in similar ways in the future.
Free Speech has identified one individual donor willing to give it $2,000 or more,
and would like to ask other individuals to donate more than $1,000 to help support its
Exhibit C
AO 2012-11
Page 4
Draft B

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speech. Free Speech would also draw upon funds from its three members to pay for
advertisements costing more than $2,000. Free Speech, however, will not accept
donations from individuals who are foreign nationals or Federal contractors. Free Speech
plans to ask for donations from individuals through four separate donation requests,
which are described in response to question 2 below.
Questions Presented
1. Will Free Speechs proposed advertisements be express advocacy?
2. Will Free Speechs proposed donation requests be solicitations of
contributions?
3. Will the activities described in this advisory opinion request require Free
Speech to register and report to the Commission as a political committee?
3


Legal Analysis and Conclusions

Question 1. Will Free Speechs proposed advertisements be express advocacy?
The Act defines an expenditure to include any purchase, payment . . . or gift of
money or anything of value, made by any person for the purpose of influencing any
election for Federal office. 2 U.S.C. 431(9)(A)(i); see 11 CFR 100.111(a). Funds used
for communications that expressly advocate the election or defeat of a clearly identified
Federal candidate are expenditures. See McConnell v. FEC, 540 U.S. 93, 190-92
(2003); see also Buckley v. Valeo, 424 U.S. 1, 77-80 (1976). An independent
expenditure is an expenditure for a communication expressly advocating the election or

3
This advisory opinion is limited to addressing Free Speechs specific transaction[s] or activit[ies]. 2
U.S.C. 437f(a)(1). To the extent Free Speech also asks general questions of interpretation and poses
hypotheticals, such questions do not qualify as advisory opinion requests and accordingly are not
addressed in this advisory opinion. 11 CFR 112.1(b).
Exhibit C
AO 2012-11
Page 5
Draft B

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defeat of a clearly identified candidate that is not coordinated with any candidate or
political party. 2 U.S.C. 431(17)(A); 11 CFR 100.16(a).
Under the Commissions regulations, a communication expressly advocates the
election or defeat of a clearly identified Federal candidate if it uses phrases such as vote
for the President, support the Democratic nominee, defeat accompanied by a
picture of one or more candidate(s), or reject the incumbent, or uses campaign slogans
or individual words that, in context, have no other reasonable meaning than to urge the
election or defeat of one or more clearly identified candidate(s). 11 CFR 100.22(a)
(emphases added). A communication that pairs a listing of clearly indentified
candidates described as supporting a specific policy or position with a call to vote for
or against that specific policy or position likewise expressly advocates the election or
defeat of a clearly defined candidate. 11 CFR 100.22(a) (express advocacy includes
phrases such as vote Pro-Life or vote Pro-Choice accompanied by a listing of clearly
identified candidates described as Pro-Life or Pro-Choice).
A communication also constitutes express advocacy if (1) it contains an electoral
portion that is unmistakable, unambiguous, and suggestive of only one meaning, and
(2) [r]easonable 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. 11 CFR 100.22(b). A communication thus constitutes express advocacy under
section 100.22(b) if, [w]hen taken as a whole and with limited reference to external
events, such as the proximity to the election, [it] 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 CFR 100.22(b). For example, [c]ommunications discussing
Exhibit C
AO 2012-11
Page 6
Draft B

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or commenting on a candidates character, qualifications, or accomplishments are
considered express advocacy . . . if, in context, they have no other reasonable meaning
than to encourage actions to elect or defeat the candidate in question. Explanation and
Justification for Final Rules on Express Advocacy; Independent Expenditures; Corporate
and Labor Organization Expenditures, 60 FR 35292, 35295 (July 6, 1995) (Express
Advocacy E&J); cf. FEC v. Wis. Right to Life, Inc. (WRTL), 551 U.S. 449, 469-70
(2007) (indicia of express advocacy include tak[ing] a position on a candidates
character, qualifications, or fitness for office); Citizens United v. FEC, 558 U.S. __, 130
S.Ct. 876, 889-90 (2010).
For the reasons set forth below, the Commission concludes that Free Speechs
advertisements entitled Environmental Policy, Gun Control television advertisement,
Financial Reform, Budget Reform, and Educated Voter Votes on Principle are
express advocacy under 11 CFR 100.22. The Commission further concludes that Free
Speechs remaining proposed advertisements the two Health Care Crisis
advertisements, the Gun Control Facebook advertisement, and the Ethics
advertisement are not express advocacy.
A. The Environmental Policy Radio Advertisement
President Obama opposes the Government Litigation
Savings Act. This is a tragedy for Wyoming ranchers and a
boon to Obamas environmentalist cronies. Obama cannot
be counted on to represent Wyoming values and voices as
President. This November, call your neighbors. Call your
friends. Talk about ranching.

Exhibit C
AO 2012-11
Page 7
Draft B

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The Environmental Policy radio advertisement is express advocacy under
11 CFR 100.22(b). The ad disparages President Obama by characterizing his opposition
to legislation as a tragedy for Wyoming ranchers, referring to Obamas
environmentalist cronies, and stating that Obama cannot be counted on to represent
Wyoming values . . . as President. The advertisement also contains an electoral
portion that expressly exhorts listeners to take action [t]his November. 11 C.F.R.
100.22(b).
Although the advertisement refers to legislation, it does not describe or discuss
the merits of that legislation. The advertisement, when taken as a whole and with limited
reference to external events, can only be interpreted by a reasonable person as advocating
Mr. Obamas defeat as President in the election [t]his November. 11 C.F.R. 100.22
(b). It cannot be regarded as a mere discussion of public issues that by their nature
raises the name[] of President Obama. FEC v. Mass. Citizens for Life, Inc., 479 U.S.
238, 249 (1986) (MCFL). The advertisement goes beyond issue discussion to express
electoral advocacy, id., asserting that President Obama cannot be counted on to
represent Wyoming values and voices as President and concluding with a call to action
this November.
Finally, the ending tagline, [t]alk about ranching, does not negate the
advertisements express electoral advocacy. See id. at 249 (recognizing that disclaimer
of candidate endorsement cannot negate express advocacy where text of the ad goes
beyond issue discussion to express electoral advocacy). It is an obvious non sequitur,
and no reasonable person could conclude that the advertisement actually encourages
listeners to [t]alk about ranching in November rather than advocating against
Exhibit C
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President Obama. In an advertisement that predominantly criticizes a candidates
character, qualifications and fitness for office (cf. WRTL, 551 U.S. at 470), the
exhortation to [t]alk about ranching can only be understood in the context of the
election. Thus, the advertisements direction to call your neighbors to discuss
President Obamas ranching policies this November encourages actions to defeat
President Obama. 11 CFR 100.22(b); see Express Advocacy E&J, 60 FR at 35295.
B. The Financial Reform Radio and Newspaper Advertisements

President Obama supported the financial bailout of Fannie
Mae and Freddie Mac, permitting himself to become a
puppet of the banking and bailout industries. What kind of
person supports bailouts at the expense of average
Americans? Not any kind we would vote for and neither
should you. Call President Obama and put his antics to an
end.
4


The Financial Reform advertisements, which Free Speech proposes to air on the
radio and run in newspapers, are express advocacy under 11 CFR 100.22(a). The
advertisements criticize President Obamas character, asking [w]hat kind of person
supports bailouts[]? They then invoke this criticism as the reason that President Obama
is not any kind [of person] that we the advertisements creators would vote for,
and then conclude that neither should you. The advertisements thus expressly advocate
the defeat of President Obama, explicitly urging listeners and readers not to vote for him.
See 11 CFR 100.22(a) (express advocacy includes, inter alia, phrases such as vote for
or vote against a clearly identified candidate, and phrases advocating a vote in favor
or against a specific policy and expressly describing a clearly identified candidate as

4
The script for the radio version of the Financial Reform advertisement is the same as the text of the print
version. The only difference between the two, besides the format, is the newspaper advertisements
inclusion of a full-page picture of President Obama.
Exhibit C
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supporting or opposing that policy); see also MCFL, 479 U.S. at 249 (communication
that not only urge[d] voters to vote for pro-life candidates, but also identifie[d] and
provide[d] photographs of specific candidates fitting that description was express
advocacy); MUR 5887 (Schwarz for Congress), Conciliation Agreement 14 (May 27,
2009) (advertisement lauding Schwarzs accomplishments and then stating we know
him, want him, back in Congress is express advocacy under section 100.22(a)). The tag
line directive [c]all President Obama does not negate the advertisements express
electoral advocacy. MCFL, 479 U.S. at 249 (recognizing that disclaimer of candidate
endorsement cannot negate express advocacy where text of the ad goes beyond issue
discussion to express electoral advocacy).
C. The Health Care Crisis Radio and Newspaper Advertisements

President Obama supports socialized medicine, but
socialized medicine kills millions of people worldwide.
Even as Americans disapproved of ObamaCare, he pushed
ahead to make socialized medicine a reality. Put an end to
the brutality and say no to socialized medicine in the
United States.
5


The Health Care Crisis advertisements, which Free Speech proposes to air on
the radio and run in newspapers, are not express advocacy. These advertisements
criticize President Obamas health care policy, provide Free Speechs views on the issue
(socialized medicine kills millions of people worldwide), and conclude with a policy-
related call to action. These ads have no electoral portion. 11 CFR 100.22(b)(1). A

5
Like the script for the radio and print versions of the Financial Reform advertisements, the script for the
two versions of the Health Care Crisis advertisements is the same. The only difference between the two
advertisements, besides the format, is the newspaper advertisements inclusion of a [f]ull picture of a
family picture torn in half.
Exhibit C
AO 2012-11
Page 10
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reasonable mind could conclude that the advertisements encourage actions related to
health care policy rather than to defeat President Obama.
D. The Gun Control Facebook Advertisement
(Picture of handgun, 110 pixels wide by 80 pixels tall)
(Title: Stand Against Gun Control)
Obama supports gun control. Dont trust him. Support
Wyoming state candidates who will protect your gun rights.

The Gun Control Facebook advertisement, which criticizes President Obamas
support of gun control and exhorts viewers to [s]upport Wyoming state candidates is
not express advocacy. The advertisements only electoral portion concerns Wyoming
state candidates, not federal candidates. 11 CFR 100.22(b)(1). A reasonable mind could
conclude that the advertisement encourages support of Wyoming state candidates who
will protect . . . gun rights, and does not encourage action to defeat President Obama.
E. The Environmental Policy Facebook Advertisement
(Picture of a Wyoming ranch, 110 pixels wide by 80 pixels
tall)
(Title: Learn About Ranching)
Obamas policies are a tragedy for Wyoming ranchers, and
he does not represent our values. This November, learn
about ranching.

The Environmental Policy Facebook advertisement is express advocacy under
11 CFR 100.22(b). Like the Environmental Policy radio advertisement, this
advertisement criticizes President Obama, attacking his policies generically as a
tragedy for Wyoming ranchers and questioning his values. Also, like the similar radio
advertisement, this advertisement contains an electoral portion that expressly exhorts
listeners to take action [t]his November. 11 C.F.R. 100.22(b)(1). Taken as a whole
and with limited reference to external events, the advertisement can only be interpreted
Exhibit C
AO 2012-11
Page 11
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by a reasonable person as advocating the electoral defeat of President Obama [t]his
November. 11 C.F.R. 100.22(b). Finally, like the talk about ranching tagline in the
similar radio advertisement, the directive to learn about ranching [t]his November is
an obvious non sequitur that can only be understood as a reference to the election. No
reasonable person could conclude that the advertisement actually encourages viewers to
learn about ranching in November. 11 CFR 100.22(b); see Express Advocacy E&J,
60 FR at 35295; see also MCFL, 479 U.S. at 249-50 (disclaiming candidate endorsement
in communication that goes beyond issue discussion cannot negate conclusion of
express advocacy); Real Truth About Obama v. FEC, 796 F. Supp. 2d 736, 749-50 (E.D.
Va. 2011) (RTAO) (concluding that 11 CFR 100.22(b) may constitutionally be applied
to two anti-Obama advertisements that harshly criticized then-Senator and presidential
candidate Obama for his position on abortion that lacked an explicit exhortation to vote
against him), appeal docketed, No. 11-1760 (4th Cir. argued Mar. 21, 2012).
F. The Gun Control Television Advertisement
Audio:
Guns save lives.




Thats why all Americans
should seriously doubt the
qualifications of Obama, an
ardent supporter of gun
control.



This fall, get enraged, get
engaged, and get educated.
Video:
Newspaper clippings with
headlines describing self-
defense with firearms fade in,
piling up one atop another.

Clippings dissolve to a picture
of President Obama, and one
newspaper headline below
him: President Obama
defends attorney general
regarding ATF tactics (LA
Times, Oct. 6, 2011)

Dissolves to a picture of the
Wyoming state flag, panning
Exhibit C
AO 2012-11
Page 12
Draft B

And support Wyoming state
candidates who will protect
your gun rights.
down to the Wyoming Capitol
Building
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The Gun Control advertisement that Free Speech proposes to broadcast on
television is express advocacy under 11 CFR 100.22(b). The advertisement exhorts all
Americans to seriously doubt President Obamas qualifications based on his ardent
support[] of gun control, in spite of the advertisements assertion that [g]uns save
lives. Having urged widespread and serious[] doubt of the Presidents
qualifications, the advertisements electoral portion then immediately exhorts
viewers to get enraged, get engaged, and get educated, and to do so [t]his fall. The
advertisement, when taken as a whole and with limited reference to external events, can
only be interpreted by a reasonable person as advocating that viewers express their
serious[ ] doubt for President Obamas qualifications by casting a vote to defeat him
this fall. See 11 CFR 100.22(b); Express Advocacy E&J, 60 Fed. Reg. at 35295
(Communications discussing or commenting on a candidates character, qualifications,
or accomplishments are considered express advocacy under . . . section 100.22(b) if, in
context, they have no other reasonable meaning than to encourage actions to elect or
defeat the candidate in question.) (emphasis added); see also RTAO, 796 F. Supp. 2d at
749-50 (advertisements that invoke policy issue as basis for opposing then-Senator and
presidential candidate Obama, even without explicit call to action this fall, are express
advocacy under 11 CFR 100.22(b)). Although the advertisement has an additional
exhortation to support Wyoming state candidates who will protect your gun rights,
reasonable minds could not differ as to whether it [also] encourages actions to . . .
Exhibit C
AO 2012-11
Page 13
Draft B

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defeat President Obama. See 11 CFR 100.22(b) (defining express advocacy as a
communication containing advocacy of the election or defeat of one or more clearly
identified candidate(s)) (emphasis added); cf. MCFL, 479 U.S. at 249-50 (purported
disclaimer of candidate endorsement cannot negate express advocacy).
G. The Ethics Television Advertisement
Audio:
Who is President Obama?



He preaches the importance of
high taxes to balance the
budget, but nominates political
elites who havent paid theirs.




He talks about budget and tax
priorities, but passes a blind
eye to nominees who dont
contribute their fair share.




Call President Obama and tell
him you dont approve of his
taxing behavior.
Video:
Picture of President Obama
shaking hands with Hugo
Chavez.

Fade to another picture of
Obama giving State of the
Union, superimposed Obama
Aims $1.4 Trillion Tax
Increase at Highest Earners
(San Francisco Chronicle, Feb.
14, 2011)

Cut to picture on left side of
screen of Secretary of Treasury
Timothy Geithner giving
testimony, superimposed
Geithner apologizes for not
paying taxes (CBS News, Feb.
18, 2009)

Picture fades in on right side of
screen of Tom Daschle,
superimposed Tax Woes
Derail Daschles Bid for
Health Chief (NPR, Feb. 3,
2009)

Fade to picture of President
Obama and Michelle Obama
enjoying themselves in
Hawaii.
6
Exhibit C
AO 2012-11
Page 14
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The Ethics television advertisement, which criticizes President Obama based on
statements about his budget and tax priorities and his nominees asserted lack of
compliance with their tax obligations, is not express advocacy. The advertisement
exhorts viewers to [c]all President Obama and tell him you dont approve of his taxing
behavior. The advertisement contains no electoral portion and a reasonable mind
could conclude that the advertisement merely encourages actions regarding budget and
tax policy and President Obamas selection of nominees. 11 C.F.R. 100.22(b). See, e.g.,
MUR 6044 (Musgrove for Senate and DSCC), Statement of Reasons of Commissioners
Walther, Petersen, Bauerly, Hunter and McGahn at 5; MUR 5788 (Republican Federal
Committee of Pennsylvania and Santorum 2006), Factual and Legal Analysis at 6-7.
H. The Budget Reform Television Advertisement
AUDIO:
Congresswoman Lummis
supported the Repeal
Amendment, which would
have restored fiscal sanity to
our federal debt.

Congresswoman Lummis is
brave in standing against the
political elite and deserves
your support. Make your
voice heard.

Do everything you can to
support Congresswoman
Lummis this fall and work
toward fiscal sanity.
Video:
Picture of Representative
Lummis, superimposed Tea
Party Pushes Amendment to
Veto Congress (AOL News,
Dec. 1, 2010)

Small videos of Representative
Lummis fade in, speaking on
news programs, meeting with
people, etc.


Wyoming flag fades in the
background, returning to
original picture of Rep.
Lummis.
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The Budget Reform advertisement, which Free Speech proposes to broadcast
on television, is express advocacy under 11 CFR 100.22(a). This advertisement
Exhibit C
AO 2012-11
Page 15
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expressly advocates for Congresswoman Lummiss election: it tells the viewer that
Congresswoman Lummis deserves your support and exhorts the viewer to [d]o
everything you can to support Congresswoman Lummis this fall and work toward fiscal
sanity. See 11 CFR 100.22(a) (support the Democratic nominee, even without added
clarification of when or how, is express advocacy); MUR 5887 (Schwarz for Congress),
Conciliation Agreement 11 (support Congressman Joe Schwarz, the Congressman
with a real Republican record is express advocacy under section 100.22(a)). The
advertisements clarification of when viewers should support Congresswoman Lummis
this fall further underscores the manner in which viewers are encouraged to support
Congresswoman Lummis, i.e., by voting for her in the election this fall.
I. The Educated Voter Votes on Principle Television Advertisement
Audio:
Across America, millions of
citizens remain uninformed
about the truth of President
Obama.

Obama, a President who palled
around with Bill Ayers.








Obama, a President who was
cozy with ACORN.

Obama, a President destructive
of our natural rights.

Video:
Picture of President Obama
shaking hands with Hugo
Chavez.


Picture of Bill Ayers in
Weather Underground days,
superimposed Bill Ayers
Dishes on Hosting a
Fundraiser for Barack Obama
(Big Government, Nov. 29,
2011).


House votes to Strip Funding
for ACORN (Fox News, Sept.
17, 2009)

Video of an ATF raid, fade to
a video of TSA scanning
individuals in line for airport.
Exhibit C
AO 2012-11
Page 16
Draft B


Real voters vote on principle.
Remember this nations
principles.

Fades to still shot of the Bill of
Rights, superimposed
Remember this nations
principles.
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The Educated Voter Votes on Principle advertisement, which Free Speech
proposes to broadcast on television, is express advocacy under 11 CFR 100.22(b). The
advertisement, when taken as a whole, even with no reference to external events, can
only be interpreted by a reasonable person as advocating the defeat of President Obama.
11 CFR 100.22(b). It focuses exclusively on President Obama; criticizes President
Obamas character, asserting that he palled around with Bill Ayers and was cozy with
ACORN; and condemns President Obamas job performance, describing him as a
President destructive of our natural rights. And after these statements about President
Obamas character and job performance, the advertisements clear electoral portion
instructs that [r]eal voters vote on principle and exhorts viewers to remember this
nations principles. The advertisement thus is an unmistakable and unambiguous call to
vote against President Obama. See 11 CFR 100.22(b); Express Advocacy E&J, 60 FR at
35295 (Communications discussing or commenting on a candidates character,
qualifications, or accomplishments are considered express advocacy under . . . section
100.22(b) if, in context, they have no other reasonable meaning than to encourage actions
to elect or defeat the candidate in question.); see also RTAO, 796 F. Supp. 2d at 749-50
(concluding that 11 CFR 100.22(b) may constitutionally be applied to two anti-Obama
advertisements that harshly criticized then-Senator and presidential candidate Obama for
his position on abortion even in the absence of an explicit exhortation to vote against
him). This advertisement, characterizing President Obama as destructive of our natural
Exhibit C
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rights and unprincipled and urging viewers to vote on principle, resembles the
advertisement at issue and considered express advocacy in MCFL, which expressly
advocated votes for certain candidates by defining them as pro-life and exhorting
readers to vote pro-life. See MCFL, 479 U.S. at 249-50.
Question 2. Will Free Speechs proposed donation requests be solicitations of
contributions?
Two of Free Speechs proposed donation requests entitled War Chest and
Make Them Listen will solicit contributions. The proposed donation requests
entitled Strategic Speech and Checking Boxes will not.
The Act defines the term contribution to include any gift, subscription, loan,
advance, or deposit of money or anything of value made by any person for the purpose of
influencing any election for Federal office. 2 U.S.C. 431(8)(A)(i); see also 11 CFR
100.52(a). The Act requires any person who solicits any contribution through any
broadcasting station, newspaper, magazine, outdoor advertising facility, mailing, or any
other type of general public political advertising to include a specified disclaimer in the
solicitation. 2 U.S.C. 441d(a); see also 11 CFR 110.11(a)(3). Requests for funds that
clearly indicate[] that the contributions will be targeted to the election or defeat of a
clearly identified candidate for federal office raise contributions under the Act. FEC
v. Survival Education Fund, 65 F.3d 285, 295 (2d Cir. 1995) (analyzing communications
for purposes of section 441d(a)).
6


6
For examples of the Commissions application of this standard, see MUR 5754 (MoveOn), Conciliation
Agreement 2; MUR 5753 (League of Conservation Voters), Conciliation Agreement 2; MUR 5511
(Swiftboat Veterans and POWs for Truth), Conciliation Agreement 2; MUR 5487 (Progress for America
Voter Fund), Conciliation Agreement 2; MUR 5440 (The Media Fund), Conciliation Agreement 2;
MUR 5365 (Club for Growth), General Counsels Report #2, at 11-13. EMILYs List v. FEC, in which the
Exhibit C
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A. The War Chest Donation Request

Friends of freedom celebrated when the Supreme Court
decided Citizens United. Now, more than ever, we can
make the most effective use of your donations this coming
fall. Donations given to Free Speech are funds spent on
beating back the Obama agenda. Beating back Obama in
the newspapers, on the airways, and against his $1 billion
war chest.

This donation request states that [d]onations given to Free Speech are funds
spent on beating back the Obama agenda and against his $1 billion war chest, and that
Free Speech can use donations most effectively [t]his coming fall. These statements
make plain that funds received in response to the request will be used to advocate the
electoral defeat of President Obama this coming fall. The use of the term war chest
is clearly a campaign reference. Accordingly, this donation request solicits
contributions under the Act. 2 U.S.C. 431(8)(A)(i); see Survival Education Fund, 65
F.3d at 294-95; cf. MUR 5487 (Progress for America Voter Fund), Conciliation
Agreement 22, 26 (concluding that direct mail pieces using the phrase help us
promote President Bushs agenda in Pennsylvania with the greatest possible strength
between now and November 1st solicited contributions because they clearly indicate
that the funds received would be targeted to the election of President Bush).
B. The Strategic Speech Donation Request
This fall, 23 Democrat incumbents are up for election in the
U.S. Senate. Seven have already decided to retire, but
some, like John Tester of Montana, havent gotten the
message. With your donation, well strategically speak out

court struck down a former Commission regulation regarding solicitations, is not to the contrary. See 581
F.3d 1, 17-18, 21 (D.C. Cir. 2009). While the decision invalidated the regulations mandatory allocation
formula, nothing in the opinion undermined the general premise that a solicitation that indicates that
donated funds will be used to support or oppose the election of a clearly identified federal candidate results
in contributions.
Exhibit C
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against the expansion of government-run healthcare and so-
called clean energy boondoggles like Solyndra, which
Senators like Tester fully support. Its time to retire failed
socialist policies.

This donation request states that, with your donation, Free Speech will
strategically speak out against the expansion of government-run healthcare and so-called
clean energy boondoggles, and urges the retirement of failed socialist policies. The
donation request identifies Senator Tester as supporting these initiatives and as an
incumbent Senator up for re-election who has not gotten the message that he should
retire, but it does not plainly indicate that funds received in response to the request will
be used to advocate his defeat. Rather, the request suggests that Free Speech will use the
funds to strategically speak out against the identified government policies it opposes.
Accordingly, this donation request does not solicit contributions under the Act. 2 U.S.C.
431(8)(A)(i); see also Survival Education Fund, 65 F.3d at 294-95.
C. The Checking Boxes Donation Request

Leading from behind, President Obama takes advice from
socialist staffers, usually choosing from a checklist of
oppressive, debt-driven policies without even considering
freedom-based and fiscally-conscious alternatives.
Checking the right box on the November ballot is
important, but like Obamas memos its just not enough.
Take the lead in making the message of Free Speech heard:
your donation will inform real American leadership.

This donation request criticizes President Obamas policy decisions, states that
checking the right box on the November ballot is important but not enough, and
concludes that your donation will inform real American leadership. Although the
request clearly identifies President Obama and refers to the November ballot, it does not
make plain that funds received in response to the request will be used to advocate his
Exhibit C
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defeat. The request exhorts the reader to [t]ake the lead in making the message of Free
Speech heard, indicating that Free Speech will use the funds received in response to the
request to promulgate its views to the public. The solicitation does not clearly indicate[]
that the contributions will be targeted to the election or defeat of the President. Survival
Education Fund, 65 F.3d at 294-95. Accordingly, this donation request does not solicit
contributions under the Act.
D. The Make Them Listen Donation Request

In 2010, the Tea Party movement ushered in an historic
number of liberty-friendly legislators. But President
Obama and his pals in Congress didnt get the message:
Stop the bailouts. No socialized healthcare. End
oppressive taxes. But we wont be silenced. Lets win big
this fall. Donate to Free Speech today.

This donation request states, Lets win big this fall. Donate to Free Speech
today, and criticizes President Obama and his pals in Congress who didnt get the
message after the 2010 electoral victories of the Tea Party movement. These
statements make plain that funds received in response to the request will be used to
advocate the defeat of President Obama and to win big this fall. Accordingly, this
donation request solicits contributions under the Act. 2 U.S.C. 431(8)(A)(i); see also
Survival Education Fund, 65 F.3d at 294-95; cf. MUR 5511 (Swiftboat Veterans and
POWs for Truth), Conciliation Agreement 20-21 (concluding that fundraising
communications stating that funds would be used to keep advertisements on the
airwaves in key battleground states and help us tell the true story of John Kerry by
impacting the public discussion surrounding Senator Kerrys fitness for duties as
Commander-in-Chief and turning up the volume on John Kerrys campaign solicited
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contributions); MUR 5487 (Progress for America Voter Fund), Conciliation Agreement
22, 26 (concluding that solicitations using the phrase help us promote President
Bushs agenda in Pennsylvania with the greatest possible strength between now and
November 1st raised contributions under the Act because they clearly indicate that the
funds received would be targeted to the election of President Bush).
Question 3. Will the activities described in this advisory opinion request require Free
Speech to register and report to the Commission as a political committee?
Yes, the activities described in this advisory opinion request will require Free
Speech to register and report to the Commission as a political committee.
The Act and Commission regulations define a political committee as any
committee, club, association or other group of persons which receives contributions
aggregating in excess of $1,000 during a calendar year or which makes expenditures
aggregating in excess of $1,000 during a calendar year. 2 U.S.C. 431(4)(A); 11 CFR
100.5. Concerned that the term political committee could reach groups engaged in
purely issue discussion, the Supreme Court stated that they 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. Buckley v. Valeo, 424 U.S. 1, 79 (1976).
Accordingly, organizations that satisfy the statutory definition of political committee
and have the requisite major purpose must register as political committees.
7


7
See also Supplemental Explanation and Justification for Final Rules on Political Committee Status, 72 FR
5595, 5597 (Feb. 7, 2007) (Supplemental E&J). Given the recent changes in the restrictions applicable to
political committee status, the First Circuit has questioned whether limiting political committee status to
those organizations that have a major purpose of federal campaign activity is constitutionally required. See
Natl Org. for Marriage v. McKee, 649 F.3d 34, 59 (1st Cir. 2011) (upholding a state disclosure law as
applied to groups that receive or spend over $5,000 on a candidates election even if those groups do not
have as their major purpose the election of a candidate).
Exhibit C
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A. Statutory Definition of Political Committee
As explained in response to Question 1 above, several of Free Speechs proposed
advertisements contain express advocacy, and funds spent on these advertisements would
be expenditures under the Act and Commission regulations. Free Speech plans to spend
more than $1,000 in this calendar year on these advertisements. Once it does, it will meet
the statutory threshold for a political committee. Similarly, as explained in response to
Question 2 above, two of Free Speechs four proposed fundraising appeals War Chest
and Make Them Listen would solicit contributions for the purpose of influencing
any Federal election. If Free Speech receives more than $1,000 in response to those
solicitations before making its planned expenditures over $1,000, it would meet the
political committee statutory threshold at that point.
8

B. Major Purpose
To determine an entitys major purpose, the Commission considers a groups
overall conduct, including: statements about its mission, the proportion of spending
related to Federal candidate campaigns, and the extent to which fundraising solicitations
indicate funds provided will be used to support or oppose specific candidates.
Supplemental Explanation and Justification for Final Rules on Political Committee
Status, 72 FR 5595, 5597, 5605 (Feb. 7, 2007) (Supplemental E&J). An organization
can satisfy the major purpose test through sufficiently extensive spending on Federal
campaign activity. Id. at 5601 (citing MCFL, 479 U.S. at 262, and quoting its
explanation that an organization would be deemed a political committee if its

8
In addition, the War Chest and Checking Boxes donation requests are express advocacy under
100.22(b) and therefore, funds spent on these requests would also trigger Free Speechs political committee
registration requirement if the expenditures on these alone or aggregated with the other expenditures are in
excess of $1,000 during a calendar year.
Exhibit C
AO 2012-11
Page 23
Draft B

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20

independent spending become[s] so extensive that the organizations major purpose
may be regarded as campaign activity). In considering an organizations major
purpose, among other things, the Commission thus compares how much of an
organizations spending is on Federal campaign activity versus activities that [a]re not
campaign related. Id. at 5601, 5605.
Free Speech states in its advisory opinion request that it does [not] have as its
major purpose the election or defeat of clearly identified candidates. Such a statement is
not, however, dispositive. See RTAO, No. 3:08-cv-00483, 2008 WL 4416282, at 14 (E.D.
Va. Sept. 24, 2008) (A declaration by the organization that they are not [organized] for
an electioneering purpose is not dispositive.), affd, 575 F.3d 342 (4th Cir. 2009),
vacated on other grounds, 130 S. Ct. 2371 (2010), remanded and decided, 796 F. Supp.
2d 736. Indeed, the Commission must consider the organizations disbursements,
activities, and statements to determine its major purpose. Id. (citing Akins v. FEC, 101
F3d 731, 743 (D.C. Cir. 1997) and Shays v. FEC, 511 F.Supp.2d 19, 31 (D.D.C.2007)).
(1) Free Speechs Proposed Advertisements
Free Speechs only currently planned activities are to spend $10,000 on 11
advertisements between April 1 and November 3, 2012.
9
As explained in response to
Question 1, seven of those advertisements for which Free Speech will spend $7,166.66
expressly advocate the election or defeat of a clearly identified Federal candidate. Free
Speech will thus spend 72 percent of its budget on express advocacy communications.

9
The information that Free Speech presents regarding its proposed activities in its advisory opinion request
focuses almost exclusively on its planned spending on communications. Accordingly, its spending on
federal campaign activity is the Commissions primary consideration in this matter. The Commission,
however, ordinarily considers a groups overall conduct when determining political committee status. See
Supplemental E&J, 72 FR at 5601-02, 5605.
Exhibit C
AO 2012-11
Page 24
Draft B

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
See Attachment A. Free Speechs planned spending on express advocacy
communications demonstrates that its major purpose is the nomination or election of
federal candidates.
The conclusion that Free Speech has as its major purpose federal campaign
activity is further supported by the fact that even its non-express advocacy spending will
attack or oppose a clearly identified Federal candidate. As a result, Free Speech will
engage only in activities that are campaign related. For example, the Environmental
Policy advertisements attack President Obama for supporting certain legislation and
oppose him because he cannot be counted on to represent Wyoming values; the
Health Care Crisis advertisements attack President Obama for his support of
socialized medicine and oppose him because he pushed ahead to make socialized
medicine a reality; the Gun Control Facebook advertisement attacks President Obama
for supporting gun control and opposes him by saying to viewers Dont trust him; and
the Ethics advertisement attacks President Obama because he nominates political
elites who havent paid [their taxes] and opposes him because of his taxing behavior.
Communications like these attacking or opposing a clearly identified Federal candidate
but not constituting express advocacy indicate that a group has federal campaign
activity as its major purpose. See, e.g., MUR 5753 (League of Conservation Voters 527)
Factual and Legal Analysis at 2 (including in major purpose analysis advertisements
supporting or opposing candidates, some of which contained express advocacy); MURs
5511 and 5525 (Swiftboat Veterans and POWs for Truth) Factual and Legal Analysis at 3
(same); MURs 5511 and 5525 (Swift Boat Veterans and POWs for Truth) Conciliation
Agreement 15, 25, 35 (same). Free Speech will spend $2,833.33, or 28% of its budget
Exhibit C
AO 2012-11
Page 25
Draft B

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
on such communications in addition to its spending on express advocacy
communications. See Attachment A.
Taking into account all of its spending, Free Speech will spend its entire budget
on Federal campaign activity. Accordingly, Free Speech is a political committee. See,
e.g., Supplemental E&J at 5605 (summarizing the Commissions findings regarding
several examples where spending activities evidenced major purpose, including one
example where 50-75% of the political budget . . . was intended for the Presidential
election); MUR 5754 (MoveOn.org Voter Fund) Conciliation Agreement 11-13
(approximately 68 percent of total disbursements in the 2004 election cycle were spent on
television advertising opposing a Federal candidate regarding his record on campaign
issues and criticiz[ing] his leadership); MURs 5511 and 5425 (Swift Boat Veterans
and POWs for Truth) Conciliation Agreement 35 (91 percent of reported disbursements
were spent on advertisements and direct mail attacking or expressly advocating the defeat
of a Federal candidate).
All of Free Speechs proposed advertising would occur during the 2012
Presidential election year, with the last advertisements scheduled to run on November 3,
just three days before the 2012 general election. This provides further evidence of its
major purpose. Cf. Supplemental E&J, 72 FR at 5605 (concluding evidence of major
purpose included that an organization ha[d] effectively ceased active operations after the
November 2004 election).
(2) Free Speechs Fundraising Solicitations
Several of Free Speechs planned fundraising appeals provide further support for
the conclusion that it is a political committee. As explained above, two of Free Speechs
Exhibit C
AO 2012-11
Page 26
Draft B

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21

four proposed donation requests would solicit contributions for the purpose of
influencing any Federal election. Free Speechs plans to raise money from those
solicitations further evidences that its major purpose is Federal campaign activity. See,
e.g., Supplemental E&J at 5605 (describing solicitations by four different groups found
by the Commission to be political committees). Free Speechs other two solicitations do
not clearly indicate that the funds raised will be used to advocate the election or defeat of
candidates, but each criticize a clearly identified Federal candidate and explicitly refer to
the election.


C. Conclusion
Based on the above analysis of Free Speechs overall conduct that is, its
spending on Federal campaign activity compared to its overall activity, as well as its
fundraising solicitations and other statements the Commission concludes that Free
Speech has as its major purpose the nomination or election of a candidate. Accordingly,
Free Speech will have to register as a political committee if it receives contributions
aggregating in excess of $1,000 or makes expenditures aggregating in excess of $1,000
during a calendar year. Contributions would include funds received in response to the
War Chest and Make Them Listen donation requests and expenditures would include
funds spent on the six proposed advertisements that contain express advocacy. Free
Speech would have to file a Statement of Organization (FEC Form 1) within 10 days of
such time, and thereafter file periodic reports with the Commission. See 2 U.S.C. 432,
433, 434; 11 CFR 102.1, 102.2, 102.7, 104.
10


10
Because Free Speech would make only independent expenditures and other independent political
advertisements, and make no contributions or coordinated expenditures, the Acts limits on contributions
from individuals the only type of person from whom Free Speech indicates it wishes to raise funds are
Exhibit C
AO 2012-11
Page 27
Draft B

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23

This response constitutes an advisory opinion concerning the application of the
Act and Commission regulations to the specific transaction or activity set forth in your
request. See 2 U.S.C. 437f. The Commission emphasizes that, if there is a change in any
of the facts or assumptions presented, and such facts or assumptions are material to a
conclusion presented in this advisory opinion, then the requestors may not rely on that
conclusion as support for its proposed activity. Any person involved in any specific
transaction or activity which is indistinguishable in all its material aspects from the
transaction or activity with respect to which this advisory opinion is rendered may rely on
this advisory opinion. See 2 U.S.C. 437f(c)(1)(B). Please note the analysis or
conclusions in this advisory opinion may be affected by subsequent developments in the
law including, but not limited to, statutes, regulations, advisory opinions, and case law.
The cited advisory opinions are available on the Commissions Web site,
www.fec.gov, or directly from the Commissions Advisory Opinion searchable database
at http://www.fec.gov/searchao.

On behalf of the Commission,




Caroline C. Hunter
Chair


not applicable. See SpeechNow.org v. FEC, 599 F.3d 686, 696 (D.C. Cir. 2010) (en banc) (striking down
limitations on contributions as applied to such groups).
Exhibit C
AO 2012-11
Page 28
Draft B

1
2

Attachment A
FreeSpeech'sPlanned
Spending

Radioadsbudget $1,000
Newspaperadsbudget $500
Facebookads $500
TVads $8,000
Total $10,000

1.RadioAds
Spendingon
Express
Advocacy
Communications
Spendingon
Communications
thatAttackor
Oppose
Candidates
Other
Spending

Environmentalpolicy $333.33 $333.33
Financialreform $333.33 $333.33
Healthcarecrisis $333.33 $333.33
Total $1,000.00 $666.66 $333.33 $0.00

2.NewspaperAds

Financialreform $250.00 $250.00
Healthcarecrisis $250.00 $250.00
Total $500.00 $250.00 $250.00 $0.00

3.FacebookAds

Guncontrol $250.00 $250.00
Environmentalpolicy $250.00 $250.00
Total $500.00 $250.00 $250.00 $0.00

4.TVAds

Guncontrol $2,000.00 $2,000.00 $0.00
Ethics $2,000.00 $2,000.00
Budgetreform $2,000.00 $2,000.00
Educatedvoter $2,000.00 $2,000.00
Total $8,000.00 $6,000.00 $2,000.00 $0.00

GrandTotal $10,000.00 $7,166.66 $2,833.33 $0.00
71.67% 28.33% 0.00%
3
Exhibit C
AO 2012-11
Page 29
Draft B

1
2
3



Exhibit C
. n_.t.
1
'
0
A DOCUMENT NO. 12-J4-B
FEDERAL ELECTION COMMISSION
Washington, DC 20463 -,
- .
April26, 2012
AGENDA ITEM
MEMORANDUM
TO:
FROM:
Subject:
The Commission
Anthony Herman 0 +:\-
General Counsel \- J
For Meeting of -l,t
SUBMITTED LATE
Kevin Deeley \'+
Acting Associate General Counsel { R
Amy
Assistant General Counsel
Neven F. Stipanovic ;!\.jf5
Attorney
Erin R. Chlopak E F-'-

1
;fS
Attorney
Allison T. Steinle
Attorney
AO 2012-11 (Free Speech) (Draft C)
Attached is a proposed draft of the subject advisory opinion. We have been asked
to have this draft placed on the Open Session agenda for April26, 2012.
Attachment
Exhibit D
1 ADVISORY OPINION 2012-11
2
3 Benjamin T. Barr Esq.
4 Stephen R. Klein, Esq.
DRAFTC
5 Wyoming Liberty Group
6 1740 H Dell Range Blvd. #459
7 Cheyenne, WY 82009
8
9 Dear Messrs. Barr and Klein:
10 We are responding to your advisory opinion request on behalf of Free Speech,
11 concerning the application of the Federal Election Campaign Act, as amended (the
12 "Act"), and Commission regulations to Free Speech's proposed plan to finance certain
13 advertisements and ask for donations to fund its activities.
14 The Commission concludes that: one ofFree Speech's proposed advertisements
15 would expressly advocate the election or defeat of a clearly identified Federal candidate;
16 (2) none of the proposed donation requests would be solicitations of"contributions"; and
17 (3) Free Speech's proposed activities would not require it to register and report with the
18 Commission as a political committee.
19 Background
20 The facts presented in this advisory opinion are based on your letter received on
21 February 29,2012, and your email received on March 9, 2012.
22 Free Speech describes itself as "an independent group of individuals which
23 promotes and protects free speech, limited government, and constitutional
24 accountability." Bylaws, Art. II. It is an unincorporated nonprofit association formed
25 under the Wyoming Unincorporated Nonprofit Association Act, WYO. STAT. ANN. 17-
Exhibit D
AO 2012-11
Page2
Draft C
1 22-101 to 115 (2012), and a "political organization" under 26 U.S.C. 527 of the Internal
2 Revenue Code.
1
It currently has three individual members.
3 Free Speech will not make any contributions to Federal candidates, political
4 parties, or political committees that make contributions to Federal candidates or political
5 parties. Nor is Free Speech affiliated with any group that makes contributions. Free
6 Speech also will not make any coordinated expenditures.
2
7 Free Speech plans to run 11 advertisements, which it describes as "discuss[ing]
8 issues concerning limited government, public policy, the dangers of the current
9 administration, and their connection with candidates for federal office." Free Speech will
10 run these advertisements in various media, including radio, television, the Internet, and
11 newspapers. Free Speech currently plans to run the following ads, which are described
12 more fully in response to question 1 below.
13 Radio Advertisements
14 Free Speech plans to spend $1 ,000 on three advertisements to be aired on local
15 radio station KGAB AM in Cheyenne, Wyoming. These advertisements, which Free
16 Speech calls "Environmental Policy," "Financial Reform," and "Health Care Crisis," will
1
The Internal Revenue Code defines a political organization as "a party, committee, association, fund, or
other organization (whether or not incorporated) organized and operated primarily for the purpose of
directly or indirectly accepting contributions or making expenditures, or both, for [the tax-]exempt
function" of "influencing or attempting to influence the selection, nomination, election, or appointment of
any individual to any Federal, State, or local public office or office in a political organization," or the
election or selection of presidential or vice presidential electors. 26 U.S.C. 527(e).
2
Free Speech's bylaws prohibit its members, officers, employees, and agents from engaging in activities
that could result in coordination with a Federal candidate or political party. Bylaws, Art. VI. And
members, officers, employees and agents have a duty to "ensure the independence of all speech by the
Association about any candidate or political party ... in order to avoid coordination." Bylaws, Art. VI,
Sec. 3.
Exhibit D
AO 2012-11
Page 3
Draft C
1 be aired 60 times between April1 and November 3, 2012. Free Speech currently plans to
2 allocate its budget evenly among the three advertisements, spending $333.33 for each.
3 Newspaper Advertisements
4 Free Speech plans to spend $500 on two advertisements that will appear in the
5 Wyoming Tribune Eagle on May 12 and May 27,2012. Free Speech plans to spend $250
6 on each advertisement. The advertisements- "Financial Reform" and "Health Care
7 Crisis" - will include pictures as well as text.
8 Internet Advertisements
9 Free Speech plans to spend $500 on two advertisements that will appear on
10 Facebook. The advertisements will appear for a total of"200,000 impressions on
11 Facebook within Wyoming network" between April1 and April 30, 2012. Free Speech
12 plans to spend $250 on each advertisement. The two advertisements, entitled "Gun
13 Control" and "Environmental Policy," will include pictures as well as text.
14 Television Advertisements
15 Free Speech plans to spend $8,000 on four advertisements that will appear on the
16 local television network KCWY in Cheyenne, Wyoming. The advertisements will appear
17 approximately 30 times between May 1 and November 3, 2012. Free Speech plans to
18 spend $2,000 on each of the four advertisements. The advertisements are entitled "Gun
19 Control," "Ethics," "Budget Reform," and "An Educated Voter Votes on Principle."
20 In total, Free Speech plans to spend $10,000 to run the advertisements described
21 above. Free Speech "would like to speak out in similar ways in the future."
22 Free Speech has identified one individual donor willing to give it $2,000 or more,
23 and would like to ask other individuals to donate more than $1,000 "to help support its
Exhibit D
AO 2012-11
Page4
Draft C
1 speech." Free Speech would also draw upon funds from its three members to pay for
2 advertisements costing more than $2,000. Free Speech, however, will not accept
3 donations from individuals who are foreign nationals or Federal contractors. Free Speech
4 plans to ask for donations from individuals through four separate donation requests,
5 which are described in response to question 2 below.
6 Questions Presented
7 1. Will Free Speech's proposed advertisements be "express advocacy" and
8 subject to the Act and Commission regulations?
9 2. Will Free Speech's proposed donation requests be solicitations subject to the
1 0 Act and Commission regulations?
11 3. Will the activities described in this advisory opinion request require Free
12 Speech to register and report to the Commission as a political committee?
13
14 Legal Analysis and Conclusions
15
16 Question 1. Will Free Speech's proposed advertisements be "express advocacy" and
17 subject to the Act and Commission regulations?
18 One of the communications proposed by Free Speech would be deemed "express
19 advocacy" under 11 C.P.R. 100.22(a).
20 The concept of"express advocacy" originated in Buckley v. Valeo, 424 U.S. 1
21 (1976). There, the Court held the Act's definition of expenditure to be vague and
22 overbroad.
3
As the Court explained, "[i]n its efforts to be all-inclusive, ... the provision
23 raises serious problems of vagueness, particularly treacherous where, as here, the
3
The Act's original disclosure provisions for independent expenditures were originally written more
broadly, to cover any expenditure made "for the purpose of ... influencing" the nomination or election of
candidates for federal office.
Exhibit D
AO 2012-11
Page 5
Draft C
1 violation of its terms carries criminal penalties and fear of incurring those sanctions may
2 deter those who seek to exercise protected First Amendment rights." !d. at 76-77
3 (footnote omitted). To cure these defects, the Supreme Court construed "expenditure" to
4 reach only funds used for communications that "expressly advocate the election or defeat
5 of a clearly identified candidate." !d. at 80. It explained that "expressly advocate"
6 required "explicit words of advocacy of election or defeat of a candidate." !d. at 43
7 (emphasis added). The Court explained that this "explicit words of advocacy"
8 construction means "communications containing express words of advocacy of election
9 or defeat, such as 'vote for,' 'elect,' 'support,' 'cast your ballot for,' 'Smith for
10 Congress,' 'vote against,' 'defeat,' 'reject."' !d. at 44, n.52.
11 In direct response to the Court's decision in Buckley, Congress amended the Act
12 in 1976 to define "independent expenditure" as "an expenditure by a person advocating
13 the election or defeat of a clearly identified candidate .... " 2 U.S.C. 431 (17) (1976).
14 This was in tum defined to mean communications that included "express advocacy."
15 This change "reflect[ ed] the Court's opinion in the Buckley case,"
4
and specifically
16 "define[ d) 'independent expenditure' to reflect the definition ofthat term in the Supreme
17 Court's decision in Buckley v. Valeo."
5
4
Federal Election Campaign Act Amendments of 1976, Report to Accompany H.R. 12406 (Report No. 94-
917), 94th Cong., 2d Session, at 82 (Minority Views).
5
Federal Election Campaign Act Amendments of 1976, Report to Accompany S. 3065 (Report No. 94-
677), 94th Cong., 2d Session (Mar 2, 1976) at 5. Congress changed the independent expenditure reporting
requirements "to conform to the independent expenditure reporting requirements of the Constitution set
forth in Buckley v. Valeo with respect to the express advocacy of election or defeat of clearly identified
candidates." Joint Explanatory Statement of the Committee of Conference on the 1976 amendments to the
FECA at 40. See also Congressional Record (Senate), S 6364 (May 3, 1976) (Sen. Cannon explained that
the legislation was "codifying a number of the Court's interpretations of the campaign finance laws .... ").
Exhibit D
AO 2012-11
Page6
Draft C
1 The post-Buckley congressional amendments happened before the Supreme Court
2 ruled in FEC v. Massachusetts Citizens For Life ("MCFL "), 479 U.S. 238 (1986). In
3 MCFL, the Court relied on Buckley, and explained that "in order to avoid problems of
4 overbreadth, the Court held that the term 'expenditure' encompassed 'only funds used for
5 communications that expressly advocate the election or defeat of a clearly identified
6 candidate,"' !d. at 248-49 (citing Buckley, 44 U.S. at 80) and reiterated footnote 52 of
7 Buckley, which defined express advocacy to mean words such as "vote for," "elect," and
8 "support," "cast your ballot for," "Smith for Congress," "vote against," "defeat," "reject."
9 !d. at 249 (citing Buckley, 44 U.S. at 44, n.52). The Court then maintained the
10 construction of the statutory language it had used in Buckley: "[T]he definition of an
11 expenditure under 441 b necessarily incorporates the requirement that a communication
12 'expressly advocate' the election of candidates." !d. at 248.
13 Factually, MCFL concerned a newsletter distributed by an incorporated non-profit
14 issue group, that stated "Vote Pro Life," and next to which was a list of candidates and
15 indications as to whether those candidates were pro-life. Specifically, in September 1978
16 (prior to the September primary elections), MCFL distributed a "Special Edition"
17 newsletter. The front page ofthe newsletter stated "EVERYTHING YOU NEED TO
18 KNOW TO VOTE PRO-LIFE" followed by a statement to the reader that "[n]o pro-life
19 candidate can win in November without your vote in September." MCFL, 479 U.S. at
20 243. '"VOTE PRO-LIFE' was printed in large bold-faced letters on the back page, and a
21 coupon was provided to be clipped and taken to the poll to remind voters of the name of
22 the 'pro-life' candidates." !d. The newsletter also included a disclaimer that stated "this
23 special election edition does not represent an endorsement of any particular candidate."
Exhibit D
AO 2012-11
Page 7
Draft C
1 /d. The newsletter included a listing of all the state and federal candidates that would be
2 on the Massachusetts primary ballot, "and identified each one as either supporting or
3 opposing what MCFL regarded as the correct position on three issues." !d. Candidates
4 with a "y" next to their names were those who supported MCFL's issues; candidates with
5 a "n" by their names opposed MCFL's issues; and an asterisk was placed next to the
6 names of"incumbents who had made a 'special contribution to the unborn in maintaining
7 a 100% pro-life voting record in the state house by actively supporting MCFL
8 legislation." !d. at 243-44. Thirteen candidates' pictures were included in the newsletter
9 and all "13 had received a triple 'y' rating, or were identified either as having a 100%
10 favorable voting record or as having stated a position consistent with that ofMCFL. No
11 candidate whose photograph was featured had received even one 'n' rating." !d. at 244.
12 In holding that the newsletter contained express advocacy, the Court noted that
13 "Buckley adopted the 'express advocacy' requirement to distinguish discussion of issues
14 and candidates from more pointed exhortations to vote for particular persons ... Just such
15 an exhortation appears in the 'Special Edition."' !d. at 249. The Court noted that the
16 newsletter ''urges voters to vote for 'pro-life' candidates" and "also identifies and
17 provides photographs of specific candidates fitting that description." !d. The Court
18 concluded that the newsletter "provides in effect an explicit directive: vote for these
19 (named) candidates. The fact that the message is marginally less direct than 'Vote for
20 Smith' does not change its essential nature. The Edition goes beyond issues discussion to
21 express electoral advocacy." !d.
22 Subsequent to MCFL, the Ninth Circuit ruled in FEC v. Furgatch, 807 F.2d 857
23 (9th Cir. 1987). There, the Court held that"[ s ]peech may only be termed 'advocacy' if it
Exhibit D
AO 2012-11
Page 8
Draft C
1 presents a clear plea for action, and ... it must be clear what action is advocated [i.e.,]
2 ... a vote for or against a candidate ... " !d. at 864. Factually, Furgatch concerned anti-
3 Carter newspaper ads that ran about a week before the 1980 election. !d. at 858. The
4 advertisement was captioned "DON'T LET HIM DO IT." /d. It made a number of
5 specific references to the upcoming election and the election process (e.g., "The President
6 of the United States continues to degrade the electoral process"; "He [the President]
7 continues to cultivate the fears, not the hopes of the voting public"; "If he succeeds the
8 country will be burdened with four more years of incoherencies, ineptness and illusion, as
9 he leaves a legacy of low-level campaigning"). /d. The advertisement specifically
10 mentioned current and former opponents of the President (e.g., "[The President's]
11 running mate outrageously suggested Ted Kennedy was unpatriotic"; "[T]he President
12 himself accused Ronald Reagan of being unpatriotic"). Id. After criticizing Carter for
13 his campaign tactics, the advertisement stated: "If he succeeds the country will be
14 burdened with four more years ofincoherencies, ineptness and illusion, as he leaves a
15 legacy oflow-level campaigning. DON'T LET HIM DO IT!" !d.
16 The Ninth Circuit held that the express advocacy threshold will be met only if a
17 communication "when read as a whole, and with limited reference to external events, [is]
18 susceptible of no other reasonable interpretation but as an exhortation to vote for or
19 against a specific candidate." Furgatch, 807 F .2d at 864. The court further held that
20 "[t]his standard can be broken into three main components":
21 "[S]peech is 'express' ... if its message is unmistakable and
22 unambiguous, suggestive of only one plausible meaning";
Exhibit D
1
2
3
AO 2012-11
Page9
Draft C
"[S]peech may only be termed 'advocacy' if it presents a clear plea for
action"; and
"[Speech] must be clear what action is advocated. Speech cannot be
4 'express advocacy of the election or defeat of a clearly identified
5 candidate' when reasonable minds could differ as to whether it encourages
6 a vote for or against a candidate .... "
7 ld. The court then emphasized that "if any reasonable alternative reading of speech can
8 be suggested, it cannot be express advocacy." !d.
9 In analyzing the advertisement, the court said that "the words we focus on are
10 'don't let him.' They are simple and direct. 'Don't let him' is a command .... the only
11 way to not let him do it was to give the election to someone else." !d. at 864-65. The
12 Ninth Circuit held that the action urged was thus a vote against a candidate, and the
13 advertisement constituted express advocacy.
6
That this clear plea for action requirement
14 was central to the holding of Furgatch was made clear by the Ninth Circuit in California
15 Pro-Life Council, Inc. v. Getman, 328 F.3d 1088 (9th Cir. 2003): "Furgatch ... presumed
16 express advocacy must contain some explicit words of advocacy." !d. at 1098 (emphasis
17 in original).
6
In Furgatch, the court set out a three-part standard for express advocacy, the second part of which is
absent from Section 100.22(b). Furgatch, 807 F.2d at 864 ("First, even if it is not presented in the clearest,
most explicit language, speech is 'express' for present purposes if its message is unmistakable and
unambiguous, suggestive of only one plausible meaning. Second, speech may only be termed 'advocacy' if
it presents a clear plea for action, and thus speech that is merely informative is not covered by the Act.
Finally, it must be clear what action is advocated. Speech cannot be 'express advocacy of the election or
defeat of a clearly identified candidate' when reasonable minds could differ as to whether it encourages a
vote for or against a candidate or encourages the reader to take some other kind of action.") (emphasis
added).
Exhibit D
AO 2012-11
Page 10
Draft C
1 In the wake of MCFL, Furgatch, and other cases, the Commission amended its
2 regulatory definition of"express advocacy." As the Commission explained at the time,
3 the reworking of its regulations was done for clarity, and that the modifications simply
4 "reworded" the prior regulation "to provide further guidance on what types of
5 communications constitute express advocacy of clearly identified candidates," and added
6 "a somewhat fuller list of examples" of the "expressions set forth in Buckley." See
7 Explanation and Justification for Final Rules on Express Advocacy ("Express Advocacy
8 E&J"), 60 Fed. Reg. 35291, 35293 (July 6, 1995). Section 1 00.22(a) defines "expressly
9 advocating" as any communication that:
10 Uses phrases such as 'vote for the President,' 're-elect your Congressman,'
11 'support the Democratic nominee,' 'cast your ballot for the Republican challenger
12 for U.S. Senate in Georgia,' 'Smith for Congress,' 'Bill McKay in '94,' 'vote Pro-
13 Life' or 'vote Pro-Choice' accompanied by a listing of clearly identified
14 candidates described as Pro-Life or Pro-Choice,' 'vote against Old Hickory,'
15 ''defeat' accompanied by a picture of one or more candidate(s), 'reject the
16 incumbent,' or communications of campaign slogan(s) or individual word(s)
17 which in context can have no other reasonable meaning that to urge the election or
18 defeat of one or more clearly identified candidate(s), such as posters, bumper
19 stickers, advertisements, etc. which say 'Nixon's the One,' 'Carter '76,'
20 'Reagan/Bush' or 'Mondale!'
21
22 The Commission also added a new section to define "express advocacy." At the
23 time, the Commission made clear that the new section was not an expansive test, but
24 instead was merely providing "clarity" to reflect the Ninth Circuit's decision in FEC v.
25 Furgatch. The Commission did not adopt a standard that would have included
26 "suggestions to take actions to affect the result of an election," id. at 35294, but instead
27 adopted Section 1 00.22(b ), which defines "expressly advocating" as any communication
28 that:
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1 When taken as a whole and with limited reference to external events, such as the
2 proximity to the election, could only be interpreted by a reasonable person as
3 containing advocacy of the election or defeat of one or more clearly identified
4 candidate(s) because: (1) the electoral portion ofthe communication is
5 unmistakable, unambiguous, and suggestive of only one meaning; and (2)
6 reasonable minds could not differ as to whether it encourages actions to elect or
7 defeat one or more clearly identified candidate(s) or encourages some other kind
8 ofaction.
9
10 The Express Advocacy E&J does not elaborate on what sort of "external factors"
11 are to be considered, only that they ought to be "pertinent." !d. at 35294. It does say that
12 such contextual considerations will be done on a "case by case" basis. !d. at 35295. It
13 also explains that the Commission declined to adopt a specified number of days before an
14 election within which a communication could be deemed express advocacy. !d. The
15 Express Advocacy E&J also said that the rules of 1 00.22(b) "do not affect pure issue
16 advocacy, such as attempts to create support for specific legislation, or purely educational
17 messages." !d. Moreover, "the subjective intent of the speaker is not a relevant
18 consideration because Furgatch focuses the inquiry on the audience's reasonable
19 interpretation of the message." !d. Finally, the Express Advocacy E&J said that
20 "[c]ommunications discussing or commenting on a candidate's character, qualifications,
21 or accomplishments are considered express advocacy ... if, in context, they have no
22 other reasonable meaning than to encourage actions to elect or defeat the candidate in
23 question." !d. The Commission did "not establish a time frame in which these
24 communications are treated as express advocacy. Thus, the timing of the communication
25 would be considered on a case-by-case basis." !d.
26 Section 1 00.22(b) has been deemed unenforceable by a number of courts.
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1 See Va. Soc 'y for Human Life v. FEC, 263 F.3d 379, 392 (4th Cir. 2001) ("VSHL")
2 (holding that 100.22(b) "violates the First Amendment" because "(t]he regulation goes
3 too far because it shifts the determination of what is 'express advocacy' away from the
4 words 'in and of themselves' to "the unpredictability of audience interpretation" (quoting
5 FEC v. Christian Action Network, Inc.; 110 F.3d 1049, 1051, 1057 (4th Cir. 1997)));
6 Maine Right to Life Comm., Inc. v. FEC ("MRLC'), 914 F. Supp. 8, 13 (D. Maine 1996),
7 aff'd per curiam, 98 F.3d 1 {lst Cir.l996), cert. denied, 522 U.S. 810 (1997) (Section
8 1 00.22(b) held "contrary to the statute as the United States Supreme Court and the First
9 Circuit Court of Appeals have interpreted it and thus beyond the power of the FEC");
10 Right to Life of Dutchess Co., Inc. v. FEC, 6 F. Supp. 2d 248 (S.D.N.Y. 1998) (finding
11 "that 11 C.F .R. 1 00.22(b )' s definition of' express advocacy' is not authorized by
12 FECA, 2 U.S.C. 441b, as that statute has been interpreted by the United States Supreme
13 Court in MCFL and Buckley v. Valeo.").
14 Thereafter, the Commission stated publicly that it would not enforce Section
15 100.22(b) in either the First or Fourth Circuits.
7
However, the Commission continued to
16 enforce that section in all other circuits, under the under the doctrine of intercircuit
17 nonacquiescence, which provides that an agency need not modify a nationwide regulation
18 in response to an adverse ruling of one or more of the circuit courts of appeals. See
7
On September 22, 1999, the Commission decided by a vote of 6-0 to "formally confirm the Commission's
position that because 11 C.F.R. 100.22(b) has been found invalid by the United States Court of Appeals
for the First Circuit, and has in effect been found invalid in the United States Court of Appeals for the
Fourth Circuit, it cannot and will not be enforced in those circuits, unless and until the law of those circuits
changed or overruled."
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Samuel Estreicher & Richard L. Revesz, Nonacquiescence by Federal Administrative
2 Agencies, 98 Yale L.J. 679 (Feb. 1989).
8
3 Several courts outside the First and Fourth Circuits have also rejected a more
4 expansive view of express advocacy. As noted above, the Southern District of New York
5 held in Right to Life of Dutchess Co., "that 11 C.F.R. 100.22(b)'s definition of 'express
6 advocacy' is not authorized by FECA, 2 U.S.C. 44lb, as that statute has been
7 interpreted by the United States Supreme Court in MCFL and Buckley v. Valeo." 6 F.
8 Supp at 254.
9 Additionally, in FEC v. Survival Education Fund, Inc., 1994 WL 9658 (S.D.N.Y.
10 1994) (unreported), aff'd in part, rev 'din part, 65 F.3d 285 (2d Cir. 1995), the district
11 court determined that a mailer which included a two-page letter criticizing the Reagan
12 Administration's policies in Central America, called for protests outside of the
13 Republican National Convention, and provided an "Anti-War Ballot" which listed a
14 check-box next to the word "no" and several purported administration policies did not
15 constitute express advocacy. !d.
16 Likewise, in FEC v. Christian Coalition, 52 F. Supp.2d 45 (D.D.C. 1999), the
17 D.C. District Court rejected the FEC's view that a number of election-related materials
18 contained express advocacy.
9
For example, a mailer entitled "Reclaim America" was not
19 express advocacy. The mailer stated that "the 1994 elections for Congress ... will give
8
On September 22, 1999, the Commission decided by a vote of 6-0 to "formally confirm the Commission's
position that because 11 C.F.R. 100.22(b) has been found invalid by the United States Court of Appeals for
the First Circuit, and has in effect been found invalid in the United States Court of Appeals for the Fourth
Circuit, it cannot and will not be enforced in those circuits, unless and until the law of those circuits
changed or overruled."
9
The court used the standard announced by the Ninth Circuit in FEC v. Furgatch, the case upon which
Section 100.22(b) is based.
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1 Americans their first opportunity to deliver their verdict on the Clinton Presidency. If
2 America's 40 million eligible Christian voters are going to make our voices heard in the
3 elections this November ... we must stand together, we must get organized, and we must
4 start now," that "America's 40 MILLION Christian voters have the potential to make
5 sweeping changes in our government . . . IF Christians get to the ballot box and IF
6 Christians have accurate information about how their elected representatives are voting,"
7 and that the mailing was intended to give Christians a "chance to make the politicians in
8 Washington feel the power of the Christian vote." !d. at 57.
9 The court also concluded that a "Congressional Scorecard" produced by the
10 Christian Coalition which listed how federal office holders voted on several issues,
11 indicated the organization's preferred position on those issues, and provided an overall
12 score measuring that Congressman's level of agreement with the Christian Coalition did
13 not constitute express advocacy where the scorecard indicated that it was "designed to
14 give Christian voters the facts they need to hold their Congressmen accountable." !d. at
15 57-58.
16 Subsequently, Congress passed the Bipartisan Campaign Reform Act of2002,
17 colloquially called McCain-Feingold.
10
Senators McCain and Feingold first introduced
18 legislation in 1997 to block the use of corporate and union general treasury funds for
19 "unregulated electioneering disguised as 'issue ads."' See 143 Cong. Rec. S 159 (Jan. 21,
20 1999); 143 Cong. Rec. S10106-12 (Sep. 29, 1997). This early version of the McCain-
21 Feingold bill "addressed electioneering issue advocacy by redefining 'expenditures'
22 subject to FECA's strictures to include public communications at any time of year, and in
10
Pub. L. 107-155, 116 Stat. 81 (Mar. 27, 2002).
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1 any medium, whether broadcast, print, direct mail, or otherwise, that a reasonable person
2 would understand as advocating the election or defeat of a candidate for federal office."
3 See 143 Cong. Rec. S10107,10108.
4 Eventually, McCain-Feingold's sponsors abandoned their effort to redefine
5 "expenditure" and instead proposed the regulation of"electioneering communications,"
6 "in contrast to the earlier provisions of the ... bill." See Brief of Defendants at 50-51,
7 McConnell v. FEC, 251 F. Supp.2d 176 (D.D.C. 2003). In part to respond to concerns
8 raised by the bill's opponents about its constitutionality, Senators Snowe and Jeffords
9 proposed an amendment to McCain-Feingold to draw a bright line between so-called
10 "genuine" issue advocacy and a narrowly defined category of television and radio
11 advertisements, broadcast in proximity to federal elections, "that constitute the most
12 blatant form of[unregulated] electioneering." 144 Cong. Rec. 8906, S912 (Feb. 12,
13 1998). The earlier provisions ofthe McCain-Feingold bill that sought to tinker with the
14 meaning of "express advocacy" were dropped.
11
15 Senator Snowe explained that this approach had been developed in consultation
16 with constitutional experts, to come up with 'clear and narrowing wording' which strictly
17 limited the reach of the legislation to TV and radio advertisements that mention a
18 candidate within 60 days of a general election, or 30 days of a primary, so as specifically
19 to avoid the pitfalls of vagueness identified in Buckley and MCFL. Senator Snowe
20 explained that the provision specifically did not alter prior law regarding express
11
Congress is currently considering legislation that would, inter alia, modify the definition of "independent
expenditure" to include both express advocacy and the functional equivalent of express advocacy.
Disclosure of Information on Spending on Campaigns Leads to Open and Secure Elections Act of 2012 or
DISCLOSE 2012 Act, H.R. 4010, ll2
1
b Cong. 2.
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1 advocacy, and that the bill specifically did not apply a "no other reasonable meaning,"
2 test of the sort found in Furgatch or Section 1 00.22(b) because it was too ambiguous and
3 vague:
4 We are concerned about being substantially too broad and too overreaching. The
5 concern that I have is it may have a chilling effect. The idea is that people are
6 designing ads, and they need to know with some certainty without inviting the
7 constitutional question that we have been discussing today as to whether or not
8 that language would affect them as whether or not they air those ads. That is why
9 we became cautious and prudent in the Senate language that we included and did
10 not include Furgatch [the case upon which 1 00.22(b) is based] for that reason
11 because it invites ambiguity and vagueness as to whether or not these ads
12 ultimately would be aired or whether somebody would be willing to air them
13 because they are not sure how it would be viewed in terms ofbeing unmistakable
14 and unambiguous. That is the concern that I have. 147 Cong. Rec. S2711 (March
15 22, 2001).'2
16
17 This legislative history shows that Congress did not alter the construction given
18 the Act in Buckley and MCFL. Moreover, when Congress revises a statute, its decision to
19 leave certain sections unamended (as it did in McCain-Feingold) constitutes at least
20 acceptance, if not explicit endorsement, of the preexisting construction and application of
21 the unamended terms. See Cottage Sav. Ass'n v. Comm 'r of Internal Revenue, 499 U.S.
22 554, 562 (1991).
23 A number of plaintiffs, including Senator Mitch McConnell, challenged McCain-
24 Feingold, and argued that the new electioneering communication provisions were
12
Senator McCain, the principal sponsor of the entire bill, was of the view that both Buckley and MCFL
limited the pertinent parts of the Act to express advocacy: "With respect to ads run by non-candidates and
outside groups, however, the [Supreme) Court indicated that to avoid vagueness, federal election law
contribution limits and disclosure requirements should apply only if the ads contain 'express advocacy."'
148 Cong. Rec. S2141 (March 20, 2002). McCain-Feingold itself makes clear that independent
expenditures and electioneering communications cannot be the same thing. See 2 U.S.C. 434(f)(3)(B)(ii)
("The term 'electioneering communication' does not include-a communication which constitutes an
expenditure or an independent expenditure under this Act.").
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1 unconstitutional because the statute went beyond Buckley 's "express advocacy''
2 limitation. In its initial response, the FEC said:
3 It is plain to see from [Buckley] that the freedom claimed by plaintiffs "to spend
4 as much as they want to promote candidate(s] and [their] view[s]" so long as they
5 "eschew expenditures that in express terms advocate the election or defeat" of
6 those candidates, arose from Buckley's "exacting interpretation of the statutory
7 language" in FECA "necessary to avoid unconstitutional vagueness," and not as
8 an absolute guarantee that emanates directly from the First Amendment itself.
9
10 See Opposition Brief of Defendants at 59, McConnell v. FEC, 540 U.S. 93, No. 02-0582
11 (2003). The FEC also made clear MCFL imposed the Buckley construction on the post-
12 Buckley legislative amendments:
13 [A]s the Court explained [in MCFL], MCFL merely applied the same rationale
14 relied upon in Buckley- namely, curing vagueness in statutory language that
15 defined "expenditures" in terms of a speaker's "purpose to influence an election"
16 - and placed a "similar" express advocacy construction on FECA 441 b.
17
18 Id. at 60.
19
20 And finally, the FEC was unequivocal that the First Circuit's decision in MRLC
21 turned on the reach of the statute, not on constitutional abstract:
22 [T]he lower courts have repeatedly and accurately described Buckley's express
23 advocacy test as a saving construction of a potentially unconstitutional statute, not
24 itself a standard of constitutional law .... In Right to Life of Duchess Cty., Inc. v.
25 FEC, and Maine Right to Life, Inc. v. FEC, the courts rejected the FEC's
26 regulatory definition of express advocacy insofar as it includes communications
27 that "[ w ]hen taken as a whole ... could only be interpreted by a reasonable
28 person as containing advocacy of the election or defeat of one or more clearly
29 identified candidates(s)." They based their decision on the conclusion that this
30 definition of express advocacy "is not authorized by FECA ... as that statute has
31 been interpreted" by the Supreme Court.
32
33 Id. at61-62.
34
35 One member of the three judge panel agreed with the FEC. She reviewed the
36 cases that held Section 1 00.22(b) unenforceable and endorsed the result in those cases-
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1 that the FEC lacked the authority to redefine a statutory test that only Congress or the
2 Supreme Court could redefine. She said Section 100.22(b) was "plagued with vague
3 terms" that place the speaker at the "mercy of the subjective intent of the listener."
4 McConnell v. FEC, 251 F. Supp.2d 176, 601 (D.C. Cir. 2003) (Kollar-Kotelly, J.,
5 memorandum op.).
6 On appeal, the Supreme Court agreed. The Court confirmed that "(t]he narrowing
7 construction adopted in Buckley limited the Act's disclosure requirement to
8 communications expressly advocating the election or defeat of particular candidates."
9 McConnell v. FEC, 540 U.S. 93, 102 (2003). The Court described Buckley's limiting
10 construction of the otherwise vague and thus overbroad statute as "strict," and noted that
11 "the use or omission of 'magic words' ... marked a bright statutory line separating
12 'express advocacy' from 'issue advocacy."' !d. at 126 (emphasis added). Agreeing with
13 the FEC' s arguments, the Court repeatedly emphasized that Buckley was "the product of
14 statutory interpretation rather than a constitutional command." !d. at 191-92 (emphasis
15 added) (noting that the Court in MCFL had previously "confirmed the understanding that
16 Buckley's express advocacy category was a product of statutory construction."). As the
17 Court explained:
18 We concluded that the vagueness deficiencies could "be avoided only by reading
19 [the Act] as limited to communications that include explicit words of advocacy of
20 election or defeat of a candidate. We provided examples of words of express
21 advocacy, such as "vote for," "elect," "support," ... "defeat," [and] "reject," and
22 those examples eventually gave rise to what is now known as the "magic words"
23 requirement.
24
25 /d. at 191 (internal citations omitted). The Court characterized Buckley and MCFL as
26 having drawn a "strict" line, id. at 126, that was "an endpoint of statutory interpretation,
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1 not a first principle of constitutional law" /d. at 190 (emphasis added). In fact, the Court
2 noted that "advertisers [can] easily evade the line by eschewing the use of magic words."
3 Id. at 193. And McConnell made clear that the statutory endpoint remained unchanged:
4 there are at least thirteen instances where McConnell equated the term "express
5 advocacy" with the so-called "magic words" test.
13
Turning to the challenged
6 electioneering communication provision, the Court noted "that a statute that was neither
7 vague nor overbroad would be required to toe the same express advocacy line." /d. at
8 192. The Court found that it did not suffer from the same vagueness that had plagued the
9 definition of"expenditure," and upheld the electioneering communication ban on its face,
10 "to the extent it was the functional equivalent of express advocacy." Id. at 206.
11 Thus, although it upheld the constitutionality ofBCRA's electioneering
12 communications provision, McConnell maintained the statutory construction of
13 "expenditure" set forth in Buckley and MCFL.
14
Numerous circuit courts likewise have
14 held that the express advocacy requirement was not altered by McConnell and remains a
15 viable way to cure an otherwise vague statute. See New Mexico Youth Organized v.
16 Herrera, 611 F.3d 669 (lOth Cir. 2010) ("NYMO"); North Carolina Right to Life, Inc. v.
17 Leake, 525 F.3d 274 (4th Cir. 2008) ("NCRTL"); Center for Individual Freedom v.
18 Carmouche, 449 F.3d 655 (5th Cir. 2006), cert. denied, 549 U.S. 1112 (2007); Anderson
19 v. Spear, 356 F.3d 651 (6th Cir. 2004), cert. denied, Stumbo v. Anderson, 543 U.S. 956
13
McConnell, 540 U.S. at 126 (2 references), 127 (2 references), 190 (2 references), 192, 193 (2
references), 193-94, 216-17, 219. The McConnell dissenting opinion similarly used "express advocacy" to
mean communications that contain the "magic words" of footnote 52 of Buckley. See 540 U.S. at 281, 322.
14
The Commission's Office of General Counsel has in the past made this point. See MUR 5634 (Sierra
Club), GCR #2 at 10 ("McConnell did not involve a challenge to the express advocacy test or its
application, nor did the Court purport to determine the precise contours of express advocacy to any greater
degree than it did in Buckley.)."
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(2004); Am. Civil Liberties Union of Nev. v. Heller, 378 F.3d 979, 985 (9th Cir. 2004).
15
2 Therefore, McConnell did not, sub silentio, overrule cases that held Section 1 00.22(b) to
3 be beyond the Act, nor did it provide support for Section 1 00.22(b ). As a result, VSHL
4 and MRLC are still applicable, and Section 1 00.22(b) should remain unenforceable in the
5 First and Fourth Circuits until the Commission receives further guidance.
6 In 2004, Wisconsin Right to Life brought a suit challenging McCain-Feingold's
7 electioneering communication ban, specifically alleging that certain ads it wished to run
8 that concerned judicial nominations were not the functional equivalent of express
9 advocacy, as set forth in McConnell. Several years later, the Supreme Court agreed that
10 McCain-Feingold could not constitutionally prohibit the advertisements at issue
11 regarding judicial nominations. FEC v. Wisconsin Rightto Life, Inc., 551 U.S. 449
12 (2007). According to the Court, although this statute was not vague, it was still
15
Likewise, in Shays v. FEC, 528 F.3d 914 (D.C. Cir. 2008) ("Shays Ilr'), the D.C. Circuit repeatedly
equated express advocacy with a so-called "magic words" requirement. For example, the court said:
In Buckley v. Valeo, 424 U.S. I (1976), the Supreme Court, invoking constitutional
avoidance, construed FECA's limitation on expenditures to apply only to funding of
communications that "express[ly] . . . advocate the election or defeat of a clearly
identified candidate for federal office," i.e., those that contain phrases such as '"vote for,'
'elect,' 'support,' 'cast your ballot for,' 'Smith for Congress,' 'vote against,' 'defeat,' [or]
'reject."' Thus, by avoiding these "magic words," organizations unable to make
"expenditures"-such as corporations and unions- could fund so-called "issue ads" that
were "functionally identical" to campaign ads and just as effective.
!d. (citing Buckley, 424 U.S. at 43-44 n.52; McConnell, 540 U.S. at 126; and MCFL, 479 U.S. at
249) (internal citations omitted) (emphasis added). See also, SpeechNow.org v. FEC, 599 F.3d
686 (D.C. Cir. 2010) (upholding the requirement that SpeechNow.org file as a political committee,
but making clear that the reporting regime was triggered by Buckley's "magic words" standard,
stating:
'Express advocacy' is regulated more strictly by the FEC than so-called 'issue ads' or
other political advocacy that is not related to a specific campaign. In order to preserve
the FEC's regulations from invalidation for being too vague, the Supreme Court has
defined express advocacy as communications containing express words of advocacy of
election or defeat, such as 'vote for,' 'elect,' 'support,' 'cast your ballot for,' 'Smith for
Congress,' 'vote against,' 'defeat,' 'reject.').
!d. at 689, n.l.
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overbroad, as it captured non-campaign advertisements. As explained by Chief Justice
2 Roberts, McConnell had limited the reach of the statutory ban to the functional equivalent
3 of express advocacy. WRTL, 551 U.S. at 456. The Chief Justice further explained that in
4 addition to the statutory criteria defining electioneering communication, an advertisement
5 came within the reach of the statute's then-existing ban on corporate- and union-funded
6 electioneering communications "only if the ad is susceptible of no reasonable
7 interpretation other than as an appeal to vote for or against a specific candidate. !d. at
8 469-70.
9 In considering the matter, a number of Justices made clear that express advocacy
10 still meant express words of advocacy, a standard left unchanged by McConnell. For
11 example, in his concurring opinion, Justice Scalia stated this directly when describing
12 what the Court did in Buckley, and he further added that he did not believe the
13 Constitution allows a broader interpretation: "If a permissible test short of the magic-
14 words test existed, Buckley would surely have adopted it." !d. at 495 (Scalia, J.
15 concurring in part and concurring the judgment). Chief Justice Roberts, in response to
16 Justice Scalia, agreed with Justice Scalia's premise that Buckley established a bright line
1 7 express magic words test, but instead explained that his appeal to vote test is not in
18 conflict with Buckley. According to the Chief Justice, the appeal to vote test serves a
19 different purpose than the express advocacy test, because Buckley's so-called magic
20 words requirement was a product of statutory construction, not a constitutional limit on
21 regulation. !d. at 474, n. 7. Justice Souter, writing in dissent, also characterized the
22 express advocacy test as a magic words standard by acknowledging that MCFL "held that
23 the prohibition [on corporate and union expenditures] applied 'only to expenditures for
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1 communications that in express terms advocate the election or defeat of a clearly
2 identified candidate for federal office'" and that "'[E]xpress terms,' in tum, meant what
3 had already become known as 'magic words,' such as 'vote for,' 'elect,' 'support,' 'cast
4 your ballot for,' 'Smith for Congress,' 'vote against,' 'defeat,' 'reject." !d. at 513
5 (Souter, J. dissenting) (internal citations omitted).
6 Subsequent to WRTL, Citizens United, a non-profit corporation organized under
7 Section 501(c) of the Internal Revenue Code, sued the Commission. It had produced a
8 movie, entitled "Hillary- The Movie," and wished to air the movie on pay-for-view
9 cable television. The Court determined that the movie was an electioneering
10 communication that was the functional equivalent of express advocacy, since it "calls
11 Senator Clinton 'Machiavellian,' ... asks whether she is 'the most qualified to hit the
12 ground running if elected President,' ... and the narrator reminds viewers that 'a vote for
13 Hillary is a vote to continue 20 years of a Bush or a Clinton in the White House."' !d. at
14 890. Nonetheless, the Court held that the movie could not be banned. Importantly, no
15 party argued that "Hillary the Movie" contained express advocacy and, thus, constituted
16 an independent expenditure. The Court also turned back an as-applied challenge to the
17 McCain-Feingold electioneering communication reporting obligations. !d. at 916.
18 Most recently, the United States District Court for the Eastern District of Virginia
19 held that two ads were the functional equivalent of express advocacy and, thus, could
20 come within 11 C.F.R. 100.22(b). This case is on appeal before the United States Court
21 of Appeals for the Fourth Circuit. See Real Truth About Obama, Inc. v. FEC, 796 F.
22 Supp. 2d 736,749-50 (E.D. Va. 2011) appeal docketed, No. 11-1760 (4th Cir. argued
23 Mar.21,2012).
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1 ***
2 As noted above, the FEC has, in the past, applied Section 1 00.22(b) in
3 jurisdictions outside the First and Fourth Circuits under the doctrine of intercircuit
4 nonacquiescence. This doctrine is the obverse of the general rule that a decision of a
5 circuit court of appeals is not binding on a sister court. See, e.g, Holland v. Nati 'I
6 Mining Ass 'n, 309 F.3d 808, 815 (D.C. Cir. 2002). However, this rule is not absolute. In
7 fact, if a circuit court has found unlawful "a rule of broad applicability," the usual result
8 "is that the rule is invalidated, not simply that the court forbids its application to a
9 particular individual." Lujan v. Nat'! Wildlife Fed'n, 497 U.S. 871,913 (1990)
10 (Blackmun, J ., dissenting, but expressing the view of all justices on this question); see
11 also Harmon v. Thornburgh, 878 F.2d 484,495 n.21 (D.C. Cir. 1989) ("When a
12 reviewing court determines that agency regulations are unlawful, the ordinary result is
13 that the rules are vacated-not that their application to the individual petitioners is
14 proscribed.").
15 It appears the Commission has only applied the doctrine of intercircuit
16 nonacquiescence to this regulation. By contrast, in Shays v. FEC, 337, F. Supp. 2d 28
17 (D.D.C 2004) ("Shays f'), after the district court struck down a regulation excluding
18 internet communications from the definition of "public communication," rather than
19 engage in nonacquiescence, the Commission revised its regulation. And when the D.C.
20 Circuit struck down five Commission regulations in EMILY's List v. FEC, rather than
21 engage in nonacquiescence, the Commission excised the regulations at issue. Similarly,
22 after Shays v. FEC, 528 F.3d 914 (D.C. Cir. 2008) ("Shays !If'), SpeechNow.org v. FEC,
23 599 F.3d 686 (D.C. Cir 2010), and Carey v. FEC, 2011 WL 2322964 (D.D.C. 2011), the
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1 Commission applied a decision regarding its regulations nationwide, rather than merely
2 in the D.C. Circuit.
3 Applying Section 1 00.22(b) in some circuits but not others would subject
4 nationally broadcast political advertisements to inconsistent regulatory standards.
16
This
5 would, in tum, frustrate a fundamental purpose of the Act--ensuring a uniform campaign
6 finance system.
17
7 Since intercircuit nonacquiescence (1) has only been applied in the context of
8 Section 1 00.22(b ); (2) has not been applied in subsequent instances; and (3) should not be
9 applied to rules broad applicability-like those regarding the First Amendment and its
10 interplay with Federal campaign finance law, which involves the potential regulation of
11 speech on a nationwide I evel-Section 1 00.22(b) should no longer be enforced outside
12 the First and Fourth Circuits on the basis of intercircuit nonacquiescence until the
13 Commission receives further guidance. And, as noted above, neither should Section
14 1 00.22(b) be enforced within the First and Fourth Circuits without further judicial or
15 legislative instruction.
16 The Supreme Court's decision in WRTL does not affect the applicability of
17 Section 100.22(b).
18
Chief Justice Roberts, in his controlling opinion, limited the then-
16
The Commission notes that the use of advertising mediums that provide national coverage is becoming
more and more commonplace. People and groups are turning to mediums such as the internet with the use
ofFacebook ads and Google ads, as well as national cable media buys to reach larger audiences with their
messages. These mediums provide a low cost, effective way for groups to reach national audiences.
17
To effectuate this purpose, the Act contains a broad preemption clause. See 2 U.S.C. 453.
18
Neither does McConnell v. FEC, 540 U.S. 93 (2003). While the Court did state that "the express
advocacy limitation, in both the expenditure and the disclosure contexts, was the product of statutory
interpretation rather than a constitutional command," it did so in the context of facially upholding a
separate legal provision-the electioneering communications provision. McConnell, 540 U.S. at 191-92.
Importantly, the Court did not overturn the holding in Buckley that the vague and overbroad definition of
Exhibit D
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1 existing prohibition on electioneering communications to communications "susceptible of
2 no reasonable interpretation other than as an appeal to vote for or against a specific
3 candidate" (i.e., "the Roberts test"). WRTL, 551 U.S. at 469-70. While this language
4 bears some similarities to Section 1 00.22(b ), it cannot make Section 1 00.22(b) consistent
5 with the Act because there are critical distinctions between "expenditures" and
6 "electioneering communications."
7 BCRA specifically exempted any "communication which constitutes an
8 expenditure or independent expenditure under this Act" from the definition of
9 "electioneering communication." 2 U.S.C. 434(f)(3)(B)(2)(ii). Since Buckley, only
1 0 communications that contain express advocacy may be deemed expenditures. Thus, as a
11 matter of law, if a communication contains express advocacy, it cannot be considered an
12 electioneering communication. This is the reason the WRTL Court adopted the Roberts
13 test- because, to be consistent with BCRA's exemption of"expenditure" from the
14 definition of"electioneering communication," the same standard used to define an
15 expenditure could not also be used to define an electioneering communication subject to
16 the then-existing ban on corporate and labor union funding. Therefore, if Section
17 1 00.22(b) is equivalent to the Roberts test set forth in WRTL, then Section 1 00.22(b) is
18 inconsistent with the Act.
19
"expenditure" was limited to express advocacy. !d. at 192. Thus, the Commission cannot use McConnell
to revive Section 100.22(b). Rather, it is still bound by Buckley and its limitations on the statutory
definition of "expenditure," as interpreted by VSHL and MLRC.
19
Section 100.22(b) also appears to be much broader than the Roberts test. Chief Justice Roberts
specifically noted that the electioneering communication "test is only triggered if the speech meets the
brightline requirements ofBCRA 203 [the definition of electioneering communications] in the first
place." WRTL, 551 U.S. at 474 n.7. Speech subject to Section 100.22(b) does not, by terms of the
regulation, need to meet similar brightline requirements.
Exhibit D
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1 Given the legal history of Section 1 00.22(b ), Section 1 00.22(b) should not be
2 applied to a communication to determine whether it contains express advocacy. Rather,
3 under current legal conditions, Section 100.22(a) is the sole means by which a
4 communication may be deemed an independent expenditure.
5 ***
6 The "Environmental Policy" Radio Advertisement
7 President Obama opposes the Government Litigation
8 Savings Act. This is a tragedy for Wyoming ranchers and a
9 boon to Obama's environmentalist cronies. Obama cannot
10 be counted on to represent Wyoming values and voices as
11 President. This November, call your neighbors. Call your
12 friends. Talk about ranching.
13
14 The "Environmental Policy" radio advertisement does not constitute express
15 advocacy under Section 1 00.22( a). It contains no "magic words" and does not associate a
16 candidate with an issue and then ask viewers to base their votes on that issue. Nor does
17 the advertisement contain an electoral slogan. Rather, this is an issue ad describing what
18 the speaker believes are the harmful effects on ranching resulting from President
19 Obama's opposition to a particular bill. It asks listeners to call neighbors and friends to
20 talk about ranching. While the communication does include a reference to November-
21 the month in which the presidential election will be held- that, by itself, is not an
22 electoral exhortation. In fact, the communication asks its listeners to talk, not vote.
23 Merely including the month November in an otherwise issue-focused communication
24 does not transform it into express advocacy under Section 100.22(a).
25 The "Financial Reform" Radio and Newspaper Advertisements
26 President Obama supported the financial bailout of Fannie Mae and
27 Freddie Mac, permitting himself to become a puppet of the banking and
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1 bailout industries. What kind of person supports bailouts at the expense of
2 average Americans? Not any kind we would vote for and neither should
3 you. Call President Obama and put his antics to an end.
20
4
5 The "Financial Reform" advertisements, which Free Speech proposes to air on the
6 radio and run in newspapers, contain express advocacy as defined by Section 100.22(a).
7 This section is based in part on the Supreme Court's decision in MCFL, which as noted
8 above, involved a flyer that included the phrase "EVERYTHING YOU NEED TO
9 KNOW TO VOTE PRO-LIFE" and contained an exhortation to "VOTE PRO- LIFE"
10 after identifying candidates who were the pro-life. The Court held the flyer was express
11 advocacy. Here, the "Financial Reform" ad states that "President Obama supported the
12 financial bailout of Fannie Mae and Freddie Mac," and then asks "What kind ofperson
13 supports bailouts at the expense of average Americans?" It answers the questions with
14 "[n]ot any kind of person that we would vote for and neither should you." Thus,
15 "Financial Reform" is express advocacy under MCFL' s formulation of express advocacy:
16 it identifies a candidate (President Obama) with a position on an issue (bailouts) and then
17 states that the viewers should vote against those who take that issue position ("What kind
18 of person supports bailouts ... ? Not any kind we would vote for and neither should
19 you."). Such a formulation, according to MCFL, "provides in effect an explicit directive:
20 vote for these (named) candidates. The fact that this message is marginally less direct
21 than 'Vote for Smith' does not change its essential nature." MCFL, 479 U.S. at 249.
22 Moreover, this conclusion is not altered by the final sentence: "Call President
23 Obama and put his antics to an end." The ad contains two different statements directed at
20
The script for the radio version of the Financial Reform advertisement is the same as the text of the print
version. The only difference between the two, besides the format, is the newspaper advertisement's
inclusion of a full-page picture of President Obama.
Exhibit D
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1 the viewer: (1) "Not any kind we would vote for and neither should you;" and (2) the
2 statement "Call President Obama and put his antics to an end." These are two different
3 statements that make two different points; however, the addition of the statement, "Call
4 President Obama and put his antics to an end," does not negate the fact that the ad
5 contains express advocacy under Section 100.22(a). This is similar to MCFL, where the
6 Court held that a "disclaimer" stating "[t]his special election edition does not represent an
7 endorsement of any particular candidate" did not "negate [the] fact" that the flyer
8 contained express advocacy. MCFL, 470 U.S. at 249.
9 The ""Health Care Crisis" Radio and Newspaper Advertisements
I 0 Script: President Obama supports socialized medicine, but
11 socialized medicine kills millions of people worldwide.
12 Even as Americans disapproved ofObamaCare, he pushed
13 ahead to make socialized medicine a reality. Put an end to
14 the brutality and say no to socialized medicine in the
15 United States?
1
16
17 The "Health Care Crisis" advertisements, which Free Speech proposes to air on
18 the radio and run in newspapers, do not constitute express advocacy under Section
19 1 00.22(a). It lacks any words of advocacy that would constitute express advocacy under
20 either Buckley or MCFL, and it does not include any electoral slogans. Thus, it makes no
21 electoral references but, rather, calls on viewers to "say no to socialized medicine in the
22 United States." While it does reference President Obama in an unfavorable manner,
23 merely mentioning a candidate in a negative (or a positive) light does not transform an
24 otherwise issue-oriented advertisement into express advocacy.
21
Like the script for the radio and print versions of the "Financial Reform" advertisements, the script for
the two versions of the "Health Care Crisis" advertisements is the same. The only difference between the
two advertisements, besides the format, is the newspaper advertisement's inclusion of a "[f]ull picture of a
family picture tom in half."
Exhibit D
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1 The "Gun Control" Facebook Advertisement
2 (Picture of handgun, 110 pixels wide by 80 pixels tall)
3 (Title: Stand Against Gun Control)
4 Obama supports gun control. Don't trust him. Support
5 Wyoming state candidates who will protect your gun rights.
6
7 The "Gun Control" advertisements, which Free Speech proposes to publicize on
8 Facebook, do not constitute express advocacy. The advertisement does not contain words
9 of advocacy like those listed in Section 1 00.22(a). Instead, it criticizes President
10 Obama's support of gun control and exhorts viewers to "[s]upport Wyoming state
11 candidates." Again, like "Health Care Crisis," mentioning a Federal candidate in an
12 unfavorable manner does not, by itself, cause a communication to come within Section
13 100.22(a).
14 The "Environmental Policy" Face book Advertisement
15 (Picture of a Wyoming ranch, 110 pixels wide by 80 pixels
16 tall)
17 (Title: Learn About Ranching)
18 Obama's policies are a tragedy for Wyoming ranchers, and
19 he does not represent our values. This November, learn
20 about ranching.
21
22 The "Environmental Policy" Facebook advertisement does not constitute express
23 advocacy. The advertisement does not contain words of advocacy like those listed in
24 Section 1 00.22(a). And though the communication does include a reference to November,
25 that does not convert an otherwise issue-oriented advertisement into express advocacy.
26 The Gun Control Television Advertisement
Audio:
Guns save lives.
Video:
Newspaper clippings with
headlines describing self-
defense with firearms fade in,
Exhibit D
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Draft C
That's why all Americans
should seriously doubt the
qualifications of Obama, an
ardent supporter of gun
control.
This fall, get enraged, get
engaged, and get educated.
And support Wyoming state
candidates who will protect
_y_9ur _gtl_n ri_g}l.ts.
piling up one atop another.
Clippings dissolve to a picture
of President Obama, and one
newspaper headline below
him: "President Obama
defends attorney general
regarding A TF tactics (LA
Times, Oct. 6, 2011)"
Dissolves to a picture of the
Wyoming state flag, panning
down to the Wyoming Capitol
Building
2 The "Gun Control" television advertisement does not constitute express advocacy.
3 The advertisement does not contain words of advocacy relating to a Federal candidate
4 like those listed in Section 1 00.22(a). While it does state that "all Americans should
5 seriously doubt the qualifications of Obama, an ardent supporter of gun control," it calls
6 on viewers to support Wyoming state candidates "who will protect your gun rights."
7 Thus, the only call to action is for support of state, not Federal, candidates. And like the
8 "Environmental Policy" communications, the inclusion of the temporal "this fall" would
9 not transform this advertisement into express advocacy because it otherwise does not
10 include without any "magic words" or electoral slogans, at least with respect to Federal
11 candidates.
12 The "Ethics" Television Advertisement
Audio:
Who is President Obama?
Video:
Picture of President Obama
shaking hands with Hugo
Chavez.
Exhibit D
1
AO 2012-11
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Draft C
He preaches the importance of
high taxes to balance the
budget, but nominates political
elites who haven't paid theirs.
He talks about budget and tax
priorities, but passes a blind
eye to nominees who don't
contribute their fair share.
Call President Obama and tell
him you don't approve of his
taxing behavior.
Fade to another picture of
Obama giving State of the
Union, superimposed "Obama
Aims $1.4 Trillion Tax
Increase at Highest Earners
(San Francisco Chronicle, Feb.
14, 2011)"
Cut to picture on left side of
screen of Secretary of Treasury
Timothy Geithner giving
testimony, superimposed
"Geithner apologizes for not
paying taxes (CBS News, Feb.
18, 2009)"
Picture fades in on right side of
screen ofTom Daschle,
superimposed "Tax Woes
Derail Daschle's Bid for
Health Chief (NPR, Feb. 3,
2009)"
Fade to picture of President
Obama and Michelle Obama
enjoying themselves in
Hawaii.
2 The "Ethics" television advertisement does not constitute express advocacy.
3 The advertisement does not contain words of advocacy like those listed in Section
4 100.22(a). It contains neither magic words nor electoral slogans. Instead, the
5 advertisement criticizes President Obama based on statements about his "budget and tax
6 priorities" and his nominees' asserted lack of compliance with their tax obligations. It
7 then exhorts viewers to "[c]all President Obama and tell him you don't approve ofhis
8 taxing behavior." In short, the advertisement contains no electoral references and, thus,
9 is beyond the reach of Section 100.22(a).
Exhibit D
AO 2012-11
Page 32
Draft C
1 The Budget Reform Television Advertisement
2
AUDIO:
Congresswoman Lummis
supported the Repeal
Amendment, which would
have restored fiscal sanity to
our federal debt.
Congresswoman Lummis is
brave in standing against the
political elite and deserves
your support. Make your
voice heard.
Do everything you can to
support Congresswoman
Lummis this fall and work
toward fiscal sanity_.
Video:
Picture of Representative
Lummis, superimposed "Tea
Party Pushes Amendment to
Veto Congress (AOL News,
Dec. 1, 2010)"
Small videos of Representative
Lummis fade in, speaking on
news programs, meeting with
people, etc.
Wyoming flag fades in the
background, returning to
original picture of Rep.
Lummis.
3 The "Budget Reform" television advertisement does not constitute express
4 advocacy. Although the advertisement does state "support Congresswoman Lummis,"
5 the advertisement does not come within the reach of Section 1 00.22(a), since the support
6 sought is policy-driven, not electoral (e.g., support her "this fall and work toward fiscal
7 sanity"). No election is explicitly referenced, nor is Lummis ever identified as a
8 candidate. In other words, merely using "support" in a communication does not, by
9 itself, tum an otherwise issue-oriented advertisement into express advocacy. And
10 although the ad includes a reference to "this fall," it is used in the context of
11 Congresswoman Lummis's "work toward fiscal sanity" and, thus, does not turn the use of
12 the word "support" into electoral advocacy.
13 The Educated Voter Votes on Principle Television Advertisement
I Audio: I Video:
Exhibit D
I
AO 2012-11
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Across America, millions of
citizens remain uninformed
about the truth of President
Obama.
Obama, a President who palled
around with Bill Ayers.
Obama, a President who was
cozy with ACORN.
Obama, a President destructive
of our natural rights.
Real voters vote on principle.
Remember this nation's
principles.
Picture of President Obama
shaking hands with Hugo
Chavez.
Picture of Bill Ayers in
Weather Underground days,
superimposed "Bill Ayers
Dishes on Hosting a
Fundraiser for Barack Obama
(Big Government, Nov. 29,
2011)."
"House votes to Strip Funding
for ACORN (Fox News, Sept.
17, 2009)"
Video of an ATF raid, fade to
a video of TSA scanning
individuals in line for airport.
Fades to still shot of the Bill of
Rights, superimposed
"Remember this nation's
_princiQI.es."
2 The "Educated Voter Votes on Principle" advertisement does not constitute
3 express advocacy. The advertisement mentions "real voters" who "vote on principle"
4 and then follows with a call to action to "[r]emember this nation's principles."
5 Nevertheless, the advertisement does not expressly state which candidate such voters
6 should vote for, nor do the references to "principle" and "this nation's principles" provide
7 explicit directions about how "real voters" should vote, even if one concludes such
8 directions are implied. Thus, unlike in MCFL, where the communication clearly listed
9 certain candidates as pro-life and then exhorted the reader to "Vote Pro-Life," here, the
10 advertisement does not clearly tie President Obama to any "principle." Again, the
Exhibit D
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Draft C
1 communication may imply that "real voters" should vote against President Obama, but
2 MCFL requires something more- a clear association between a candidate and an issue
3 and then an exhortation to vote on the basis of that issue. That does not exist here. Thus,
4 the terms used in "Principle" do not constitute express advocacy under Section 100.22(a).
5
6 Question 2. Will Free Speech 's proposed donation requests be solicitations subject to the
7 Act and Commission regulations?
8 No. For the reasons stated below, none of the proposed donation requests will
9 constitute solicitations nor would any money received as a result of these requests be
10 considered contributions unless the money is converted into expenditures.
11 Under Commission regulations, "[a]ll public communications ... by any person
12 that solicit any contribution" are required to include disclaimers that include the identity
13 of the person making the solicitation and whether a candidate, authorized committee of a
14 candidate, or an agent of either authorized the solicitation. 11 C.P.R. 110.11(a)(3), (b).
15 A public communication is "a communication by means of any broadcast, cable, or
16 satellite communication, newspaper, magazine, outdoor advertising facility, mass
17 mailing, or telephone bank to the general public, or any other form of general public
18 political advertising." 11 C.P.R. 100.26. Exempted from the definition are
19 "communications over the Internet, except for communications placed for a fee on
20 another person's Web site." !d.
21 In FEC v. Survival Education Fund, 65 F .3d 285, 295 (2d Cir. 1995) ("SEF'), the
22 Second Circuit held that a written solicitation indicating that money received in response
23 to a solicitation will be spent to elect or defeat a Federal candidate must carry disclaimers
Exhibit D
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1 informing the public of whether the organization is coordinating with a candidate or his
2 agents. Id. at 295. Although the court did not limit its determination to a finding of
3 express advocacy, it stated that a solicitation "may still fall within the reach of 441 d( a) if
4 it contains solicitations clearly indicating that the contributions will be targeted to the
5 election or defeat of a clearly identified candidate for federal office." Jd.
6 The material at issue in SEF was overwhelmingly electoral in nature. It included
7 numerous electoral statements (e.g., "Vote Peace in '84"); allusions to the consequences
8 of the 1984 presidential election (e.g., "Americans who will be voting in November need
9 to know the facts about how four more years of Reagan leadership will affect our nation
10 and the world."); and the group's intended use of the money received in response to the
11 communication (e.g., "your special election year contribution will help us communicate
12 your views to hundreds of thousands of members of the voting public, letting them know
13 why Ronald Reagan and his anti-people policies must be stopped."). !d. at 288-89
14 (emphasis in the original). The court held that these types of statements left "no doubt
15 that the funds contributed would be used to advocate President Reagan's defeat at the
16 polls, not simply to criticize his policies during the election year." !d. at 295. Thus, the
17 SEF court concluded the communication required a disclaimer under 2 U.S.C. 441d.
18 In addition to requiring disclaimers on solicitations, the Act defines the term
19 "contribution" to include "any gift, subscription, loan, advance, or deposit of money or
20 anything of value made by any person for the purpose of influencing any election for
21 Federal office." 2 U.S.C. 431(8)(A)(i); see also 11 C.F.R. 1 00.52(a). The Act requires
22 "any person" who "solicits any contribution through any broadcasting station, newspaper,
23 magazine, outdoor advertising facility, mailing, or any other type of general public
Exhibit D
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Draft C
1 political advertising" to include a specified disclaimer in the solicitation. 2 U.S.C.
2 441d(a);seealso 11 C.F.R. 110.ll(a)(3).
3 In Buckley, the Court narrowed the statutory term "contribution" to encompass
4 only (1) donations to candidates, political parties, or campaign committees; (2)
5 expenditures made in coordination with a candidate or campaign committee; (3)
6 donations given to other persons or organizations but "earmarked for political purposes."
7 Buckley at 24, n.78. In order to avoid the "hazards of uncertainty" regarding the meaning
8 of "earmarked for political purposes," the Second Circuit interpreted the phrase to include
9 only donations "that will be converted to expenditures subject to regulation under
10 FECA." SEF, 65 F.3d at 295.
11 In addressing Survival Education Fund's concerns that "[b ]ecause [they] in some
12 sense use all contributions 'for political purposes,' they contend that they will be at a loss
13 to know when a solicitation triggers FECA disclosure requirements and subjects them to
14 a potential civil penalty," the court stated that "[t]he only contributions 'earmarked for
15 political purposes' with which the Buckley Court appears to have been concerned are
16 those that will be converted to expenditures subject to regulation under FECA. Thus,
17 Buckley's definition of independent expenditures that are properly within the purview of
18 FECA provides a limiting principle for the definition of contributions in 431 (8)(A)(i),
19 as applied to groups acting independently of any candidate or his agents and which are
20 not 'political committees' under FECA." !d. at 294-95. The court also said a request for
21 funds is a "solicitation" if it "leaves no doubt that the funds contributed would be used to
22 advocate [a candidate's election or] defeat at the polls, not simply to criticize his policies
23 during the election year." !d. at 295.
Exhibit D
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1 SEF's holding served as the basis for a Commission regulation, no longer extant,
2 that stated that "[a] gift, subscription, loan, advance, or deposit of money or anything of
3 value made in response to any communication is a contribution to the person making the
4 communication if the communication indicated that any portion of the funds received will
5 be used to support or oppose the election of a clearly identified Federal candidate." 11
6 C.P.R. 100.57(a) (repealed 2010). This provision was struck down in EMILY's List v.
7 FEC, 581 F.3d 19 (D.C. Cir. 2009). Importantly, as noted above, SEFwas a disclosure
8 case-it did not hold that money received from a solicitation would become contributions
9 merely based on their receipt. Rather, the money received only becomes a contribution
10 when it is used for expenditures. SEF, 65 F.3d at 295.
11 Therefore, while SEF may be relied upon to determine whether requests for
12 money are solicitations under the Act, its holding cannot be used to support the
13 proposition that all money received in close proximity to a solicitation may be deemed
14 contributions. Thus, money received by Free Speech in response to or at a time
15 proximate to the dissemination of a solicitation does not become a contribution,
16 potentially triggering political committee status, unless Free Speech converts the money
17 into expenditures.
18 Finally, if Free Speech were to disseminate a solicitation indicating that a portion
19 of the funds received in response will be used to advocate the election or defeat of a
20 Federal candidate and if some of those funds are actually converted into expenditures, it
21 would not necessarily mean that all funds raised in response to the request would be
22 "contributions" subject to the limitations, prohibitions, or reporting obligations of the
23 Act. The Commission lacks the statutory authority to make such a presumption. See
Exhibit D
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Draft C
1 EMILY's List, 581 F.3d at 21 (holding that the statute does not permit the FEC to "treat as
2 hard-money 'contributions' all funds given in response to solicitations indicating that
3 'any portion' of the funds received will be used to support or oppose the election of a
4 federal candidate ... [t]he statutory defect in the rule is that, depending on the particular
5 solicitation at issue, it requires covered non-profits to treat as hard money certain
6 donations that are not actually made 'for the purpose of influencing' federal elections.");
7 see also Funds Received in Response to Solicitations; Allocation of Expenses by Separate
8 Segregated Funds and Nonconnected Committees, 75 Fed. Reg. 13,223 (2010).
22
Again,
9 only the funds converted into expenditures would be considered contributions.
10 ***
11 The "War Chest" Donation Request
12
13 Friends of freedom celebrated when the Supreme Court
14 decided Citizens United. Now, more than ever, we can
15 make the most effective use of your donations this coming
16 fall. Donations given to Free Speech are funds spent on
17 beating back the Obama agenda. Beating back Obama in
18 the newspapers, on the airways, and against his $1 billion
19 war chest.
20
21 This donation request does not require a disclaimer under 2 U.S.C. 441d(a).
22 The donation request indicates that the funds requested will be "spent on beating back the
23 Obama agenda. Beating back Obama in the newspapers, on the airwaves, and against his
24 $1 billion war chest." While the request does mention "this coming fall," "[b ]eating back
25 Obama," and "his $1 billion war chest," such language does not "clearly indicat[ e] that
26 the contributions will be targeted to the election or defeat of a clearly identified candidate
22
All prior Commission matters that relied upon such a theory were invalidated by EMILY's List, and
abandoned by the Commission when it removed Section 100.57 from its regulations, and chose to give
EMILY's List nationwide effect.
Exhibit D
AO 2012-11
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Draft C
1 for federal office." SEF, 65 F.3d at 295. First, "this coming fall" is not inherently
2 electoral. In fact, the request itself provides the meaning for this phrase: that Free Speech
3 will use the donations raised this fall to beat back the Obama agenda. The other language
4 appears in a sentence fragment that expands upon the previous sentence regarding
5 "beating back the Obama agenda." Moreover, Obama is never identified as a candidate,
6 and the phrase "his $1 billon war chest" is not inherently electoral, as it presumably
7 includes funds raised by the Democratic Party generally, funds that can be spend in a
8 variety of ways. Such language is a far cry from the language present in Survival
9 Education Fund, such as: "Vote Peace in '84"; "Americans who will be voting in
10 November need to know the facts about how four more years of Reagan leadership will
11 affect our nation and the world"; "your special election year contribution will help us
12 communicate your views to hundreds of thousands of members of the voting public,
13 letting them know why Ronald Reagan and his anti-people policies must be stopped."
14 Since this donation request does not solicit contributions under the Act, and Free
15 Speech does not propose spending any funds on "expenditures" under the Act, funds
16 raised will not be subject to the limitations, prohibitions or reporting requirements of the
17 Act.
23
23
In the past, the Commission may have considered this sort of donation request to not only require a
disclaimer, but to presumptively require that all funds raised in response to the request to be subject to the
limitations, prohibitions and reporting requirements of the Act. See, e.g., MUR 5487 (Progress for America
Voter Fund), Conciliation Agreement a t ~ ~ 22, 26 (concluding that direct mail pieces using the phrase "help
us promote President Bush's agenda in Pennsylvania with the greatest possible strength between now and
November 1st" solicited contributions because they supposedly "clearly indicate that the funds received
would be targeted to the election of George W. Bush"). The legal theory upon which such determinations
were based was rejected in EMILY's List v. FEC, as noted above, as being unconstitutional and beyond the
Commission's statutory authority. Per the holding of the D.C. Circuit, which the Commission has already
accepted as having nation-wide effect, such matters are no longer good law. See, e.g .. , MUR 5365 (Club
for Growth); MUR 5403 (Americans Coming Together); MUR 5440 (The Media Fund); MUR 5487
(Progress for America Voter Fund); MUR 5511 (Swiftboat Veterans and POWs for Truth); MUR 5542
Exhibit D
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Draft C
1 The "Strategic Speech" Donation Request
2 This fall, 23 Democrat incumbents are up for election in the
3 U.S. Senate. Seven have already decided to retire, but
4 some, like John Tester of Montana, haven't gotten the
5 message. With your donation, we'll strategically speak out
6 against the expansion of government-run healthcare and so-
7 called 'clean energy' boondoggles like Solyndra, which
8 Senators like Tester fully support. It's time to retire failed
9 socialist policies.
10
11 This donation request does not require a disclaimer under 2 U.S.C. 441d(a). The
12 donation request clearly indicates how the funds requested will be spent: by "strategically
13 speak[ing] out against the expansion of government-run healthcare an so-called 'clean
14 energy' boondoggles like Solyndra," which the request claims Senators like Tester
15 support. This point is emphasized by the concluding line, which makes clear it is
16 discussing policy: "It's time to retire failed socialist policies." The donation request lacks
17 language "clearly indicating that the contributions will be targeted to the election or
18 defeat of a clearly identified candidate for federal office." SEF, 65 F.3d at 295. The
19 language used in this donation request is not at all like that present in Survival Education
20 Fund: 'jVote Peace in '84"; "Americans who will be voting in November need to know
21 the facts about how four more years of Reagan leadership will affect our nation and the
22 world"; "your special election year contribution will help us communicate your views to
23 hundreds of thousands of members of the voting public, letting them know why Ronald
24 Reagan and his anti-people policies must be stopped."
25 Since this donation request does not solicit contributions under the Act, and Free
26 Speech does not propose spending any funds on "expenditures" under the Act, funds
(Texans for Truth); MUR 5568 (Empower Illinois Media Fund); MUR 5753 (League of Conservation
Voters 527); MUR 5754 (MoveOn.org Voter Fund).
Exhibit D
AO 2012-11
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Draft C
1 raised will not be subject to the limitations, prohibitions or reporting requirements of the
2 Act.
3 The "Checking Boxes" Donation Request
4
5 'Leading from behind,' President Obama takes advice from
6 socialist staffers, usually choosing from a checklist of
7 oppressive, debt-driving policies without even considering
8 freedom-based and fiscally-conscious alternatives.
9 Checking the right box on the November ballot is
10 important, but like Obama's memos it's just not enough.
11 Take the lead in making the message of Free Speech heard:
12 your donation will inform real American leadership.
13
14 This donation request does not require a disclaimer under 2 U.S.C. 441d(a). The
15 donation request clearly indicates how the funds requested will be spent: "making the
16 message of Free Speech heard" by "inform[ing] real American leadership." Although the
17 donation request includes the phrase "(c]hecking the right box on the November ballot is
18 important," neither that phrase nor the sentence of which it is a part solicits funds. It does
19 not in any way indicate that funds will be used to target the election or defeat of a clearly
20 identified candidate; on the contrary, it can be read as stating that funds will be spent on
21 things unrelated to "checking the right box on the November ballot," such as Free
22 Speech's "message" to "inform real American leadership." Other language in the
23 donation request criticizes Obama's policy choices. The donation request lacks language
24 "clearly indicating that the contributions will be targeted to the election or defeat of a
25 clearly identified candidate for federal office." SEF, 65 F.3d at 295. The language used
26 in this donation request is not at all like that present in Survival Education Fund: "Vote
27 Peace in '84"; "Americans who will be voting in November need to know the facts about
28 how four more years of Reagan leadership will affect our nation and the world"; "your
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1 special election year contribution will help us communicate your views to hundreds of
2 thousands of members of the voting public, letting them know why Ronald Reagan and
3 his anti-people policies must be stopped."
4 Since this donation request does not solicit contributions under the Act, and Free
5 Speech does not propose spending any funds on "expenditures" under the Act, funds
6 raised will not be subject to the limitations, prohibitions or reporting requirements of the
7 Act.
8 The "Make Them Listen" Donation Request
9
10 In 2010, the Tea Party movement ushered in an historic
11 number of liberty-friendly legislators. But President
12 Obama and his pals in Congress didn't get the message:
13 Stop the bailouts. No socialized healthcare. End
14 oppressive taxes. But we won't be silenced. Let's win big
15 this fall. Donate to Free Speech today.
16
17 This donation request does not require a disclaimer under 2 U.S.C. 441d(a).
18 The request arguably references an election, since it claims that a "number of liberty-
19 friendly legislators" were elected in the 2010 mid-term elections. But the request does
20 not clearly reference a future election. Although it does state, "[l]et's win big this fall,"
21 this is not a clear reference to an upcoming election similar to the communication at issue
22 in Survival Education Fund, nor is it a clear statement that any funds raised would be
23 used to target the election or defeat of a clearly identified candidate. When read in the
24 context of the rest of the donation request, winning in the fall is not "clearly indicating
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1 that the contributions will be targeted to the election or defeat of a clearly identified
2 candidate for federal office." SEF, 65 F.3d at 295.
24
3 The request states that neither Obama nor "his pals" in Congress got the message
4 the people sent in 2010: that "bailouts" need to stop, "socialized health care" is
5 unacceptable, and "oppressive taxes" need to come to an end. The request can be read as
6 then saying that although Obama and his allies in Congress still have not heard this
7 message, Free Speech "will not be silenced," and they will continue to advocate in favor
8 of these policy choices. They will continue to do so "this fall," and they hope to "win
9 big" then - which could be read to mean legislative votes in the Congress regarding
10 ending "bailouts," "socialized healthcare" and "oppressive taxes."
11
12 Question 3. Will the activities described in this advisory opinion request require Free
13 Speech to register and report to the Commission as a political committee?
14 No, the activities described in this advisory opinion request will not require Free
15 Speech to register and report to the Commission as a political committee.
16 The Act and Commission regulations define a "political committee" as "any
17 committee, club, association or other group of persons which receives contributions
18 aggregating in excess of $1,000 during a calendar year or which makes expenditures
19 aggregating in excess of$1,000 during a calendar year." 2 U.S.C. 431(4)(A); 11 C.P.R.
20 1 00.5. The Supreme Court construed the term "political committee" to encompass only
24
For example, if the donation request said "let's win big this fall at the ballot box," or "let's win big this
fall on election day," that would bring the request much closer to coming within the reach of the Act as it
was construed by the Second Circuit in SEF.
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1 organizations that are "under the control of a candidate or the major purpose of which is
2 the nomination or election of a candidate." Buckley, 424 U.S. at 79.
25
The Buckley Court
3 added the "major purpose" test out of concern that defining "political committee" only in
4 terms of annual contributions or expenditures "could be interpreted to reach groups
5 engaged purely in issue discussion." Id.
6 The Commission has reiterated Buckley's formulation of the test on a number of
7 occasions. See, e.g., Brief for the Respondents at 5, The Real Truth About Obama, Inc.,
8 v. FEC ("RTAO"), 130 S. Ct. 2371 (U.S. 2010) (No. 09-724) ("Under the major purpose
9 test, an organization will not be regulated as a political committee unless its 'major
10 purpose ... is the nomination or election of a candidate"' (citing Buckley, 424 U.S. at
11 79)), Political Committee Status, Supplemental Explanation and Justification ("2007
12 Political Committee Status Supplemental E&J"), 72 Fed. Reg. 5595, 5597 (Feb. 7, 2007)
13 (the Supreme Court mandated that an additional hurdle was necessary to avoid
14 Constitutional vagueness concerns; only organizations whose ''major purpose'' is the
15 nomination or election of a Federal candidate can be considered "political committees"
16 under the Act" (citing Buckley, 424 U.S. at 79.)). The Commission has not defined or
17 clarified the major purpose test through rulemaking, and instead has opted to consider it
18 on a case-by-case basis. Id. at 5596.
25
Some courts have held that the Buckley major purpose test was the product of statutory interpretation, see
National Organization for Marriage v. McKee, 649 F.3d 34,65 (1st Cir. 2011), cert. denied (Feb. 27,
2012); Human Life of Washington, Inc., v. Brumsickle, 624 F.3d 990 (9th Cir. 2010), cert. denied (Feb. 22,
2011), and thus would constitute the end-point of the Commission's statutory authority. See 2007 Political
Committee Status Supplemental E&J, 72 Fed. Reg. at 5602 (Feb. 7, 2007) ("The major purpose doctrine
did not supplant the statutory 'contribution' and 'expenditure' triggers for political committee status, rather
it operates to limit the reach of the statute in certain circumstances.") (emphasis added).
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1 The Court reaffirmed the major purpose test in MCFL, when it determined that a
2 nonprofit corporation's "central organizational purpose is issue advocacy, although it
3 occasionally engages in activities on behalfofpolitical candidates." 479 U.S. at 252 n.6.
4 The Court noted that "[a]ll unincorporated organizations whose major purpose is not
5 campaign activity, but who occasionally make independent expenditures on behalf of
6 candidates, are subject only to these [independent expenditure reporting] regulations."
26
7 /d. at 252-53. However, if a group's "independent spending become[s] so extensive that
8 the organization's major purpose may be regarded as campaign activity, the corporation
9 would be classified as a political committee." /d. at 262 (citing Buckley, 424 U.S. at 79).
10 The nature and scope of the major purpose test was further examined in FEC v.
11 Malenick, 310 F. Supp. 2d 230,234-36 (D.D.C. 2005) andFECv. GOPAC, Inc., 917 F.
12 Supp 851, 859 (D.D.C. 1996). In those cases, district courts examined the public and
13 non-public statements, as well as the spending and contributions, by particular groups.
14 Subsequent courts, in reviewing state laws governing political committees, have
15 set forth similar fact-based tests to determine a group's major purpose. In NMYO, the
16 Tenth Circuit articulated the resulting test as follows: "There are two methods to
17 determine an organization's 'major purpose': (1) examination of the organization's
18 central organizational purpose; or (2) comparison of the organization's electioneering
19 spending with overall spending to determine whether the preponderance of expenditures
20 is for express advocacy or contributions to candidates." 611 F.3d at 678. Under this test,
26
The phrase "engages in activities on behalf of political candidates" seems to have been used
interchangeably with the term "independent expenditures" Compare MCFL, 479 at 252-53 with id at 252
n.6.
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if either prong is satisfied, then the organization's major purpose is the election or
2 nomination of a candidate.
27
3 The Fourth Circuit similarly held in NCRTL, 525 F.3d at 289:
4 While 'the major purpose' of an organization may be open to
5 interpretation, it provides potentially regulated entities with sufficient
6 direction to determine if they will be designated as a political committee.
7 Basically, if an organization explicitly states, in its bylaws or elsewhere,
8 that influencing elections is its primary objective, or if the organization
9 spends the majority of its money on supporting or opposing candidates,
I 0 that organization is under 'fair warning' that it may fall within the ambit
II of Buckley's test.
12 Thus, a determination of a group's major purpose requires the examination of the
I3 following: (1) a group's central organizational purpose; and (2) a comparison of a
14 group's spending on campaign activities with its spending on activities unrelated to
15 campaigns.
16 Though the Commission has been reluctant to establish a rule or a specific set of
17 factors to be applied when making a major purpose determination, in the 2007 Political
18 Committee Status Supplemental E&J, it did endorse reviewing the same types of
19 information that courts had already utilized in their own major purpose analyses. Thus,
20 by reviewing a group's public and non-public statements, like those reviewed by district
21 courts in Malenick and GOPA C, the Commission can determine the central
22 organizational purpose of a group. And an examination of a group's various types of
23 spending allows the Commission to establish whether that group's "independent spending
24 [has] become so extensive that the organization's major purpose may be regarded as
27
The political committee statutes and regulations at issue in NMYO required disclosure, which the court
contrasted with statutes that limit or prohibit speech. Thus, the court undertook an "exacting scrutiny"
analysis of those statutes and regulations. NMYO, 611 F.3d at 677 (citing Buckley and Doe v. Reed, 130 S.
Ct. 2811 (2010)).
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campaign activity." MCFL, 479 U.S. at 262; see also Supplemental E&J ("The Supreme
2 Court has made it clear that an organization can satisfy the major purpose doctrine
3 through sufficiently extensive spending on Federal campaign activity.").
4 ***
5 According to the budget estimates provided by Free Speech, Free Speech plans on
6 spending $2,000 on radio, newspaper, and internet communications. Depending on funds
7 raised, it has budgeted an additional $8,000 for television ads. Because the Commission
8 has determined that one communication proposed by the requester would constitute
9 express advocacy, the amount paid for such communications could exceed $1,000.
1 0 Assuming that Free Speech does spend more than $1 ,000 on that communication, the
11 Commission must next determine if Free Speech's major purpose is the nomination or
12 election of a candidate.
13 ***
14 A. Central Organizational Purpose
15 To determine a group's purpose, courts have relied primarily on the materials
16 created and utilized by that group. In Malenick, the court reviewed the group's
17 announced goals, brochures, fundraising letters, and express advocacy communications
18 sent to its members, all of which indicated that the major purpose of the group in question
19 was the election ofFederal candidates.
28
310 F. Supp. 2d at 235. In GOPAC, the court
20 predominantly reviewed both letters sent by GOP AC and undisputed discussions that
21 GOPAC had with one of its contributors, none ofwhich indicated that the group's major
28
The court also noted that the record contained the undisputed testimony of the group's primary
donor, who stated that it "was the objective of the whole ... concept to get major donors involved so that
the ideally conservative candidates could be elected." Malenick, 310 F. Supp. 2d at 235.
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1 purpose was the election or nomination of Federal candidates, but rather the election of
2 state candidates.
29
917 F. Supp at 862-65.
3 Importantly, the court in GOPAC rejected reliance on certain other types of
4 proffered evidence. First, the Commission attempted to rely on an audiotape and
5 transcript of a meeting between two unidentified individuals as evidence that support for
6 GOP AC was also support for a particular Federal candidate. Id. at 862. The court
7 determined that, without more, "such a transcript ... probably does not constitute
8 significantly probative material evidence upon which a trier of fact could decide for the
9 [Commission.]" Id. (internal citations and quotations omitted).
1 0 Second, the Commission presented a statement from a magazine article in support
11 of its belief that GOP AC "provid[ ed] a forum for candidates to appear and solicit
12 contributions" and, thus, made in-kind contributions to those candidates. Id. at 864.
13 While also disputing the article itself, the court stated that "a magazine article is not
14 significantly probative nor is it material evidence on which a trier of fact could
15 reasonably find that GOPAC served as a fundraising mechanism for federal candidates."
16 ld.
17 Thus, it appears that official statements from a group, including a group's
18 organizing documents or statement of purpose, or other materials put forth under the
19 group's name, including fundraising documents or press releases, are to be used to
20 determine an entity's central organizational purpose, rather than articles and other
21 statements that do not have the imprimatur of the group in question.
29
The court also cited to deposition testimony and GOPAC's "1989-1990 Political Strategy
Campaign Plan and Budget. GOPAC, 917 F. Supp at 866.
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1 Here, Free Speech's mission states that it "promotes and protects free speech,
2 limited government and constitutional accountability. We operate independently of any
3 candidate and advocate positions on various political issues including free speech,
4 sensible environmental policy, gun rights, land rights, and control over personal health
5 care." Importantly, Article IV of its by-laws specifically prohibits the Association from
6 making "independents expenditures- communications of express advocacy of the
7 election or defeat of a clearly identified candidate for federal office by use of specific
8 words like 'vote for,' 'elect,' 'defeat,' or 'reject."' Thus, its organizational documents
9 clearly establish its intent to both focus on issues and avoid electoral speech.
10 Furthermore, none ofFree Speech's donation requests would be considered
11 solicitations under Commission regulations and SEF. These requests coupled with the
12 group's organizational documents do not indicate that Free Speech's major purpose is the
13 nomination or election of Federal candidates. Rather, the fact that the other solicitations
14 evoke the group's desire to influence the public debate on a range of issues supports the
15 validity of the group's stated purpose.
16 B. Extensive Independent Spending on Behalf of Candidates
17 Review of an entity's organizational documents and official statements does not
18 end the inquiry into major purpose. An examination of a group's major purpose is
19 necessarily an after-the-fact exercise wherein the Commission must determine whether a
20 group properly refrained from registering and reporting as a political committee. Thus,
21 the Commission must determine whether a group's ex ante subjective determination of its
22 major purpose is established ex post by its objectively verifiable statements and spending.
23 Thus, in MCFL, the Supreme Court noted that if a group's "independent spending
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become[s] so extensive that the organization's major purpose may be regarded as
2 campaign activity, the corporation would be classified as a political committee." 479
3 U.S. at 262 (citing Buckley, 424 U.S. at 79).
4 To do so, the Commission must compare a group's spending on campaign
5 activities-specifically, its spending on express advocacy-with its spending on activities
6 unrelated to campaigns.
30
It is not clear the Commission can go much further and
7 consider non-express advocacy communications run by a group that reference a
8 candidate, regardless of time or content, to be evidence of "nomination or election of a
9 candidate." To do so would be going beyond the statutory limitation imposed upon the
10 Act in Buckley. See Buckley, 424 U.S. at 79 ("To fulfill the purposes of the Act
11 ['political committees'] need only encompass organizations that are under the control of a
12 candidate or the major purpose of which is the nomination or election of a candidate.
13 Expenditures of candidates and of 'political committees' so construed can be assumed to
14 fall within the core area sought to be addressed by Congress. They are, by definition,
15 campaign related.") & 80 (noting that by construing "expenditure" "to reach only funds
16 used for communications that expressly advocate the election or defeat of a clearly
30
In doing so, the time period in which the Commission looks when comparing electoral communication
with the total communications of a group is also crucial. Limiting review to short time periods or time
periods other than those utilized by the group in question may provide an incomplete picture of that group's
major purpose. If, for example, a group is created in the middle of a calendar year or election cycle, but it
intends to remain in existence after that time frame ends, refraining from looking outside that artificial time
frame could cause the Commission to judge that group on a schedule other than that used by the group to
determine ex ante its major purpose. Not surprisingly, a group concerned about federal issues would focus
some of its time and spending on Federal elections in the months preceding a general Federal election. The
election constitutes a point in time when many Americans are paying attention to political arguments and
issues. Thus, linking issues to candidates and elections is not surprising. But if a group continues to be
active past that election date, such spending is also evidence of its stated purpose.
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1 identified candidate" ensures that the term only captures "spending that is
2 unambiguously related to the campaign of a particular federal candidate.").
3 Congress has not altered the limitations placed upon the Act by the Court.
4 In fact, legislative history demonstrates that electioneering communications
5 cannot be used to determine political committee status. Senator Jeffords, one of
6 the leading sponsors of the electioneering communication provisions, stated that
7 the provision "will not require such groups [such as National Right to Life
8 Committee or the Sierra Club] to create a PAC or another separate entity." 14 7
9 Cong. Rec. S2813 (Mar. 27, 2001).
31
Thus, organizations remain free to run non-
10 express advocacy communications without having to register and report to the
11 FEC as a political committee.
12 This view of the major purpose test was recently confirmed by the Tenth Circuit,
13 the circuit in which the requestors are located. As noted above, in NMYO, the Tenth
14 Circuit conducted the major purpose analysis by comparing spending on express
15 advocacy or contributions to candidates with total spending to determine whether a
16 preponderance of the latter was spent on the former. In doing so, it relied on both MCFL
31
Sen. Jeffords explained that Congress did not intend to require groups that run electioneering
communications to register as P ACs:
Now let me explain what the Snowe-Jeffords provision will not do: The Snowe-Jeffords
provision will not prohibit groups like the National Right to Life Committee or the Sierra
Club from disseminating electioneering communications;
It will not prohibit such groups from accepting corporate or labor funds;
It will not require such groups to create a PAC or another separate entity;
It will not bar or require disclosure of communications by print media, direct
mail, or other non-broadcast media;
It will not require the invasive disclosure of donors; and
Finally, it will not affect the ability of any organization to urge grassroots
contacts with lawmakers on upcoming votes.
147 Cong. Rec. S2813 (Mar. 27, 2001).
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1 and Colorado Right To Life Committee, Inc .v. Coffman, 498 F.3d 1137, 1152 (lOth Cir.
2 2007), and held that there was no preponderance of spending on express advocacy; in
3 fact, there was no indication of any spending on express advocacy.
32
4 Likewise, the court in GOPA C rejected the use of a fundraising letter as evidence
5 that the group's major purpose was the election or defeat of a candidate because,
6 "[a]Ithough [a Federal candidate] is mentioned by name, the letter does not advocate his
7 election or defeat nor was it directed at [that candidate's] constituents .... Instead, the
8 letter attacks generally the Democratic Congress, of which [the candidate] was a
9 prominent member, and the franking privilege ... and requests contributions." 917 F.
10 Supp. at 863-64. Malenick, in which the court held that the major purpose test was met,
11 only relied on express advocacy communications, rather than communications that
12 merely mentioned a candidate. 310 F. Supp. 2d at 235 (noting the 60 fax alerts that the
13 group sent in which it "advocated for the election of specific federal candidates").
32
Although other Circuits have articulated different versions of the major purpose test, those decisions
were reviewing laws that differed significantly from the Act as construed by Buckley. For example, the
Ninth Circuit reviewed a state statute that imposed political committee status on groups with "a" major
purpose of electing or nominating a candidate. Brumsickle, 624 F.3d 990. By way of comparison, the
federal law looks to "the" major purpose, a distinction that the Fourth Circuit has already deemed critical.
See Leake, 525 F.3d 274. See also McKee, 723 F. Supp.2d 245 (D. Me. 2010), aff'd 649 F.3d 34 (lst Cir.
2011), No. ll-599, cert. denied (Feb. 27, 2012) (upholding state statute, but making clear that the major
purpose test of Buckley was a result of statutory construction). Moreover, the Commission has already
publicly confirmed that major purpose is determined by a comparison of a group's campaign spending to
the remainder of its spending. See Brief of Appellees Federal Election Commission and United States
Department of Justice, RTAO, No. 11-1760 at 71 (4th Cir. 2011) ("As Coffman notes, MCFL 'suggested
two methods to determine an organization's 'major purpose': (1) the examination of the organization's
central organizational purpose; or (2) comparison of the organization's independent [express advocacy]
spending with overall spending."). In other words, the Commission does not subdivide non-campaign
spending. Cf, Brumsickle, 624 F.3d at lOll (in dicta, explained that where one group spends 40% of its
time and resources on political advocacy, 30% of its time and resources producing merchandise, and 30%
of its time and resources on research whereas an otherwise identical group that spends 45% of its time and
resources on political advocacy, 45% of its time and resources on producing merchandise, and 10% of its
time and resources on research, "[p]olitical advocacy is 'the' major purpose for the former group (because
political advocacy commands the largest share of the group's time and resources), but it is just 'a' major
purpose of the latter (because the group expends equal time and resources on political activity and
merchandise production.").
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Similarly, in Real Truth About Obama, the only potential spending the court reviewed
2 were two proposed advertisements that the court deemed to be the functional equivalent
3 of express advocacy. Slip Op. at 24.
4 Moreover, WRTL illustrates that merely mentioning a Federal candidate in a
5 communication does not necessarily make them electoral in nature; in fact, the Court held
6 that the electioneering communications at issue in WRTL were issue advertisements.
7 Thus, using such communications to determine a group's major purpose could result in
8 the Commission doing exactly what Buckley warned against - interpreting the definition
9 of"political committee" "to reach groups engaged purely in issue discussion." WRTL,
10 424 U.S. at 79.
11 In WRTL, the Court rejected the following arguments used to support the
12 proposition that mentioning a Federal candidate in an communication running before the
13 relevant electorate prior to an election constituted the functional equivalent of express
14 advocacy: ( 1) an appeal to contact a candidate is the same as an appeal to elect or defeat
15 that candidate; (2) mentioning a candidate in relation to an issue is a more effective type
16 of electioneering than express advocacy; (3) the fact that the group running the
17 communication had in the past actively opposed the candidate being referenced; (4) the
18 group ran the advertisements at issue in close proximity to elections, rather than near
19 actual legislative votes on issues; (5) the group ran the advertisements when the Congress
20 was not in session; and (6) in its advertisements, the group cross-referenced a website
21 that contained express advocacy. 551 U.S. at 470-73. Since, according to the controlling
22 opinion in WRTL, none of those characteristics render a communication the functional
23 equivalent of express advocacy, it is unclear why paying for communications containing
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such characteristics but no express advocacy would be relevant for determining political
2 committee status. Otherwise, a group that otherwise runs only electioneering
3 communications or other communications that mention a candidate but do not contain
4 express advocacy-spending that is, by definition, not campaign related-could
5 nevertheless become a political committee, whose spending is, as Buckley notes, "by
6 definition, campaign related," merely by spending $1,001 to distribute an independent
7 expenditure or receiving $1,001 in contributions.
8 While Buckley did not construe "expenditure" to mean "express advocacy" when
9 a group was already a political committee, it does not follow that the "express advocacy"
1 0 construction was not, or should not be, part of the major purpose test in order to
11 determine whether a group was a political committee. In Buckley, the Court was
12 concerned that a group would qualify as a political committee simply because it spent
13 $1,001 on expenditures or contributions. Therefore, it held that only those groups whose
14 major purpose was the nomination or election of a Federal candidate qualified as a
15 political committee. While the Court did state that political committees "fall within the
16 core area sought to be addressed by Congress," it approved the "major purpose"
17 limitation because groups engaged in issue advocacy did not fall into that same core area.
18 Buckley, 424 U.S. at 79. And the "major purpose" test is designed to ensure that issue
19 groups would not be considered political committees. Thus, in light of the reasoning
20 behind the rationale underlying the narrowing of"expenditure," it does not appear the
21 Commission may consider more than express advocacy communications when examining
22 a group's spending as part of a major purpose analysis.
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Buckley narrowed that definition to ensure that, "[s]o long as persons and groups
2 eschew expenditures that in express terms advocate the election or defeat of a clearly
3 identified candidate, they are free to spend as much as they want to promote the candidate
4 and his views." 424 U.S. at 45. If political committee status could be imposed on groups
5 that "eschew expenditures," it is unclear how they would be "free to spend as much as
6 they want to promote" any candidate.
33
7 Given the totality of the proposed communications, the vast majority of which are
8 not expenditures, so long as Free Speech does not spend more than half of its money on
9 express advocacy communications, Free Speech's spending would not be "so extensive
10 that the organization's major purpose may be regard[ ed] as campaign activity." MCFL,
11 479 U.S. at 262. Since its major purpose is not nomination or election of a federal
12 candidate, it would not be a political committee.
13 ***
14 This response constitutes an advisory opinion concerning the application of the
15 Act and Commission regulations to the specific transaction or activity set forth in your
16 request. See 2 U.S.C. 437f. The Commission emphasizes that, ifthere is a change in
17 any of the facts or assumptions presented, and such facts or assumptions are material to a
18 conclusion presented in this advisory opinion, then the requestors may not rely on that
19 conclusion as support for its proposed activity. Any person involved in any specific
33
In Brumsickle, the Ninth Circuit states, in dicta, that a group that "spends 40% of its time and resources
on political advocacy, 30% of its time and resources producing merchandise, and 30% of its time and
resources overseeing academic research" would have as its major purpose the election or nomination of a
candidate. 624 F.3d at I 011. In reaching its decision, the court specifically held that the Buckley major
purpose test was not a constitutional test, but rather was an interpretation of a specific federal statute,
created to avoid covering groups "engage[ d) purely in issue discussion." !d. at 1009-10. Since, by the
court's own terms, the major purpose test only applies to federal law, its analysis of Washington state law
has no bearing on the federal definition of political committee.
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1 transaction or activity which is indistinguishable in all its material aspects from the
2 transaction or activity with respect to which this advisory opinion is rendered may rely on
3 this advisory opinion. See 2 U.S.C. 437f(c)(l)(B). Please note the analysis or
4 conclusions in this advisory opinion may be affected by subsequent developments in the
5 law including, but not limited to, statutes, regulations, advisory opinions, and case law.
6 The cited advisory opinions are available on the Commission's Web site,
7 www.fec.gov, or directly from the Commission's Advisory Opinion searchable database
8 at http://www.fec.gov/searchao.
9
10 On behalf of the Commission,
11
12
13
14
15 Caroline C. Hunter
16 Chair
17
Exhibit D
BEFORE THE FEDERAL ELECTION COMMISSION
In the Matter of )
) AO 2012-11
Free Speech ) Agenda Documents No. 12-24, No. 12-
) 24-Aand No. 12-24-B
CERTIFICATION
I, Shawn Woodhead Werth, recording secretary of the Federal Election Commission open
meeting on April 26,2012do hereby certify that the Commission took the following actions in
the above-captioned matter:
1. Failed on a vote of 3-3 to:
Approve Draft C of Draft Advisory Opinion 2012-11as set forth in Agenda
Document No. 12-24-B.
Commissioners Hunter, McGahn n and Petersen voted affirmatively for the motion.
Commissioners Bauerly, Walther and Weintraub dissented.
2. Failed on a vote of 3-3 to:
Approve Draft B as set forth in Agenda Document No. 12-24-A.
Commissioners Bauerly, Walther and Weintraub voted affinnatively for the motion.
Conmiissioners Hunter, McGahn n and Petersen dissented.
Attest:
Dater Shawn Woodhead Werth
Secretary and Clerk of the Coinmission
Exhibit E
BEFORE THE FEDERAL ELECTION COMMISSION
In the Matter of )
)
Free Speech ) AO 2012-11
CERTIFICATION
I, Shawn Woodhead Werth, Secretary and Clerk of the Federal Election
Commission, do hereby certify that on May 08,2012, the Commission decided
by a vote of 6-0 to approve the draft as recommended in the General Counsel's
Memorandum dated May 8,2012.
Commissioners Bauerly, Hunter, McGahn II, Petersen, Walther, and
Weintraub voted affirmatively for the decision.
Attest:
/Ekte ' Shawn Woodhead Werth /
Secretary and Clerk of the Commission
Exhibit F
FEDERAL ELECTION COMMISSION
WASHINGTON, D.C. 20463
May 8, 2012
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
ADVISORY OPINION 2012-11
Benjamin T. Barr Esq.
Stephen R. Klein, Esq.
Wyoming Liberty Group
1740 H Dell Range Blvd. #459
Cheyenne, WY 82009
Dear Messrs. Barr and Klein:
Weare responding to your advisory opinion request on behalf of Free Speech,
concerning the application of the Federal Election Campaign Act, as amended (the
"Act"), and Commission regulations to Free Speech's proposed plan to finance certain
advertisements and ask for donations to fund its activities.
The Commission concludes that: two of Free Speech's 11 proposed
advertisements would expressly advocate the election or defeat of a clearly identified
Federal candidate; four of the proposed advertisements would not expressly advocate the
election or defeat of a clearly identified Federal candidate; and two of the four proposed
donation requests would not be solicitations under the Act. The Commission could not
approve a response by the required four affinnative votes about the remaining
advertisements and donation requests, or about Free Speech's status as a political
committee. See 2 U.S.C. 437c(c); 11 CFR 112.4(a).
Background
The facts presented in this advisory opinion are based on your letter received on
February 29,2012, and your email received on March 9, 2012.
Free Speech describes itself as "an independent group of individuals which
promotes and protects free speech, limited government, and constitutional
accountability." Bylaws, Art. II. It is an unincorporated nonprofit association formed
Exhibit G
AO 2012-11
Page 2
under the Wyoming Unincorporated Nonprofit Association Act, WYo. STAT. ANN.
17-22-101 to 115 (2012), and a "political organization" under 26 U.S.C. 527 of the
Internal Revenue Code.
1
It currently has three individual members.
Free Speech will not make any contributions to Federal candidates, political
parties, or political committees that make contributions to Federal candidates or political
parties. Nor is Free Speech affiliated with any group that makes contributions. Free
Speech also will not make any coordinated expenditures?
Free Speech plans to run 11 advertisements, which it describes as "discuss[ing]
issues concerning limited government, public policy, the dangers of the current
administration, and their connection with candidates for federal office." Free Speech will
run these advertisements in various media, including radio, television, the Internet, and
newspapers. Free Speech currently plans to run the following ads, which are described
more fully in response to question 1 below.
Radio Advertisements
Free Speech plans to spend $1,000 on three advertisements to be aired on local
radio station KGAB AM in Cheyenne, Wyoming. These advertisements, which Free
Speech calls "Environmental Policy," "Financial Reform," and "Health Care Crisis," will
be aired 60 times between April 1 and November 3, 2012. Free Speech currently plans to
allocate its budget evenly among the three advertisements, spending $333.33 for each.
Newspaper Advertisements
Free Speech plans to spend $500 on two advertisements that will appear in the
Wyoming Tribune Eagle on May 12 and May 27,2012. Free Speech plans to spend $250
on each advertisement. The advertisements - "Financial Reform" and "Health Care
Crisis" - will include pictures as well as text.
l The Internal Revenue Code defines a political organization as "a party, committee, association, fund, or
other organization (whether or not incorporated) organized and operated primarily for the purpose of
directly or indirectly accepting contributions or making expenditures, or both, for [the tax-]exempt
function" of "influencing or attempting to influence the selection, nomination, election, or appointment of
any individual to any Federal, State, or local public office or office in a political organization," or the
election or selection of presidential or vice presidential electors. 26 U.S.C. 527(e).
2 Free Speech's bylaws prohibit its members, officers, employees, and agents from engaging in activities
that could result in coordination with a Federal candidate or political party. Bylaws, Art. VI. And
members, officers, employees and agents have a duty to "ensure the independence of all speech by the
Association about any candidate or political party ... in order to avoid coordination." Bylaws, Art. VI,
Sec. 3.
Exhibit G
AO 2012-11
Page 3
Internet Advertisements
Free Speech plans to spend $500 on two advertisements that will appear on
Facebook. The advertisements will appear for a total of "200,000 impressions on
Facebook within Wyoming network" between April 1 and April 30, 2012. Free Speech
plans to spend $250 on each advertisement. The two advertisements, entitled "Gun
Control" and "Environmental Policy," will include pictures as well as text.
Television Advertisements
Free Speech plans to spend $8,000 on four advertisements that will appear on the
local television network KCWY in Cheyenne, Wyoming. The advertisements will appear
approximately 30 times between May 1 and November 3,2012. Free Speech plans to
spend $2,000 on each of the four advertisements. The advertisements are entitled "Gun
Control," "Ethics," "Budget Reform," and "An Educated Voter Votes on Principle."
In total, Free Speech plans to spend $10,000 to run the advertisements described
above. Free Speech "would like to speak out in similar ways in the future."
Free Speech has identified one individual donor willing to give it $2,000 or more,
and would like to ask other individuals to donate more than $1,000 "to help support its
speech." Free Speech would also draw upon funds from its three members to pay for
advertisements costing more than $2,000. Free Speech, however, will not accept
donations from individuals who are foreign nationals or Federal contractors. Free Speech
plans to ask for donations from individuals through four separate donation requests,
which are described in response to question 2 below.
Questions Presented
1. Will Free Speech's proposed advertisements be "express advocacy"?
2. Will Free Speech's proposed donation requests be solicitations under the Act?
3. Will the activities described in this advisory opinion request require Free
Speech to register and report to the Commission as a political committee?
Legal Analysis and Conclusions
Question 1. Will Free Speech's proposed advertisements be "express advocacy"?
Under the Commission's regulations, a communication expressly advocates the
election or defeat of a clearly identified Federal candidate if it "[u]ses phrases such as
'vote for the President,' 're-elect your Congressman,' 'support the Democratic nominee,'
'cast your ballot for the Republican challenger for U.S. Senate in Georgia, 'Smith for
Congress,' 'Bill McKay in '94,' 'vote Pro-Life' or 'vote Pro-Choice' accompanied by a
listing of clearly identified candidates described as Pro-Life or Pro-Choice, 'vote against
Exhibit G
A02012-11
Page 4
Old Hickory,' 'defeat' accompanied by a picture of one or more candidate(s), 'reject the
incumbent,' or communications of campaign slogan(s) or individual word(s), which in
context, can have no other reasonable meaning than to urge the election or defeat of one
or more clearly identified candidate(s), such as posters, bumper stickers, advertisements,
etc. which say 'Nixon's the One,' 'Carter '76,' 'Reagan/Bush' or 'Mondale!'." 11
CFR 100.22(a).
Under the Commission's regulations, a communication also constitutes express
advocacy if "[w]hen 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) [t]he electoral portion of the communication is unmistakable,
unambiguous, and suggestive of only one meaning; and (2) [r]easonable 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." 11 CFR 100.22(b).
The Commission concludes that Free Speech's two "Financial Reform"
advertisements are express advocacy under 11 CFR 100.22(a). The Commission further
concludes that Free Speech's two "Health Care Crisis" advertisements, the "Gun
Control" Facebook advertisement, and the "Ethics" advertisement are not express
advocacy under 11 CFR 100.22.
A. The "Financial Reform" Radio and Newspaper Advertisements
President Obama supported the financial bailout of Fannie
Mae and Freddie Mac, permitting himself to become a
puppet of the banking and bailout industries. What kind of
person supports bailouts at the expense of average
Americans? Not any kind we would vote for and neither
should you. Call President Obama and put his antics to an
end.
3
The "Financial Reform" advertisements, which Free Speech proposes to air on the
radio and run in newspapers, contain express advocacy under 11 CFR 100.22(a). This
conclusion is supported by the Supreme Court's decision in FEC v. Massachusetts
Citizens For Life ("MCFL "),479 U.S. 238 (1986), which involved a flyer that included
the phrase "EVERYTHING YOU NEED TO KNOW TO VOTE PRO-LIFE" and
contained an exhortation to "VOTE PRO-LIFE" after identifying candidates who were
pro-life. The Court held the flyer was express advocacy. Here, the "Financial Reform"
advertisements state that "President Obama supported the financial bailout of Fannie Mae
and Freddie Mac," and then ask "What kind of person supports bailouts at the expense of
average Americans?" They answer the questions with "[nJot any kind of person that we
3 The script for the radio version of the Financial Reform advertisement is the same as the text of the print
version. The only difference between the two, besides the format, is the newspaper advertisement's
inclusion of a full-page picture of President Obama.
Exhibit G
AO 2012-11
Page 5
would vote for and neither should you." Thus, the advertisements are express advocacy:
they identify a candidate (President Obama) with a position on an issue (bailouts) and
then state that the viewers should vote against those who take that issue position ("What
kind of person supports bailouts ... ? Not any kind we would vote for and neither should
you."). Such a formulation "provides in effect an explicit directive: vote for these
(named) candidates. The fact that this message is marginally less direct than 'Vote for
Smith' does not change its essential nature." MCFL, 479 U.S. at 249.
Moreover, this conclusion is not altered by the final sentence: "Call President
Obama and put his antics to an end." The advertisements contain two different
statements directed at the viewer: (1) "Not any kind we would vote for and neither should
you;" and (2) "Call President Obama and put his antics to an end." These are two
different statements that make two different points; however, the addition of the
statement, "Call President Obama and put his antics to an end," does not negate the fact
that the advertisements contain express advocacy under 11 CFR 100.22(a). This is
similar to MCFL, where the Court held that a "disclaimer" stating "[t]his special election
edition does not represent an endorsement of any particular candidate" did not "negate
[the] fact" that the flyer contained express advocacy. MCFL, 470 U.S. at 249.
B. The "Health Care Crisis" Radio and Newspaper Advertisements
President Obama supports socialized medicine, but
socialized medicine kills millions of people worldwide.
Even as Americans disapproved of ObamaCare, he pushed
ahead to make socialized medicine a reality. Put an end to
the brutality and say no to socialized medicine in the
United States.
4
The "Health Care Crisis" advertisements, which Free Speech proposes to air on
the radio and run in newspapers, are not express advocacy under II CFR 100.22. These
advertisements criticize President Obama's health care policy and provide Free Speech's
views on the issue ("socialized medicine kills millions of people worldwide"). The
advertisements have no electoral references.
C. The "Gun Control" Facebook Advertisement
(Picture of handgun, 110 pixels wide by 80 pixels tall)
(Title: Stand Against Gun Control)
Obama supports gun control. Don't trust him. Support
Wyoming state candidates who will protect your gun rights.
4 Like the script for the radio and print versions of the "Financial Refonn" advertisements, the script for the
two versions of the "Health Care Crisis" advertisements is the same. The only difference between the two
advertisements, besides the fonnat, is the newspaper advertisement's inclusion of a "[f1ull picture of a
family picture tom in half."
Exhibit G
AO 2012-11
Page 6
The "Gun Control" Facebook advertisement is not express advocacy under
11 CFR 100.22. The advertisement criticizes President Obama's support of gun control
and exhorts viewers to "[s]upport Wyoming state candidates." The advertisement has no
Federal electoral references.
D. The "Ethics" Television Advertisement
Audio:
Who is President Obama?
Video:
Picture of President Obama
shaking hands with Hugo
Chavez.
He preaches the importance
of high taxes to balance the
budget, but nominates
political elites who haven't
paid theirs.
Fade to another picture of
Obama giving State of the
Union, superimposed "Obama
Aims $1.4 Trillion Tax
Increase at Highest Earners
(San Francisco Chronicle,
Feb. 14,2011)"
He talks about budget and tax
priorities, but passes a blind
eye to nominees who don't
contribute their fair share.
Cut to picture on left side of
screen of Secretary of
Treasury Timothy Geithner
giving testimony,
superimposed "Geithner
apologizes for not paying
taxes (CBS News, Feb. 18,
2009)"
Call President Obama and tell
him you don't approve of his
taxing behavior.
Picture fades in on right side
of screen of Tom Daschle,
superimposed "Tax Woes
Derail Daschle's Bid for
Health Chief (NPR, Feb. 3,
2009)"
Fade to picture of President
Obama and Michelle Obama
enjoying themselves in
Hawaii.
The "Ethics" television advertisement is not express advocacy under 11 CFR
100.22. The advertisement criticizes President Obama based on statements about his
"budget and tax priorities" and his nominees' asserted lack of compliance with their tax
obligations. The advertisement exhorts viewers to "[c]all President Obama and tell him
Exhibit G
AO 2012-11
Page 7
you don't approve of his taxing behavior." The advertisement contains no electoral
references.
The Commission could not approve a response regarding the following
advertisements by the required four affirmative votes:
E. The "Environmental Policy" Radio Advertisement
President Obama opposes the Government Litigation
Savings Act. This is a tragedy for Wyoming ranchers and a
boon to Obama's environmentalist cronies. Obama cannot
be counted on to represent Wyoming values and voices as
President. This November, call your neighbors. Call your
friends. Talk about ranching.
F. The "Environmental Policy" Facebook Advertisement
(Picture of a Wyoming ranch, 110 pixels wide by 80 pixels
tall)
(Title: Learn About Ranching)
Obama's policies are a tragedy for Wyoming ranchers, and
he does not represent our values. This November, learn
about ranching.
G. The Gun Control Television Advertisement
Audio:
Guns save lives.
Video:
Newspaper clippings with
headlines describing self
defense with firearms fade in,
piling up one atop another.
That's why all Americans
should seriously doubt the
qualifications of Obama, an
ardent supporter of gun
control.
Clippings dissolve to a picture
of President Obama, and one
newspaper headline below
him: "President Obarna
defends attorney general
regarding ATF tactics (LA
Times, Oct. 6, 2011)"
This fall, get enraged, get
engaged, and get educated.
And support Wyoming state
candidates who will protect
your gun rights.
Dissolves to a picture of the
Wyoming state flag, panning
down to the Wyoming Capitol
Building.
Exhibit G
A02012-11
Page 8
H. The Budget Reform Television Advertisement
AUDIO: Video:
Congresswoman Lummis Picture of Representative
supported the Repeal Lummis, superimposed "Tea
Amendment, which would Party Pushes Amendment to
have restored fiscal sanity to Veto Congress (AOL News,
our federal debt. Dec. 1,2010)"
Congresswoman Lummis is Small videos of Representative
brave in standing against the Lummis fade in, speaking on
political elite and deserves news programs, meeting with
your support. Make your people, etc.
voice heard.
Do everything you can to Wyoming flag fades in the
support Congresswoman background, returning to
Lummis this fall and work original picture of Rep.
toward fiscal sanity. Lummis.
I The Educated Voter Votes on Principle Television Advertisement
Audio:
Across America, millions of
citizens remain uninformed
about the truth of President
Obama.
Obama, a President who palled
around with Bill Ayers.
Obama, a President who was
cozy with ACORN.
Obama, a President destructive
of our natural rights.
Video:
Picture of President Obama
shaking hands with Hugo
Chavez.
Picture of Bill Ayers in
Weather Underground days,
superimposed "Bill Ayers
Dishes on Hosting a
Fundraiser for Barack Obama
(Big Government, Nov. 29,
2011)."
"House votes to Strip Funding
for ACORN (Fox News, Sept.
17, 2009)"
Video of an ATF raid, fade to
a video of TSA scanning
individuals in line for airport.
Exhibit G
A02012-11
Page 9
Real voters vote on principle. Fades to still shot of the Bill of
Remember this nation's Rights, superimposed
principles. "Remember this nation's
principles."
Question 2. Will Free Speech's proposed donation requests be solicitations under the
Act?
Two of Free Speech's proposed donation requests - entitled "Strategic Speech"
and "Checking Boxes" - will not be solicitations under the Act. The Commission could
not approve a response regarding the remaining two proposed donation requests - entitled
"War Chest" and "Make Them Listen" - by the required four affirmative votes.
See 2 U.S.C. 437c(c); II CFR 112.4(a).
The Act defines the term "contribution" to include "any gift, subscription, loan,
advance, or deposit of money or anything of value made by any person for the purpose of
influencing any election for Federal office." 2 U.S.C. 43 I(8)(A)(i); see also II CFR
IOO.52(a). The Act requires "any person" who "solicits any contribution through any
broadcasting station, newspaper, magazine, outdoor advertising facility, mailing, or any
other type of general public political advertising" to include a specified disclaimer in the
solicitation. 2 U.S.C. 44Id(a); see also II CFR IIO.II(a)(3). Requests for funds that
"clearly indicate[] that the contributions will be targeted to the election or defeat of a
clearly identified candidate for federal office" are solicitations under the Act. FEe v.
Survival Education Fund, 65 F.3d 285,295 (2d Cir. 1995) (analyzing communications
for purposes of2 U.S.C. 44Id(a)).
A. The "Strategic Speech" Donation Request
This fall, 23 Democrat incumbents are up for election in the
U.S. Senate. Seven have already decided to retire, but
some, like John Tester of Montana, haven't gotten the
message. With your donation, we'll strategically speak out
against the expansion of government-run healthcare and so
called 'clean energy' boondoggles like Solyndra, which
Senators like Tester fully support. It's time to retire failed
socialist policies.
The donation request clearly indicates how the funds requested will be spent: by
"strategically speak[ing] out against the expansion of government-run healthcare and
so-called 'clean energy' boondoggles like Solyndra." Although the donation request
identifies Senator Tester as supporting these initiatives and as an incumbent Senator up
for re-election who has not "gotten the message" that he should retire, it lacks language
"clearly indicating that the contributions will be targeted to the election or defeat of a
clearly identified candidate for federal office." Survival Education Fund, 65 F.3d at 295.
Accordingly, this donation request is not a solicitation under the Act. Survival Education
Fund, 65 F.3d at 294-95.
Exhibit G
AO 2012-11
Page 10
B. The "Checking Boxes" Donation Request
'Leading from behind,' President Obama takes advice from
socialist staffers, usually choosing from a checklist of
oppressive, debt-driven policies without even considering
freedom-based and fiscally-conscious alternatives.
Checking the right box on the November ballot is
important, but like Obama's memos it's just not enough.
Take the lead in making the message of Free Speech heard:
your donation will inform real American leadership.
The donation request clearly indicates how the funds requested will be spent:
"making the message of Free Speech heard" by "inform[ing] real American leadership."
Although the request clearly identifies President Obarna and refers to the November
ballot, it lacks language "clearly indicating that the contributions will be targeted to the
election or defeat of a clearly identified candidate for federal office." Survival Education
Fund, 65 F.3d at 294-95. Accordingly, this donation request is not a solicitation under
the Act.
The Commission could not approve a response regarding the following proposed
donation request by the required four affirmative votes:
C. The "Make Them Listen" Donation Request
In 2010, the Tea Party movement ushered in an historic
number of liberty-friendl y legislators. But President
Obama and his pals in Congress didn't get the message:
Stop the bailouts. No socialized healthcare. End
oppressive taxes. But we won't be silenced. Let's win big
this fall. Donate to Free Speech today.
D. The "War Chest" Donation Request
Friends of freedom celebrated when the Supreme Court
decided Citizens United. Now, more than ever, we can
make the most effective use of your donations this coming
fall. Donations given to Free Speech are funds spent on
beating back the Obarna agenda. Beating back Obama in
the newspapers, on the airways, and against his $1 billion
war chest.
Exhibit G
AO 2012-11
Page 11
Question 3. Will the activities described in this advisory opinion request require Free
Speech to register and report to the Commission as a political committee?
The Commission could not approve a response to Question 3 by the required four
affirmative votes. See 2 U.S.c. 437c(c); 11 CFR 112.4(a).
This response constitutes an advisory opinion concerning the application of the
Act and Commission regulations to the specific transaction or activity set forth in your
request. See 2 U.S.C. 437f. The Commission emphasizes that, if there is a change in any
of the facts or assumptions presented, and such facts or assumptions are material to a
conclusion presented in this advisory opinion, then the requestors may not rely on that
conclusion as support for its proposed activity. Any person involved in any specific
transaction or activity which is indistinguishable in all its material aspects from the
transaction or activity with respect to which this advisory opinion is rendered may rely on
this advisory opinion. See 2 U.S.C. 437f(c)(l)(B). Please note the analysis or
conclusions in this advisory opinion may be affected by subsequent developments in the
law including, but not limited to, statutes, regulations, advisory opinions, and case law.
On behalf of the Commission,
Caroline C. Hunter
Chair
Exhibit G

FEDERALELECTIONCOMMISSION
WASHINGTON,D.C.20463


CONCURRING OPINION OF VICE CHAIR ELLEN L. WEINTRAUB AND

COMMISSIONERS CYNTHIA L. BAUERLY AND STEVEN T. WALTHER

IN ADVISORY OPINION 2012-11 (Free Speech)

Today the Commission provided a partial response to the Advisory Opinion Request filed
by Free Speech, which asked (1) whether 11 proposed advertisements contained express
advocacy; (2) whether funds received in response to four solicitations would constitute
contributions; and (3) whether Free Speech would qualify as a political committee. On April 26,
we voted in favor of proposed Draft B, which provided answers to each of requestors questions.
Our colleagues supported an alternative draft. Because there were areas of overlap between the
response we supported and the response supported by our colleagues, we joined with our
colleagues and voted in favor of a draft that distilled the common answers. We write separately,
however, to explain in more detail how we approached this request.

The Commissions Advisory Opinion process is laid out in the Federal Election
Campaign Act (FECA), 2 USC 431-57. It provides an opportunity for a requestor to seek the
Commissions opinion about the application of the statute and existing regulations to a particular
proposed transaction or activity. 2 USC 437f. Constitutional determinations are generally
inappropriate for the Agency as a part of this process. See Johnson v. Robison, 415 U.S. 361, 368
(1974) (adjudication of constitutionality is generally outside an administrative agency's
authority); Robertson v. FEC, 45 F.3d 486,489 (D.C. Cir. 1995) (noting in the context of the
Commission's administrative enforcement process that "[i]t was hardly open to the Commission,
an administrative agency, to entertain a claim that the statute which created it was in some
respect unconstitutional). The Commission is neither free to announce or apply new law when
rendering an advisory opinion, 2 USC 437f(b) (Any rule of law which is not stated in this Act . .
. may be initially proposed by the Commission only as a rule or regulation pursuant to
procedures established in section 438(d) of this title.), nor generally empowered to waive its
own regulations. See, Advisory Opinion 1994-35 (Alter); see also Army and Air Force Exchange
Service v. Sheehan, 456 U.S. 728 (1982) (noting the well-established legal principle that a
federal agency must comply with its own regulations).

The Requestors first question asked whether several advertisements contained express
advocacy. Our draft answered this question by applying the Commissions regulatory definition
of express advocacy at 11 CFR 100.22, which establishes a two-part definition. Part (a) of the
regulation includes communications that use phrases such as vote for or reject which
in context can have no other reasonable meaning than to urge the election or defeat of a
candidate. 11 CFR 100.22(a). This is sometimes referred to as magic words express advocacy.
See McConnell v. FEC, 540 U.S. 93, 126 (2003). Part (b) defines express advocacy as a
Exhibit H
ConcurringOpinioninAdvisoryOpinion201211
Page2of3

communication that has an unambiguous electoral portion as to which [r]easonable minds

could not differ [that] it encourages actions to elect or defeat one or more clearly identified
candidate(s). 11 CFR 100.22(b). Both parts of section 100.22 are in effect.

The most recent federal court to consider this issue upheld the regulation; and the
Commission is now actively defending an appeal of that decision. See The Real Truth About
Obama v. FEC (RTAO), 796 F.Supp.2d 736 (E.D. Va 2011), appeal docketed, No. 11-1760
(4th Cir., July 15, 2011); Brief of Appellees FEC and DOJ at 25-52, RTAO, No. 11-1760 (4th
Cir. Oct. 20, 2011).
1
It is true that, over a decade ago, several lower courts raised doubts about
the constitutionality of section 100.22(b), suggesting that government regulation was limited to a
wooden magic-words formula. See, e.g., FEC v. Christian Action Network, 110 F.3d 1049, 1054
(4
th
Cir. 1997); Right to Life of Dutchess Co., Inc. v. FEC, 6 F. Supp. 2d 248 (S.D.N.Y. 1998).
However, the Supreme Court soundly rejected this approach in McConnell with respect to issue
ads that are the functional equivalent of express advocacy. See 540 U.S. at 189-94; see also id.
at 278 n.11 (Thomas, J., dissenting) (noting that majority had overturned contrary lower court
precedents, including Christian Action Network, with respect to that issue). Later, in 2007, in
FEC v. Wisconsin Right to Life, Inc. (WRTL), the Chief Justices controlling opinion explained
that the FECA may constitutionally reach the functional equivalent of express advocacy,
which was defined as a communication that is susceptible of no reasonable interpretation other
than as an appeal to vote for or against a specific candidate. 551 U.S. 449, 469-70 (2007); see
also Citizens United v. FEC, 130 S. Ct. 876, 889-90 (2010) (applying the WRTL test). The
definition in 11 CFR 100.22(b) comports with this reasoning.


Since WRTL was decided, the Commission has frequently applied 11 CFR 100.22(b).
See, e.g., MUR 5831 (Softer Voices); MUR 5833 (Ohio Democratic Party); MUR 5887
(Republican Mainstreet PAC). Additionally, as noted above, the Commission is actively
defending this regulation in litigation. Any remaining concerns about its constitutionality should
be put to rest after the Courts decision in Citizens United, because the definition at section
100.22 functions now not as a limit on speech, but rather to implement disclosure requirements.
Accordingly, we believe the approach we supported is entirely consistent with the Supreme
Courts decisions.

The requestors second question asked us to analyze four planned donation requests to
determine whether they would constitute solicitations of contributions. In doing so, we applied
the test articulated in FEC v. Survival Education Fund, which held that requests for funds
"clearly indicating that the contributions will be targeted to the election or defeat of a clearly
identified candidate for federal office" raise "contributions" under the Act. FEC v. Survival
Education Fund, 65 F.3d 285,295 (2d Cir. 1995) (analyzing communications for purposes of
section 441 d(a)). The draft supported by our colleagues suggests that the Survival Education
Fund test as the Commission has traditionally applied it cannot survive after Emilys List v. FEC,
581 F.3d 1 (D.C. Cir. 2009). Emilys List struck down the regulation at 11 CFR 100.57, which
adopted the Survival Education Fund test, because the D.C. Circuit Court objected to the
regulations mandatory federal versus non-federal allocation formula. 581 F.3d at 17-18, 21.
Nothing in Emilys List, however, undermines the general premise that a solicitation indicating

1
Availableatwww.fec.gov/law/litigation/rtao.shtml#ac_decisions.
Exhibit H
Exhibit H

FEDERAL ELECTION COMMISSION

WASHINGTON, D.C. 20463

STATEMENT ON ADVISORY OPINION 2012-11 (FREE SPEECH)


Chair CAROLINE C. HUNTER and
Commissioners DONALD F. McGAHN and MATTHEW S. PETERSEN

This Advisory Opinion request provides the public with a rare glimpse into how
Commissioners determine whether or not speech is an independent expenditure under
the Act, particularly whether a communication contains express advocacy. Ordinarily,
this determination is done behind the closed doors of the FECs confidential enforcement
process, long after the speech occurs, and long after any attendant report is due. It is
especially important for the public to understand how different Commissioners have
applied and do apply those tests that are more sweeping than the explicit words of
advocacy requirements imposed by the Supreme Court in Buckley v. Valeo, 424 U.S. 1
(1976) and FEC v. Massachusetts Citizens for Life, 479 U.S. 238 (1986) (MCFL),
particularly 11 C.F.R. 100.22(b).

previously were deemed to no

We believe that, while statutorily infirm, Section 100.22(b) could be a narrow test
that focuses on the language of a communication if it were applied literally.
1
It captures
the communication at issue in FEC v. Furgatch, 807 F.2d 857 (9th Cir. 1987), on which
Section 100.22(b) was based. It should not, however, cause other communications that
t contain express advocacy to now become express

1
To come within the reach of Section 100.22(b), a communication must contain an electoral portion that
is unmistakable, unambiguous, and suggestive of only one meaning, and [r]easonable minds could not
differ as to whether that one meaning encourages actions to elect or defeat a clearly identified candidate.
1
Exhibit I

advocacy communications. We have in mind two specific communications already
addressed by the Supreme Court: the Bill Yellowtail ad referenced in McConnell v. FEC,
540 U.S. 93, 193 n.78 (2003) and Hillary the Movie at issue in Citizens United v.
FEC, 130 S. Ct. 876, 889-90 (2010). Unfortunately, as our statement shows, earlier
Commissions, as well as our colleagues, have greatly expanded Section 100.22(b) far
beyond its textual limits and into potential contravention of court holdings. As it has
been applied in practice, Section 100.22(b) suffers from the exact type of constitutional
frailties described by the Chief Justice [in FEC v. Wisconsin Right to Life, 551 U.S. 449
(2007) (WRTL)] because it endorses an inherently vague rough-and-tumble of factors
approach in demarcating the line between regulated and unregulated speech.
2
This
insistence on exceeding the scope of the regulatory text and Furgatch has muddied any
attempt by potential speakers to figure out what is and what is not express advocacy.
3

These differences in application cause confusion among the public as to how the
test will be applied to them. For that reason, a few individuals, collectively called Free
Speech, sought clarity prior to speaking, and asked whether certain communications
contained express advocacy, and thus needed to be reported as independent

2
MUR 5874 (Gun Owners of America, Inc.), Statement of Reasons of Vice Chairman David M. Mason at
3. Cf. Explanation and Justification for Final Rules on Express Advocacy (Express Advocacy E&J), 60
Fed. Reg. 35292, 35294-35296 (July 6, 1995) (allowing for the consideration of context and external
events when pertinent on a case-by-case basis when evaluating a communication under Section
100.22(b)); see also MUR 6073 (Patriot Majority 527s), First General Counsel Report at 9 (referring to
the distillation of the meaning of expenditure through the enforcement process).
3
Our resistance to enforcing this broad application of Section 100.22(b) does not simplify this task or
obviate the threat of enforcement for future speakers. As Justice Marshall stated, the threat of enforcement
hangs over [a speakers] head[] like a sword of Damocles . . . . That th[e] Court will ultimately vindicate
[him] if his speech is constitutionally protected is of little consequence for the value of a sword of
Damocles is that it hangs not that it drops. Arnett v. Kennedy, 416 U.S. 134, 231 (1974) (Marshall, J.,
dissenting).
2
Exhibit I

expenditures and, potentially, cause them to become a political committee.
4
A review of
closed FEC enforcement matters shows that determining whether an ad constitutes
express advocacy is difficult to ascertain prospectively, although the Supreme Court has
limited the reach of the pertinent portion of the Act to express words of advocacy, such
as vote for, elect, support, cast your ballot for, Smith for Congress, vote
against, defeat, [or] reject.
5
Thus, such a request is understandable.
To be clear, the request by Free Speech does not question the underlying
justification for the disclosure of certain types of communications. At least for purposes
of the Commissions consideration of this request, they do not appear to be challenging
the Acts independent expenditure reporting regime (as limited by Buckley and MCFL),
the Acts electioneering communication reporting regime (as upheld in McConnell and
Citizens United), or the Acts political committee reporting regime (as limited by
Buckley). Thus, the question before the Commission is simply what triggers disclosure.

problems; and (3) a lack of cla

We ultimately supported Draft C.

6
Unfortunately, it did not receive majority
support. Thus, the requestors are left in legal limbo. We write separately to highlight
three points: (1) Section 100.22(b) has been inconsistently applied and given a
sweepingly broad interpretation; (2) the conflation of express advocacy and the
functional equivalent of express advocacy (by claiming that Section 100.22(b) and the
appeal to vote test adopted in WRTL are the same test) ignores the Act, creating reporting
rity with regard to expenditures in the political committee

4
Advisory Opinion Request 2012-11 (Free Speech), available at
http://saos.nictusa.com/saos/searchao?SUBMIT=ao&AO=3432&START=1204965.pdf.

5
Buckley, 424 U.S. at 44 n.52.
6
Federal Election Commission, Open Session, Apr. 26, 2012, Agenda Doc. No. 12-24-B, available at
http://saos.nictusa.com/saos/searchao?SUBMIT=ao&AO=3432&START=1207876.pdf.
3
Exhibit I

context, coupled with an inconsistent application of the major purpose test, has created
confusion as to whether a group is required to register and report as a political committee.
1. A Brief History of 100.22(b)
As we set forth in Draft C, Section 100.22(b) has had a checkered history. When
first promulgated, the regulation was based upon the Ninth Circuits decision in
Furgatch. At the time, the FEC claimed that Furgatch was not a case that fundamentally
changed the regulatory authority of the FEC.
7
Nonetheless, a number of courts
subsequently held Section 100.22(b) to be beyond the Commissions statutory authority
and, thus, unenforceable.
8
The Commission, in turn, publicly announced that it would
not enforce the regulation in certain jurisdictions.
9

Feingold and McConnell. Alth

Unfortunately, Section 100.22(b) improbably rose again in the wake of McCain-

ough Congress had originally considered codifying a

7
On the contrary, the FEC told the Supreme Court that Furgatch raises no significant issues of statutory
construction or constitutional law that have not been dealt with by this Court before. Brief for Respondent
in Opposition at 6, Furgatch v. FEC, 484 U.S. 850 (1987) (denying writ of certiorari).
8
See Me. Right to Life Comm., Inc. v. FEC, 914 F. Supp. 8, 13 (D. Me. 1996) (conclud[ing] that 11 C.F.R.
100.22(b) is contrary to the statute as the United States Supreme Court and the First Circuit Court of
Appeals have interpreted it and thus beyond the power of the FEC), affd per curiam, 98 F.3d 1 (1st Cir.
1996) (per curiam), cert. denied, 522 U.S. 810 (1997); FEC v. Christian Action Network, 894 F. Supp. 946,
958 (W.D. Va. 1995) (concluding that the FECs approach to express advocacy wrongly expanded the
definition beyond that enunciated by the Court in Buckley and was based on a misreading of the Ninth
Circuits decision in Furgatch), affd, 92 F.3d 1178 (4th Cir. 1996) (unpublished); Virginia Society for
Human Life, Inc. v. FEC, 263 F.3d 379, 392 (4th Cir. 2001) (VSHL) (holding that Section 100.22(b)
violates the First Amendment); Right to Life of Dutchess County, Inc. v. FEC, 6 F. Supp. 2d 248, 253-
254 (S.D.N.Y. 1998) (finding that 100.22(b) is beyond the statute). See also Neal v. United States, 516 U.S.
284, 295 (1996) (Once we have determined a statutes meaning, we adhere to our ruling under the doctrine
of stare decisis, and we assess an agencys later interpretation of the statute against that settled law.)
(citations omitted).
9
See VSHL, 263 F.3d at 382 ([T]he FEC voted 60 to adopt a policy that 11 C.F.R. 100.22(b) would not
be enforced in the First or Fourth Circuits because the regulation has been found invalid by the First
Circuit and has in effect been found invalid by the Fourth Circuit.) (emphasis in the original); see also
Opening Brief for the Federal Election Commission at 19, VSHL, 263 F.3d 379 (4th Cir. 2001) ([T]he
Commission has never threatened to bring an action against VSHL and has formally recognized that it is
foreclosed by the [Christian Action Network] decision from enforcing [100.22(b)] in the Fourth Circuit.).
Cf. Johnson v. U.S. R.R. Ret. Bd., 969 F.2d 1082, 1091 (D.C. Cir. 1992) (explaining the serious statutory
and constitutional questions raised by intercircuit nonacquiesence).
4
Exhibit I

standard like that articulated in Furgatch or Section 100.22(b) when drafting McCain-
Feingold, legislative history indicates that Congress deliberately chose to not adopt such
a standard, and instead adopted new electioneering communications provisions.
10

McCain-Feingold defined electioneering communications as (1) any broadcast, cable, or
satellite communication, (2) which refers to a clearly identified Federal candidate, (3)
made within 60 days before a general, special, or runoff election, or 30 days before a
primary or preference election, convention, or caucus for the office sought by the
candidate, and (4) targeted to the relevant electorate.
11
Corporations and unions were
banned from airing such communications.
12

The law was challenged by a number of plaintiffs, including Senator Mitch
McConnell, who argued that the new electioneering communication provisions were
unconstitutional, as they went beyond the so-called magic words requirement of
Buckley and MCFL.
13
In defending the law, the FEC argued that Buckley was merely a
case of statutory construction and did not represent a constitutional mandate for any new
Congressional efforts to regulate politics.
14
The Supreme Court eventually agreed, and

10
Early versions of the McCain-Feingold bill proposed to address electioneering issue advocacy by
redefining expenditures subject to FECAs strictures to include public communications at any time of
year, and in any medium, whether broadcast, print, direct mail, or otherwise, that a reasonable person
would understand as advocating the election or defeat of a candidate for federal office. Brief for
Defendants at 50, McConnell v. FEC, 251 F. Supp. 2d 176 (D.D.C. 2003) (citing 143 Cong. Rec. S10107,
10108 (Sept. 29, 1997)). In response to concern[s] about being substantially too broad and too
overreaching, Congress became cautious and prudent in the Senate language that we included and did not
include the Furgatch [language]. 147 Cong. Rec. S2713 (Statement of Senator Snowe) (March 22, 2001).
11
See 2 U.S.C. 434(f)(3).
12
2 U.S.C. 441(b).
13
Consolidated Brief for Plaintiffs in Support of Motion for Judgment at 47-53, McConnell v. FEC, 251 F.
Supp. 2d 176 (D.D.C. 2003), affd in part and revd in part, 540 U.S. 93 (2003).
14
See, e.g., Brief of Defendants at 149, McConnell v. FEC, 251 F. Supp. 2d 176 (D.D.C. 2003), affd in
part and revd in part, 540 U.S. 93 (2003) (What plaintiffs critically misperceive about Buckleys express
5
Exhibit I

made clear that Buckley and MCFL were cases that turned on statutory construction.
15

The Court ultimately upheld the electioneering communication ban and reporting
requirements, holding that the new provisions avoided the vagueness problems identified
in Buckley.
16

In doing so, the Court noted that, while advertisements that do not urge the
viewer to vote for or against a candidate in so many words do not constitute express
advocacy, they are no less clearly intended to influence the election.
17
To both
Congress and the Court, the quintessential ad that was not express advocacy but was
intended to influence the election was the so-called Bill Yellowtail ad:
Who is Bill Yellowtail? He preaches family values but took a swing at his
wife. And Yellowtails response? He only slapped her. But her nose
was not broken. He talks law and order . . . but is himself a convicted
felon. And though he talks about protecting children, Yellowtail failed to
make his own child support payments -- then voted against child support
enforcement. Call Bill Yellowtail. Tell him to support family values.
18


Critical to the Courts analysis was the fact that this ad did not constitute express
advocacy. Had it, the ad could have already been prohibited under the then-existing ban
on corporate independent expenditures. Thus, according to the Court, Congress enacted

advocacy holding is that it arose from statutory interpretation made necessary by the vague language of the
1974 amendments to FECA) (emphasis in the original).
15
See McConnell, 540 U.S. at 126 (noting that Buckleys magic words arose [a]s a result of . . . [a] strict
reading of the statute and marked a bright statutory line separating express advocacy from issue
advocacy) (emphasis added).
16
Id. at 193-94.
17
Id. at 193.
18
Id. at 193 n.78. The Court continued, The notion that this advertisement was designed purely to discuss
the issue of family values strains credulity. Id. See also MUR 4568 (Triad Management Services, Inc.),
General Counsels Brief at 66 (stipulating that the Bill Yellowtail ad amongst others did not contain
express advocacy).
6
Exhibit I

[McCain-Feingold] to correct the flaws it found in the existing system.
19
As noted
above, though, Congress did not revise the statutory definition of independent
expenditure, which the Court had already narrowed, but created a new statutory construct
electioneering communications to correct the flaws.
After McConnell, the Commission determined that Section 100.22(b) was
constitutional nationwide via a confidential enforcement matter without any prior notice
or opportunity for public comment.
20
It was recast by some as a gap-filler which fit
somewhere between express advocacy as defined by Buckley and MCFL, and the
functional equivalent of express advocacy as described in McConnell.
21
Nowhere had
the Supreme Court blessed the Ninth Circuits expansion of express advocacy in
Furgatch. Yet, the Commission revived Section 100.22(b), despite the fact that the Court
and the Commission agreed that Buckley and MCFL had construed the statutory
definition of expenditure to cover only express advocacy as those cases had defined it.
22

We believe such a revival was improper.

prohibition, Section 100.22(b)

After WRTL narrowed the scope of the electioneering communication speech

was expanded yet again, to be equated with the FECs

19
Id. at 194.
20
See MUR 5024R (Council for Responsible Government). We note that, during the pendency of litigation
over the Commissions earlier decision in MUR 5024, the Commission cursorily applied Section 100.22(b)
in Advisory Opinion 2004-33 (Ripon), finding that the communication in question did not constitute
express advocacy.
21
See id., General Counsels Report #2 at 7-8 (determining that section 100.22(b) was a regulation that
fills the gaps between where Buckleys magic words end and McConnells functional equivalent
begins).
22
See, e.g., id., Statement of Reasons of Commissioner Bradley A. Smith at 5 (lamenting that the
Commission chose to reconsider and reverse its dismissal of the complaint filed against the Council for
Responsible Government alleging violations of section 100.22(b) following the Courts ruling in
McConnell, in spite of the fact that [t]he General Counsels office and a majority of the Commission
appear to agree that McConnell does not change the applicable law).
7
Exhibit I

version of the WRTL test (found at 11 C.F.R. 114.15).
23
Thus, the definition of
independent expenditure morphed from (1) express advocacy as defined by Buckley and
MCFL to (2) a more expansive definition informed by Furgatch and codified in Section
100.22(b) to (3) a definition covering the gap between express advocacy and the
functional equivalent of express advocacy after McConnell, and, finally, to (4) the FECs
version of functional equivalent of express advocacy itself after WRTL. And since the
Commission did not expressly adopt the limiting principles set forth by WRTLs
controlling opinion,
24
an independent expenditure may, to some, even be broader than the
functional equivalent of express advocacy as defined by WRTL. In any event, it is
unclear how a test that limited the reach of McCain-Feingolds electioneering
communication ban could be exported to the definition of independent expenditure, when
the statutory definition of electioneering communication specifically excludes all
independent expenditures.
25

23
See MUR 5874 (Gun Owners of America, Inc.), Factual and Legal Analysis at 4 n.2 (citing the definition
of the functional equivalent of express advocacy in WRTL in defining express advocacy under 100.22(b)).
In addition, the Commissions Office of General Counsel routinely includes a footnote in its legal analysis
of Section 100.22(b), observing that, although Section 100.22(b) was not at issue in WRTL, the Courts
analysis included several factors that the Commission had used to analyze express advocacy that were later
also incorporated into Section 114.15. See, e.g., MUR 5988 (American Future Fund), First General
Counsels Report at 8 n.3; MURs 5910 & 5694 (Americans for Job Security), First General Counsels
Report at 8 n.7; MUR 5854 (Lantern Project), First General Counsels Report at 7 n.6; MUR 5831 (Softer
Voices), First General Counsels Report at 10 n.8.
24
See WRTL, 551 U.S. at 474 n.7 (emphasiz[ing] that (1) there can be no free-ranging intent-and-effect
test; (2) there generally should be no discovery or inquiry into the sort of contextual factors highlighted
by the FEC and intervenors; (3) discussion of issues cannot be banned merely because the issues might be
relevant to an election; and (4) in a debatable case, the tie is resolved in favor of protecting speech).
25
2 U.S.C. 434(f)(3)(B)(ii) (the term electioneering communication does not include a communication
which constitutes an expenditure or an independent expenditure under this Act). See also 11 C.F.R.
100.29(c)(3) (any communication that [c]onstitutes an expenditure or independent expenditure provided
that the expenditure or independent expenditure is required to be reported under the Act or Commission
regulations is not an electioneering communication).
8
Exhibit I

In Citizens United, when the Court considered Section 114.15, described by the
Court as a two-part, eleven-factor balancing test, it called that test an unprecedented
governmental intervention into the realm of speech that gave the FEC power analogous
to licensing laws implemented in 16th- and 17th-century England by creat[ing] a
regime that allows it to select what political speech is safe for public consumption by
applying ambiguous tests under which Government officials pore over each word of a
text to see if, in their judgment, it accords with the 11-factor test they have
promulgated.
26
Clearly, then, any use of that test for purposes of Section 100.22(b) was
improper.
While rejecting the Commissions regulatory application of the functional
equivalent of express advocacy, the Court held that Hillary the Movie was an
electioneering communication that was the functional equivalent of express advocacy.
27

The movie began by asking could [Senator Clinton] become the first female President
in the history of the United States? And the narrator reiterated the movies message in
his closing line: Finally, before America decides on our next president, voters should
need no reminders of . . . whats at stake -- the well being and prosperity of our
nation.
28
In between, the Court observed that:

the Clinton administrat

The movie, in essence, is a feature-length negative advertisement that

urges viewers to vote against Senator Clinton for President. In light of
historical footage, interviews with persons critical of her, and voiceover
narration, the film would be understood by most viewers as an extended
criticism of Senator Clintons character and her fitness for the office of the
Presidency. . . . The movie concentrates on alleged wrongdoing during
ion, Senator Clintons qualifications and fitness for

26
Citizens United, 130 S. Ct. at 896.
27
Id. at 890.
28
Id. (internal citations omitted).
9
Exhibit I

office, and policies the commentators predict she would pursue if elected
President. It calls Senator Clinton Machiavellian, and asks whether she
is the most qualified to hit the ground running if elected President. The
narrator reminds viewers that Americans have never been keen on
dynasties and that a vote for Hillary is a vote to continue 20 years of a
Bush or a Clinton in the White House.
29


Importantly, despite the clear electoral focus of the movie and its use of vote,
neither the majority nor the dissent considered the movie to be express advocacy. Thus,
like the Bill Yellowtail ad described in McConnell, Hillary the Movie was considered
to be outside the definition of express advocacy.
2. 100.22(b): Improper Expansion Beyond Furgatch and the Regulatory
Text
Clearly, the Commission in the past has had difficulty consistently applying
Section 100.22(b) once it strayed from Furgatch and the text of the regulation.
McConnell and Citizens United instruct that Section 100.22(b) cannot be expanded to
cover communications like the Bill Yellowtail ad or Hillary the Movie. Yet the
Commission has, at times, done just that.
30

For example, in MUR 5440 (The Media Fund), the Commission determined that a
mailer highlighting then-presidential candidate Senator John Kerrys military service,
combat medals, personal courage and bravery, and observing, in text positioned next

29
Id. (internal citations omitted); see also Citizens United v. FEC, 530 F. Supp. 2d 274, 279-280 n.12
(D.D.C. 2008) (providing additional excerpts of the movie).
30
We note, obviously, that Citizens United was decided after the MURs discussed in this section were
completed. We compare the communications in these MURs to Hillary the Movie not because we
believe prior Commissioners should have been clairvoyant, but to highlight how difficult it is for
prospective speakers to know what is and what is not express advocacy given the current landscape.
Moreover, all of these examples in this section appear to be much less electoral than the Bill Yellowtail ad,
on which the Court did opine prior to the completion of these MURs. Finally, Draft B seems to confer
express advocacy status on communications that are far less electoral than either the Bill Yellowtail ad or
Hillary the Movie. See Federal Election Commission, Open Session, Apr. 11, 2012, Agenda Doc. No.
12-24-A, available at
http://saos.nictusa.com/saos/searchao?SUBMIT=ao&AO=3432&START=1207876.pdf.
10
Exhibit I

to pictures of George Bush and Dick Cheney that These Men Could have Served in
Vietnam, But Didnt, constituted express advocacy under Section 100.22(b).
31
The
Commission determined that such an ad extols the candidates character and fitness for
the office of President, citing his bravery and selflessness . . . and, thus in context, [it]
can have no other reasonable meaning than to encourage [Kerrys] election.
32

The Commission found express advocacy under Section 100.22(b) even though
the mailer did not reference the election or refer to any of the named officeholders as
candidates.
33
The mailer also included a detailed review of issues that would be
important to veterans and Senator Kerrys stance on those issues, as well as the speakers
views on particular failings of President Bush on veterans issues.
.
Such a detailed review
of the issues in this ad far exceeds that found in the Bill Yellowtail ad, in which the
candidates character was highlighted with only a single mention of a legislative act.
Surely attacking a candidates history of domestic abuse and attacking a candidates
failure to serve in the military at least raises the same types of character and fitness for
office questions in fact, one could argue that the charges in the Yellowtail ad were more
devastating attacks. Yet the Commission found the Kerry ad to be express advocacy,
while both Congress and the Court understood the Bill Yellowtail ad not to be express
advocacy.
In the Media Fund MUR, the Commission also considered the following radio ad,
entitled Good:

31
MUR 5440 (The Media Fund), General Counsels Brief at 17.
32
Id. at 17-18.
33
Id. at 17.
11
Exhibit I

Wouldnt it be good to have someone on our side? George Bush has given
his biggest tax cuts to millionaires, shifting the burden to the middle class.
Bush has turned a budget surplus into the largest deficit in history, leaving
trillions in debt for our children while Dick Cheneys Halliburton gets
billions in no-bid contracts. Bush and the Republicans have taken 40
million dollars in campaign contributions from drug companies and now
George Bushs so-called Medicare reform guarantees the pharmaceutical
industry 139 billion dollars in profit. And privatizing Social Security is
Bushs next big priority; rewarding his friends on Wall Street and putting
our retirement benefits at risk. John Kerry and John Edwards have a better
idea, a plan thats fair for working families here in Hawaii and across
America.
34


The Commission considered this advertisement to be express advocacy under
Section 100.22(b) because it relates to the upcoming election by identifying the
competing candidates, praising Kerry, while criticizing Bush. By asking listeners,
Wouldnt it be good to have someone our side?, the ad is encouraging them to vote for
the candidate whom the ad unmistakably implies is on the listeners side in this case,
Kerry.
35
Again, nowhere does the ad mention an election or the candidacy of either
Senator Kerry or President Bush. And nowhere does the communication contain any call
to action, let alone any call to vote. Yet the Commission stated that, The only manner in
which the listener can act on the message is to vote for Kerry in the upcoming
election.
36

It is unclear how this radio ad is more electoral than Hillary the Movie, which
specifically linked Senator Clinton to the 2008 presidential race, reviewed her
qualifications and fitness for office, and stated that a vote for Hillary is a vote to
continue 20 years of a Bush or a Clinton in the White House. Even though Good

34
Id., General Counsels Brief, Attachment 6 at 17.
35
Id., General Counsels Brief at 20 (emphasis added).
36
Id.
12
Exhibit I

contained no electoral language, while Hillary the Movie did, the former was found
by the Commission to be express advocacy while the latter was found later by the Court
to be an electioneering communication that was the functional equivalent of express
advocacy (which, statutorily, means that the communication was not express advocacy).
In other instances, the Commission has determined that advertisements
challenging an incumbent officeholders capacity to lead, by asserting that he cannot
be trusted, and ask[ing] why citizens should be willing to follow him as a leader
unambiguously refer[s] to Senator Kerry as Presidential candidate by discussing his
character, fitness for office, and capacity to lead, and ha[s] no other reasonable meaning
than to encourage actions to defeat him.
37
According to the Commission, the only
manner in which the reader can act on the message Kerry cannot be trusted is to vote
against him in the upcoming election.
38
Thus, the Commission, without the inclusion of
any words of electoral advocacy or an electoral call to action, considered
communications with those words to be express advocacy under Section 100.22(b).

It is impossible to see how that conclusion can now be squared with Citizens
United, in which the Court found Hillary the Movie, which included far more direct
electoral exhortations against Senator Clinton, not to be express advocacy, but to be an
electioneering communication that was the functional equivalent of express advocacy.
Thus, it is unclear how a speaker is supposed to know what is and what is not express
advocacy when the Commission and the Court have come to such different conclusions
about similar types of communications.

37
MURs 5511 & 5525 (Swift Boat Veterans and POWs for Truth), Conciliation Agreement at 25.
38
Id. at 26.
13
Exhibit I

Even today, Draft B illustrates the same problem, finding express advocacy where
courts have found none to exist. Take, for example, Environmental Policy. There,
Draft B highlights at least five factors that indicate the communication is express
advocacy: (1) [t]he advertisement contains an electoral portion that expressly exhorts
listeners to take action [t]his November; (2) while it refers to legislation, it does not
describe or discuss the merits of that legislation; (3) it disparages President Obama by
characterizing his opposition to the referenced legislation as a tragedy for Wyoming
ranchers; (4) it asserts that President Obama cannot be counted on to represent
Wyoming values and voices as President; and (5) it refers to Obamas environmentalist
cronies.
39
In doing so, Draft B rejects the explicit action urged by the communication,
which is in no way electoral; the advertisement explicitly instructs the viewer to call
your neighbors and [c]all your friends and talk about ranching. Instead, under the
guise of a reasonable person, Draft B divines the effect on the viewer, then presumes
the proposed advertisement to be campaign advocacy, reasoning that [i]t is an obvious
non sequitur in an ad that talks about ranchers and the environment to ask viewers to call
their neighbors and friends to talk about ranching, even though that is precisely what the
advertisement expressly says.
40
That no one is identified as a candidate, and no election
is referenced, is ignored.
Draft B makes much of the phrase this November and seems to presume that
the only reasonable reading of that phrase is as express advocacy. But in FEC v.

39
Advisory Opinion 2012-11 (Free Speech), Draft B at 7-8.
40
Id.
14
Exhibit I

Christian Coalition, the inclusion of November did not convert an ad into express
advocacy,
41
even though the speech proclaimed victory will be ours, and ended with:
[Victory] will be ours here in Montana. And it will be ours all across
America . . . . Were going to see Pat Williams sent bags packing back to
Montana in November of this year. And Im going to be here to help
you.
42


The court explained that, Although the implicit message is unmistakable, in explicit
terms this is prophecy rather than advocacy.
43
The court continued, Though the
message is clear, it requires one inferential step too many to be unequivocally considered
an explicit directive.
44

Similarly, the court also considered a letter that said:
If 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 start now.
45


Even though the court noted that certain explicit directives were present, and that it was
likely that the reader is to make his voice be heard by voting, the court held that it was
not express advocacy because the materials did not explicitly direct the reader as to how
to vote in any given election.
46
Just like those ads in Christian Coalition,
Environmental Policy contains no such explicit directive.

41
FEC v. Christian Coalition, 52 F. Supp. 2d 45, 63 (D.D.C. 1999). The court used the standard
announced by the Ninth Circuit in FEC v. Furgatch, the case upon which 100.22(b) was originally based.
42
Id. at 56, 57 (emphasis added).
43
Id. at 63.
44
Id.
45
Id. at 63-64 (emphasis added).
46
Id. at 64.
15
Exhibit I

While this highlights the problem with expanding the scope of express advocacy,
it also provides more evidence that Section 100.22(b) has become hopelessly amorphous
through that expansion. It is unclear whether our colleagues believe Christian Coalition
remains good law, even though it has never been overturned by any court and has been
cited in enforcement matters by the Commission.
47
This casts doubt on whether a
speaker can rely on cases like Christian Coalition in attempting to divine what is and
what is not an independent expenditure.
Nor is it clear whether the Bill Yellowtail ad, which neither Congress nor the
Court considered to be express advocacy, would, nevertheless, fall within our colleagues
broad view of Section 100.22(b).
48
The same goes for Hillary the Movie. This
confusion helps no one and, given our colleagues support for Draft B, it is unclear how
speakers can get any clarity or definitive answers, other than by bringing needlessly time-
consuming and expensive litigation.
3. Conflating the Appeal to Vote Test of WRTL and Section 100.22(b)
Makes it Difficult for Speakers to File the Proper Report

Many also argue that the appeal to vote test set forth in WRTL provides support
for Section 100.22(b). In fact, some posit that the tests are the same.
49
This ignores the
Act, however. The statute says that a communication cannot be both an independent
expenditure and an electioneering communication.
50
But the conflation of Section
100.22(b) and WRTLs appeal to vote test does just that, and can make a communication

47
See, e.g., MUR 5440 (The Media Fund), Conciliation Agreement at 4; MUR 5753 (League of
Conservation Voters 527), Conciliation Agreement at 4; MURs 5511 & 5525 (Swift Boat Veterans and
POWs for Truth), Conciliation Agreement at 4.
48
See MUR 5842 (Economic Freedom Fund), Statement of Reasons of Commissioners Cynthia L. Bauerly
and Ellen L Weintraub at 3 (suggesting that an advertisement was express advocacy because it was
reminiscent of the infamous Bill Yellowtail ad).
16
Exhibit I

both an electioneering communication (that constitutes the functional equivalent of
express advocacy) and an independent expenditure (that contains express advocacy).
This is impossible under the Act; it is either one or the other, not both.
51

On a practical level, conflating express advocacy and its functional equivalent
puts speakers like Free Speech in a conundrum, which is exemplified by Hillary the
Movie. The Court in Citizens United held that Hillary the Movie was an
electioneering communication that was the functional equivalent of express advocacy.
52

But if the appeal to vote test from WRTL is the same as Section 100.22(b), then Hillary
the Movie was also express advocacy. Hence, the conundrum: Should the speaker file
an electioneering communication report or an independent expenditure report?

Independent expenditures are reported on Form 5 and are subject to three separate
reporting requirements. First, a report is required when independent expenditures
aggregate in excess of $250 in any quarterly reporting period. In addition to the quarterly
report, a 48-hour report is required when independent expenditures aggregate $10,000 or
more any time during the calendar year up to and including the 20th day before an
election. Each time subsequent independent expenditures relating to the same election

49
See, e.g., Brief for the Respondent at 15, Real Truth About Obama v. FEC, 130 S. Ct. 2371 (2010)
([T]he WRTL standard is nearly identical to the test in Section 100.22(b).).
50
Supra note 25.
51
And if the tests are the same, then one could argue that Chief Justice Roberts overturned Section
100.22(b) sub silentio in WRTL. Under WRTL, the appeal to vote test is not impermissibly vague
because, among other things, it is only triggered if the speech meets the bright-line requirements of [the
electioneering communications definition] in the first place. WRTL, 551 U.S. at 474 n.7. Implicit, then, is
the obverse without those bright-line requirements, the appeal to vote test would be impermissibly
vague. Id. And if that test is the same as Section 100.22(b), which lacks any bright-line requirements
through which speech is first filtered, then Section 100.22(b) may also be impermissibly vague under
Chief Justice Robertss rationale.

52
Citizens United, 130 S. Ct. at 890.
17
Exhibit I

aggregate $10,000 or more, a new 48-hour report is required to be filed. Each 48-hour
report is due within 48 hours of when the communication is publicly distributed or
otherwise publicly disseminated. Finally, a 24-hour report is required when independent
expenditures aggregate $1,000 or more, less than 20 days but more than 24 hours before
an election. Each time subsequent independent expenditures relating to the same election
aggregate $1,000 or more, a new 24-hour report is required to be filed. Each 24-hour
report is due within 24 hours of when the communication is publicly distributed or
otherwise publicly disseminated. For purposes of determining whether 24 and 48 hour
reports are required to be filed, aggregation is based on all independent expenditures
during a calendar year that are made with respect to the same election for a Federal
office.
53
Such reports are due for practically all independent expenditure
communications, regardless of the format (i.e., television, radio, mail, phone calls, etc.),
and regardless of when they are disseminated.

On the other hand, electioneering communications need only reference a federal

candidate, and only concern television and radio advertising that can be viewed by a
significant number of relevant voters. These trigger the need to file Form 9. Political
committees are not required to file these reports. Others are required to file a 24-hour
report when one or more electioneering communications aggregate in excess of $10,000,
30 days before a primary election and 60 days before a general election. Each time
subsequent disbursements for electioneering communications made by the same person
or entity aggregate in excess of $10,000, another report must be submitted. Each 24-hour
report is due within 24 hours of when the communication is publicly distributed. For

53
11 C.F.R. 109.10 (b), (c) & (d).
18
Exhibit I

purposes of determining whether a 24-hour report is required to be filed, aggregation is
based on the total electioneering communications made by a person during the calendar
year.
54

One would think that disclosure should be simple: if a communication is to be
reported, it is either an independent expenditure, and thus subject to that reporting
regime, or it is an electioneering communication, and thus subject to that reporting
regime.
55
Since we believe that the tests are not the same, disclosure is simple for us
Hillary the Movie clearly is an electioneering communication and, thus, Form 9 is
appropriate. But under Draft Bs analysis, it is anyones guess whether a speaker ought
to file Form 5 or Form 9 if its speech meets both (1) the statutory definition of

54
11 C.F.R. 104.20.
55
The FEC has also gone beyond the Act to create other reporting dilemmas. For example, the Act
requires that a person (including a political committee) that makes or contracts to make independent
expenditures aggregating $10,000 or more at any time up to and including the 20th day before the date of
an election shall file a report describing the expenditures within 48 hours. 2 U.S.C. 434(g)(2)(A). The
Act requires that this report include the office sought by the referenced candidate. 2 U.S.C.
434(g)(3)(b) (referring to 2 U.S.C. 434(b)(6)(B)(iii)). But with respect to presidential primaries, the
FEC has muddied this fairly straightforward reporting requirement by requiring sponsors of such
independent expenditures to identify the state primary to which a particular independent expenditure
relates, treating each presidential primary as a separate election. See Advisory Opinion 2011-08 (Western
Representation); Advisory Opinion 2003-40 (Navy Veterans). Free Speech illustrates the administrative
headache this causes. Per the request, they intend to run advertisements from April through November in
three media outlets based out of Cheyenne, Wyoming. Cheyenne is in the southeastern corner of the state;
its designated market area reaches parts of Wyoming, Colorado, and Nebraska. As of April 1, Nebraska
and Wyoming had not held their Democratic presidential nominating contest; therefore President Obama is
potentially a candidate for the Democratic nomination for President of the United States in those states.
Only in Colorado, which held its nominating contest on March 6, is President Obama no longer a primary
candidate. In order to avoid FEC entanglements, Free Speech must figure out (1) the reach of media outlets
in which it advertises, and (2) the schedule of presidential nominating contests (which includes knowing
whether or not the FEC deems certain caucuses to be a primary election). But the Act requires none of this,
and instead only requires Free Speech to identify the office sought, which in this case is President of the
United States. By contrast, the FEC has read office sought to mean state in which presidential primary
is held.
19
Exhibit I

electioneering communication and the appeal to vote test, as well as (2) Draft Bs
expansive interpretation of Section 100.22(b).
56

4. Inconsistent Application of Section 100.22(b) and the Major Purpose
Test Makes Determining Whether a Group is a Political Committee
Difficult for Groups Who Wish to Speak and Disclose

The Act and Commission regulations define a political committee as any
committee, club, association or other group of persons which receives contributions
aggregating in excess of $1,000 during a calendar year or which makes expenditures
aggregating in excess of $1,000 during a calendar year.
57
Our discussion here of
Section 100.22(b) relates to this statutory definition. But even if that definition is met
(which, as noted above, can be difficult for speakers to determine), the inquiry into
whether a group is a political committee is not finished.
The Supreme Court construed the term political committee to encompass only
organizations that are under the control of a candidate or the major purpose of which is
the nomination or election of a candidate.
58
Some courts have held that the Buckley
major purpose test was the product of statutory interpretation,
59
and thus would constitute
the end-point of the Commissions statutory authority.
60

56
We note that Draft B cites to WRTL in support of its expansive view of Section 100.22(b). See Advisory
Opinion 2012-11 (Free Speech), Draft B at 6, 8.
57
2 U.S.C. 431(4)(A); 11 C.F.R. 100.5.
58
Buckley, 424 U.S. at 79.
59
See Natl Org. for Marriage v. McKee, 649 F.3d 34, 59 (1st Cir. 2011), cert. denied, 132 S. Ct. 1635
(2012); Human Life of Wash., Inc., v. Brumsickle, 624 F.3d 990 (9th Cir. 2010), cert denied, 131 S. Ct.
1477 (2011).
60
See Political Committee Status, Supplemental Explanation and Justification, 72 Fed. Reg. 5595, 5602
(Feb. 7, 2007) (The major purpose doctrine did not supplant the statutory contribution and expenditure
triggers for political committee status, rather it operates to limit the reach of the statute in certain
circumstances.) (emphasis added).
20
Exhibit I

The Commission has not defined or clarified the major purpose test through
rulemaking, and instead has opted to consider it on a case-by-case basis.
61
The
Commissions standards have evolved.
62
In the past, the Commission has claimed that a
group needed to file as a political committee if its major purpose was merely partisan
politics or electoral activity. Such arguments were rejected in court.
63
Despite the
rejection of such arguments, however, the Commission continued to use such tests and
other variants of the major purpose test that go beyond that articulated in Buckley, such as
influencing elections.
64

The Commission has also, at times, claimed that dicta from MCFL stating that if
a groups independent spending become[s] so extensive that the organization would be
classified as a political committee
65
is a separate, more expansive test than was
articulated in Buckley. In other cases, some declared that the proper test was campaign

61
Id. at 5596.
62
See MUR 6073 (Patriot Majority 527s), First General Counsel Report at 9 (The Commissions approach
to complaints alleging that Section 527 organizations are political committees has evolved over time.).
63
See FEC v. GOPAC, Inc., 917 F. Supp. 851, 861 (D.D.C. 1996) ([T]he terms partisan electoral politics
and electioneering raise virtually the same vagueness concerns as the language influencing any election
for Federal office, the raw application of which the Buckley Court determined would impermissibly
impinge on First Amendment values.).
64
See MURs 5403, 5427, 5440, & 5466 (Americans Coming Together et al.), First General Counsels
Report at 5 (influence the outcome of the 2004 elections). But see Buckley v. Valeo, 519 F.2d 821, 832,
869-78 (D.C. Cir. 1975) (holding that it is unconstitutional to require any person (other than an
individual) engaged in any act directed to the public for the purpose of influencing the outcome of an
election to file reports with the Commission as if such person were a political committee), affd in part,
revd in part, 424 U.S. at 11 n.7 (The [circuit] court held [the aforementioned provision]
unconstitutionally vague and overbroad on the ground that the provision is susceptible to a reading
necessitating reporting by groups whose only connection with the elective process arises from completely
nonpartisan public discussion of issues of public importance. No appeal has been taken from that
holding.) (quoting Buckley, 519 F.2d at 832).
65
479 U.S. at 262. MCFL can be read to impose an additional limitation on the statute, even narrower than
the Buckley construction, since MCFL speaks of spending that must be so extensive. Id. The word
extensive is defined as covering or affecting a large area; large in amount or scale.
OxfordDictionaries.com http://oxforddictionaries.com/definition/extensive?region=us&q=extensive.
21
Exhibit I

activity, a significantly broader test than that one articulated in Buckley (i.e., nomination
or election or of a federal candidate).
66
In fact, Draft B states that [t]he conclusion that
Free Speech has as its major purpose federal campaign activity is further supported by the
fact that even its non-express advocacy spending will attack or oppose a clearly identified
Federal candidate. As a result, Free Speech will engage only in activities that are
campaign related.
67
Thus, it appears that, even now, to some, merely finding
campaign activity can be enough to turn a group into a political committee.

test.

Even though some Commissioners have applied tests that appear to be more
expansive than Buckley, the Commission has, outside the enforcement realm, stated that
it uses the major purpose test as formulated by the Court in Buckley. For example, as the
GOPAC court observed, although the Commission argued there that sufficient major
purpose could be shown merely by partisan politics or electoral activity, it was
noteworthy that in its opposition to the petition for rehearing en banc in Akins v. FEC,
the Commission supports the formulation of the Buckley test.
68
More recently, the
Commission has represented to Federal courts that it uses the Buckley formulation of the
69

66
MUR 5365 (Club for Growth), General Counsels Report #2 at 3, 5 ([T]he vast majority of CFGs
disbursements are for federal campaign activity and concluding CFG has the major purpose of campaign
activity.); MUR 5542 (Texans for Truth), Conciliation Agreement at 3 ([O]nly organizations whose
major purpose is campaign activity can be considered political committees under the Act and [i]t is well-
settled that an organization can satisfy Buckleys major purpose test through sufficient spending on
campaign activity.); see also MURs 5403, 5427, 5440, & 5466 (Americans Coming Together et al.), First
General Counsels Report at 7-8; MURs 5511 & 5525 (Swift Boat Veterans and POWs for Truth),
Conciliation Agreement at 6;
67
Advisory Opinion 2012-11 (Free Speech), Draft B, at 24 (emphasis added). See also id.
(Communications like these attacking or opposing a clearly identified Federal candidate but not
constituting express advocacy indicate that a group has federal campaign activity as its major purpose.).
68
GOPAC, 917 F. Supp. at 859 n.1 (internal citations omitted).
69
See, e.g., Brief of Appellees Federal Election Commission and United States Department of Justice at 9,
Real Truth About Obama, Inc. v. FEC (RTAO), No. 11-1760 (4th Cir. 2011) (Under the statue as thus
22
Exhibit I

We believe that the Commission must employ the major purpose test in a manner
consistent with Buckley, as the Commission has set forth in its court filings. Draft C
contains our view of what that test entails review of a groups central organizational
purpose and a comparison of that groups spending on behalf of candidates with its
overall spending to determine whether a preponderance of the groups spending was for
the election or defeat of federal candidates.
70
Under current jurisprudence, the
Commission can go no further than that.
71

limited, an organization that is not controlled by a candidate must register as a political committee only if
(1) the entity crosses the $1,000 threshold of contributions or expenditures, and (2) its major purpose is
the nomination or election of federal candidates.); see also Brief for the Respondents at 4, RTAO, 130 S.
Ct. 2371 (2010) (No. 09-724); Brief of Appellees Federal Election Commission and United States
Department of Justice at 5, RTAO, 2008 WL 4416282 (4th Cir. 2008) (No. 08-1977); Federal Election
Commissions Opposition to Appellants Motion for Injunction Pending Appeal at 11, RTAO, 2008 WL
4416282 (4th Cir. 2008) (No. 08-1977); Federal Election Commissions Memorandum in Opposition to
Plaintiffs Motion for Preliminary Injunction at 4, RTAO, No. 3:08-cv-00483-JRS (E.D. Va. 2008);
Defendant Federal Election Commissions Memorandum in Support of Motion for Summary Judgment and
Opposition to Plaintiffs Motion for Preliminary Injunction and Summary Judgment at 10, RTAO, No. 3:08-
cv-00483-JRS (E.D. VA. 2010); Defendant Federal Election Commissions Reply in Support of the
Commissions Motion for Summary Judgment at 20, RTAO, No. 3:08-cv-00483-JRS (E.D. VA. 2010).
70
See Agenda Doc. No. 12-24-B, supra note 6, at 43-47 (citing Buckley, 424 U.S. at 79; MCFL, 479 U.S.
at 262; North Carolina Right to Life v. Leake, 525 F.3d 274, 289 (4th Cir. 2008), FEC v. Malenick, 310 F.
Supp. 2d 230, 234-36 (D.D.C. 2005); GOPAC, 917 F. Supp. at 859; Political Committee Status,
Supplemental Explanation and Justification, 72 Fed. Reg. 5595, 5596-5597 (Feb. 7, 2007)).

71
We also note that the Commissions use of a case-by-case approach to ascertain major purpose has failed
to give practical guidance to those who wish to comply, as it fails to address the temporal component of
disclosure. Specifically, if a group is a political committee, it must file a statement of organization within
ten days of becoming a political committee. 11 C.F.R. 102.1(d). By that time, it needs to have secured a
treasurer, set up a separate bank account, and undertaken the other requirements of political committee
status, which the Supreme Court has already said are burdensome. See Citizens United, 130 S. Ct. at 897.
Since the major purpose determination is done on a case-by-case basis, there is no way for a group to know
when the ten day period begins to run, or when the first filing is due. Similarly, the Commission has never
articulated a period within which it will make its after-the-fact, case-by-case determination, leaving those
wishing to comply to guess whether the Commission will review activity only within a calendar year, fiscal
year, election cycle, or some other undefined period. Such an approach makes the reach of the Act
notoriously unclear, and has left speakers vulnerable to lengthy, burdensome investigations. See Christian
Coalition, 52 F. Supp. 2d at 51 (observing that the FECs administrative investigative stage can be quite
lengthy in its own right and noting that the process was lengthened in this case by the intervening
decision of our Court of Appeals, causing resolution of the case to occur in 1999, seven years after the
original speech given in 1992); GOPAC, 917 F. Supp. at 852-53 (noting that [o]ver three years later, after
the Commission concluded its investigation, on December 9, 1993, it notified GOPAC that there was
probable cause to believe that it was a political committee, spurring two more years of legal wrangling
that culminated in the district courts opinion, issued seven years after the FEC claimed GOPAC first
became a political committee in 1989); MUR 5440 (The Media Fund) (lasting nearly four years from when
23
Exhibit I

Conclusion
The Court in Buckley recognized that the distinction between discussion of
issues and candidates and advocacy of election or defeat of candidates may often dissolve
in practical application.
72
In order to avoid serious problems of vagueness
73
that
might deter those who seek to exercise protected First Amendment rights,
74
the Act
must be read in accordance with the construction imposed by the Court, even for
disclosure-only provisions. Thus, in Buckley, the Court imposed the express advocacy
limitation upon the definition of expenditure for both the statutory independent
expenditure spending limit and the statutory independent expenditure disclosure
requirement.
75
And more recently, in Citizens United, the Court was clear that:
The First Amendment does not permit laws that force speakers to retain a
campaign finance attorney, conduct demographic marketing research, or
seek declaratory rulings before discussing the most salient political issues
of our day. Prolix laws chill speech for the same reason that vague laws
chill speech: People of common intelligence must necessarily guess at
[the laws] meaning and differ as to its application.
76

the Media Fund was formed in 2003 to its conciliation agreement in 2007). Cf. WRTL, 551 U.S. at 469,
474 n.7 (noting that the proper standard . . . must entail minimal, if any discovery, to allow parties to
resolve disputes quickly without chilling speech through the threat of burdensome litigation and that
there generally should be no discovery or inquiry into the sort of contextual factors highlighted by the
FEC and intervenors) (internal citations omitted); see also Sackett v. EPA, 132 S. Ct. 1367, 1375-1376
(2012) (Alito, J. concurring) (discussing problems inherent in agency relying on informal guidance and
case-by-case review in lieu of a clear formal rule).
72
Buckley, 424 U.S. at 42.
73
Id. at 76.
74
Id. at 77.
75
Id. at 44, 80. Even after narrowing the scope of the expenditure limit to express advocacy
communications, the Court still struck the statutory limit. By contrast, after limiting the disclosure
requirement to express advocacy communications, the Court upheld the narrowed independent expenditure
disclosure regime.

76
Citizens United, 130 S. Ct. at 889 (citing Connally v. Gen. Constr. Co., 269 U.S. 385, 391 (1926)).
24
Exhibit I


The Commissions prior history with Section 100.22(b) demonstrates that
speakers like Free Speech will continue to have to seek advisory opinions to determine
whether speech constitutes an independent expenditure. And our colleagues failure to
restrict themselves to the regulatory text and Furgatch when applying Section 100.22(b)
means that many of those advisory opinion requests, like this one, will remain
unanswered. Finally, the moving target of the major purpose test creates confusion as to
who is or is not required to register and report as a political committee. Thus, future
speakers will have to either guess whether reporting is required and, if so, what those
reports should be, or seek expensive, time-consuming redress from the courts. That this
is where we have arrived is regrettable.
25

Exhibit I

Attachment A

Below is a list of many of the factors that the General Counsels Office has recommended
that the Commission consider, and that several Commissioners have considered and
relied upon, when determining whether or not a communication constitutes express
advocacy under Section 100.22(b):

If an advertisement as a whole lacks a specific legislative focus (MUR 5988
(American Future Fund), Statement of Reasons of Chairman Steven T. Walther
and Commissioners Cynthia L. Bauerly and Ellen L. Weintraub, Attachment A at
12);
If an advertisement presents a collection of issues, highlighting [the
officeholders] past stances with respect to these issues and using the
[officeholder] to link the issues together (Id.);
If by referencing a wide-range of issues, an advertisement focuses on a
candidates qualifications, accomplishments, and fitness for office (Id.);
If an advertisement is candidate centered (Id.);
If an advertisement constitutes a request for electoral support by characterizing a
public official as an independent voice (Id. at 12-13);
If an advertisement tells the viewer to call and thank the official for official
action (Id. at 13);
If an advertisement says someone has demonstrated leadership, or has been a
common sense voice, it is an emphasis on character, which equates to express
advocacy (MURs 5910 & 5694 (Americans for Job Security), Statement of
Reasons of Chairman Steven T. Walther and Commissioners Cynthia L. Bauerly
and Ellen L. Weintraub, Attachment A at 9);
If an advertisement says someone has experience, it is somehow an emphasis
on qualifications, which equates to express advocacy (Id.);
If an advertisement says someone is a small businessman for 17 years, it is
somehow an emphasis on accomplishments, which equates to express advocacy
(Id.);
If an advertisement fails to urge some specific action to be taken by the elected
official (Id.);
If an advertisement asks the viewer to ask[] [the candidate] about his plans to
bring our children back to [the state] it is the same as asking [the candidate]
what his policies would be if elected to the U.S. Senate (Id. at 11);
26

Exhibit I

If an advertisement fails to include a contact phone number (Id.);
If an advertisement questions a pubic officials leadership potential (Id. at 12);
How a viewer would reasonably interpret an advertisement (Id.);
When the organization that sponsors the ads was created (MUR 5842 (Economic
Freedom Fund), Statement of Reasons of Commissioners Cynthia L. Bauerly and
Ellen L. Weintraub at 1);
If the majority of funds were donated by one individual (Id.);
If almost all spending occurred in the three months prior to the general election
(Id.);
If a communication smears the reputation of the candidate (Id. at 3);
If a communication attacks a candidates voting record (Id. at 4);
If an advertisement fails to include a call to action related to pending legislation
or to an issue (Id.);
If an advertisement fails to urge the listener to contact their representative
regarding an issue (Id.);
If a mailer questions a candidates character, qualifications, and lack of
accomplishments, [then it] is unambiguously electoral (Id., Attachment A at 15);
If an advertisement touts or attacks character, qualifications and accomplishments
(MUR 5831 (Softer Voices), Factual & Legal Analysis at 8);
If an advertisement highlights a candidates character and qualifications by calling
him tough (Id., First General Counsels Report at 12);
If an advertisement urges viewers to fill the need for leaders tough enough
then it means vote for the candidate who is tough enough (Id.);
If an organization did not request an Advisory Opinion from the Commission to
clarify whether its activities were permissible under the Act (MUR 5440 (The
Media Fund), General Counsels Report #6 at 16);
If an advertisement states [w]e need a President who then it is an exhortation
to vote (MUR 5440 (The Media Fund), General Counsels Brief at 17);

If a mailer highlights then-presidential candidate Senator John Kerrys military

service, combat medals, personal courage and bravery, observing, in text
positioned next to pictures of George Bush and Dick Cheney that These Men
27
Exhibit I

Could have Served in Vietnam, But Didnt, or extols the candidates character
and fitness for the office of President, citing his bravery and selflessness . . . then
in context, [it] can have no other reasonable meaning than to encourage
[Kerrys] election (even though the mailer did not reference the election or refer
to any of the named officeholders as candidates) (Id. at 17-18);
If an advertisement identifies and shows images of competing candidates while
criticizing one and praising the other with the exhortation [y]ou better wake up
before you get taken out, it is express advocacy because [i]n the context of
contrasting the candidates, the exhortation to wake up can only be understood to
be asking voters to reject [one candidate] and instead vote for [the other] (Id. at
19);
If an ad[] focus[es] on Kerry having fought and bled in Vietnam while Bush
allegedly avoided service, then it is clearly praising Kerrys character and
fitness for the office of President . . . and in context, can have no other
reasonable meaning than to encourage his election (Id.);
If an advertisement relates to the upcoming election by identifying the
competing candidates, praising Kerry, while criticizing Bush and ask[s]
listeners, [w]ouldnt it be good to have someone our side?, then the ad is
encouraging them to vote for the candidate whom the ad unmistakably implies is
on the listeners side in this case, Kerry. The only manner in which the listener
can act on the message is to vote for Kerry in the upcoming election (Id. at 20);
If an advertisement references the office of president it is a reference to the
election (MUR 5440 (The Media Fund), Transcript of Probable Cause Hearing at
32);
Considering timing or placement in terms of a geographical area (Id. at 36);
If an advertisement talks about a candidate in strong terms (Id. at 42-43);
If one assumes that the viewer/reader/listener knows that the individual referenced
in an advertisement is a candidate (Id. at 46);
If an advertisement contrasts presidential tickets (Id. at 49);
Whether an organization plans to be active in future election cycles (Id. at 52);
If advertisements about issues are aired in battleground states as opposed to states
where the key members of the House and Senate may be located (Id. at 60-61);

If an advertisement challenges a candidates capacity to lead, by asserting that

he cannot be trusted, and ask[ing] why citizens should be willing to follow
him as a leader then it unambiguously refer[s] to Senator Kerry as Presidential
candidate by discussing his character, fitness for office, and capacity to lead, and
28
Exhibit I

29

ha[s] no other reasonable meaning than to encourage actions to defeat him

(MURs 5511 & 5525 (Swift Boat Veterans and POWs for Truth), Conciliation
Agreement at 25);
If an advertisement says a candidate cannot be trusted and is unfit for
command then it means that the candidate lacks an essential requirement to lead
and the only manner in which the reader can act on the message Kerry cannot be
trusted is to vote against him in the upcoming election (Id. at 26);
What the reader is to understand (Id. at 27);
If an advertisement asserts that an officeholder was misleading the American
people on issues from the Iraq war to financial security and Medicare (MUR
5754 (MoveOn.org Voter Fund), Conciliation Agreement at 12);
Advertisements raising issues such as spending on the war and Iraq, prescription
drugs, overtime pay and job outsourcingeach with the tag line, George Bush.
Hes not on our side. or Face it. George Bush is not on our side were
considered express advocacy (Id.);
The reasonable mind of the viewers (MUR 5634 (Sierra Club), First General
Counsels Report at 11);
How these factors compare on balance (MURs 6051 & 6052 (Wal-Mart Stores,
Inc.), First General Counsels Report at 10).


Exhibit I
Exhibit J
Exhibit K
Open Meeting of the Federal Election Commission
Dated April 12, 2012
Transcribed May 9, 2012

1


This is a recording of the open meeting of the Federal
Election Commission held on April 12, 2012. Should you have
questions after listening to the recording, please call the
FEC at 1-800-424-9530, or email us at info@fec.gov.

(Start Audio)

Chairman Hunter: The Commission is back in session to
consider Draft Advisory Opinion 2012-11 Free Speech. We
have Mr. Benjamin Barr here joining us today, welcome.
Thank you for coming.

Benjamin Barr: Thank you for having me.

Chairman Hunter: And we have a presentation this morning
by Mr. Neven Stipanovic from the Office of General Counsel.

Neven Stipanovic: Thank you Chair Hunter, good morning
Commissioners. Agenda Documents 12-24 and 12-24-A respond
to a request for advisory opinion filed on behalf of Free
Speech.

Free Speech plans to run 11 advertisements in various media
including radio, TV, the Internet and newspapers. It also
plans to ask for donations from individuals to finance its
activities.

Free Speech asks three questions. First, will its ads
expressly advocate the election of defeat of a clearly
identified federal candidate. Second, will its proposed
donation requests solicit contributions, and third, will
Free Speechs proposed activities require it to register
and report with the Commission as a political committee.

There are two Drafts before you. Agenda Document No. 12-24
concludes that none of the ads would be express advocacy.
None of the proposed donation requests would solicit
contributions and Free Speechs proposed activities would
not require it to register and report as a political
committee.

Agenda Document No. 12-24-A concludes that 7 of the 11
proposed ads would expressly advocate the election or
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2
defeat of a clearly identified federal candidate. Two of
the proposed donation requests would be solicitations of
contributions and Free Speechs proposed activities would
require it to register and report with the commission as a
political committee.

The Commission received one comment on the advisory opinion
request. I would be happy to address any questions that you
may have. Thank you.

Chairman Hunter: Thank you. Are there any questions or
comments?

(silence)

Chairman Hunter: Commissioner McGahn.

Commissioner McGahn: I support Draft A which does not
impose any reporting obligations, so, anyone, I guess that
supports the other Draft, the burden is on them to explain
why this respondent comes within the Act. But I am happy to
explain why I think that Draft is incorrect, but I am
curious to hear the analysis as to why these folks have to
report.

Chairman Hunter: Madam Vice Chair.

Vice Chair Weintraub: Thank you Madam Chair. I support
Draft B. Its a little confusing because Draft B is
actually in an Agenda Document that has an A at the end of
it, but I assume Mr. Barr knows which one is which. In
fact

Benjamin Barr: Im up to the task.

Vice Chair Weintraub: He probably would have figured it
out even without any numbers at all which one I would
support and which one my colleagues would support. I dont
really think Draft B requires any further explanation. I
have to say Ive never seen an advisory opinion that looked
remotely like Draft A.

If I were you Mr. Barr, I might be a little bit offended.
They seem to think they need to write your brief for you.
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They dont seem to think you can find the precedents out
there.

Benjamin Barr: What brief?

Vice Chair Weintraub: Sorry?

Benjamin Barr: What brief?

Vice Chair Weintraub: What brief, yes. Well I dont know
what else to call the 53-page thing that landed on my desk
last night, but umI mean Im not really surprised to learn
that my colleagues dont support any interpretation that
would umunder 100.22(b). I was a little bit surprised that
theyre not even willing to apply 100.22(a).

The financial reform ad istalks about voting. It says you
shouldnt vote for someone and yet its somehow not express
advocacy. Theres a lot of tap-dancing in there. Theres a
suggestion that you cant look atI dont actually
understand this, because on one page, on I guess page 25,
it says although most know theres and election this
November, the regulation does not permit looking to
external context and events of the day, when ascertaining
the electoral portion.

Actually, regulation says when taken as a whole and with
limited reference to external events such as the proximity
to the election, but then two pages lateror three pages,
on 28, it says, well theres going to be this expansive run
in excess of 6 months, which supports the conclusion that
the advertisement is not express advocacy because here we
are, 6 months out from the election, and surely nobody
would be talking about the election now. Theres no
discussion going on now about the election, thats 6 months
from now. Except virtually every day I hear discussion of
it, but, okay.

I dont really understand how the timing of it can be
irrelevant on one page, and determinative three pages
later. And indeed if express advocacy couldnt exist 6
months out from the election, one would wonder at the
meaning of our content standard 109.21 that uses express
advocacy in its functional equivalent as the, as the sole
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content standards outside of the time windows closer to the
election.

I dont actually think its that hard to figure out when
theres express advocacy and when theres an issue ad. I
hear really compelling issue ads everydayads that Im
fairly confident of being run with the goal of influencing
voters, but I have to agree, theres nothing in there about
the election. They talk about policy issues, theyas the
Supreme Court noted in WRTL when describing content that
would be consistent with that of a genuine issue ad, the
ads focus on a legislative issue, take a position the
issue, exhort the public to adopt that position, and urges
the public to contact public officials with respect in the
matter.

Like I said, I hear good ones every day, and I dont think
its that hard to write one if your goal is to actually to
write an ad, a persuasive ad, and not to set up a test
case, but, I dont know whether I need to disclose this as
an ex parte contact, but I better do it just in case. I
actually used one of your ads as an example.

I was teaching a class earlier this week and they asked me
what I do on a daily basis as a Commissioner, and I said,
well, you know, heres an example of the kind of decision
that Ill have to make this week, and I read them the first
ad, the one with tag line talk about ranching, and I
gotta tell you, everyone burst out laughing, so thats
justif that laughter was an ex parte, I want to fully
disclose it. Im not sure what the significance of the
laughter is, but I just offer that to you incase you want
to think about whether thats the most effective means of
communicating you messagethats obviously, entirely your
choice.

But I think Draft B explains its analysis of every ad. Im
comfortable with it. Id be prepared to vote for it today.
Its my understanding that there was some desire not to have
a vote today, is that right?

Chairman Hunter: I think thats right.

Vice Chair Weintraub: Okay.

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Benjamin Barr: May I reply to your comment Madam Vice
Chair?

Vice Chair Weintraub: I dont really have any questions
for you.

Benjamin Barr: Okay.

Chairman Hunter: Commissioner McGahn.

Commissioner McGahn: I thought that would be the time
youd say no further questionsno need for redirect your
honor.

A couple thoughts on B, and let me take this at a little
bit of a different angle. Lets assume B is correct as
written, and let me emphasize were assuming this, that
doesnt mean I think its correct as written. It says
several of the ads are express advocacy and thus
expenditures, I assume. Two of the solicitations would
constitutefunds received would constitute contributions,
and then your client, which I understand is 3 individuals,
would be a political committee.

First question is the mechanics of what this all means.
According to Draft B, $7,000 and change are independent
expenditures; $7,166.66 are IEs. Lets say you left here
today and decided, okay, I give up, theyre independent
expenditures, and you put those ads on the air. The
question then is, what reporting would you have to file.
Would you have to file an IE report?

Now, as I understand it, the Wyoming primary is Saturday,
April 14, so disseminations within the 24-hour notice
periodbecause you are within 20 days of the election, more
than 24-hours out of the electionand the amount at issue
is $1,000 or more, so you have to file a 24-hour report.
But, because its a presidential primary, according to the
form, you need to indicate which state the IE pertains to,
to use the words of the instructions, election for which
the disbursement was made. So certainly thats Wyoming,
but what if you buy Cheyenne television. Cheyenne, I looked
this up, is in the DMA, is Scottsbluff County, Nebraska is
in the DMA of Cheyenne. Nebraska also has its caucus on
Saturday. So, if you are trying to reach the eastern part
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of Wyoming, youre also out there in Nebraska, maybe this
is helping you realize what you may have to do if you have
to file these reports. It took some effort to figure this
out, even ascertaining whether or not this state caucus was
actually an election, was quite a bit of work, and I have
really, unlike you, nothing to do but worry about this kind
stuff because Im a Commissioner at the FEC, and it still
took me a very long time to figure this out.

If you want to try and get the western part of the state,
maybe you buy Idaho City TV which actually goes into Teton
County, Wyoming. So if you go out and buy Idaho, now you
are in that state and guess what they have on Saturday?
Their caucus. We think. The FEC chart says so, but the FEC
chart thats publicly available on the website does not say
the Nebraska caucus is an election. My research says it is.
Now the chart does have a disclaimer, and says this is
based on state law. So to know how to do the FEC report,
you dont only look to FECA, you look to state law to
figure out whether somethings an election. But this is
just disclosure, so they say.

So how do you split this up? Do you show the full amount or
justdo you do it per state? Theres really no guidance.
The Western Reps AO sort of answers the question with
respect to Facebook ads, or Internet ads, but that says
essentially estimate, divide by theit was sort of a
workable solution that Im not sure applies to TV, but the
Commission has never really said. In fact, if you look at
the adthe Act, the Act only requires that you state the
office sought for the candidate that youre talking about.
Obviously, assuming President Obama is a candidate even
though he is not so referenced in these ads, we know he is.
The office sought is President, not nominee of the state of
Wyoming, but yet thats what you have to put on the report.
So theres an issue with whether or not thats even within
the reach of the Act.

Then you have Facebook ads which, Draft B, at least one
says, is express advocacy under (b). Im not sure how you
break that down, because we have a situation where (b) has
already been held to be unenforceable in the First Circuit
in Southern District of New York, not because of some
constitutional issue, but because its beyond the Act. So
you are going to run an ad, I assume a Facebook ad is gonna
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be seen by people nationally. So we have a situation where
in part of the country its not express advocacy, another
part of the country I guess it is. Good luck. Im not sure
how that factors in to how youre supposed to report this.

Now, what if you wait until next week, which I guess is
what we may do because we need more time. Then youyoure
not going to need to file a 48-hour report because well,
youre not gonna spend more than ten grand. So theres two
different reporting thresholds there.

The timing issue is something I would like to ask you
about, and you havent had a lot of time to review the
Drafts, but I, you know, given the time, itsweve been
here for awhile, so maybe youve had a chance to peruse
them.

The question I have with Draft B is when does Free Speech
actually become a political committee? I read the Draft as
saying theyre a political committee essentially now. As of
the moment that you raise or spend more than a $1,000 I
guess, but it really seems to say youre already a
political committee.

The question is, what if you air the ethics TV ad first,
which we all agree, I think, is not express advocacy. So if
you raise it today and assume the money you received is in
response to one of the solicitations that all agree are
not, or at least both Drafts agree are not contributions,
right, so you havent received contributions, you havent
made expenditures under the Act, youre doing what I think
everyone thinks is not an expenditure, its at best an
electioneering communication. But if youre a political
committee now, you dont need to file the EC report. So,
you cant be a political committee yet. Do you agree, does
that make sense?

Benjamin Barr: Absolutely.

Commissioner McGahn: Okay. So, lets say next you run the
gun control ad, which is $2,000 and lets say you spend
that money now, you load up for whatever reason. Are you a
political committee now under Draft ADraft B, sorry, Draft
B? Youre now at fifty-fifty, sort oftwo ads but the cost
is different. But you have the public statement of purpose
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that says youre not a political committee. But Draft B
says that once you cross the $1,000 amount, you are a
political committee.

Benjamin Barr: It says even more than that. The Draft B
analysis of solicitations moves beyond any regulable set of
communications thats express advocacy and asks about issue
advocacy that is campaign related and looks at the money
there as part of the major purpose determination that can
trigger the political committee status. I have no idea
where that line is. My clients have no idea where that line
is, theyd just like to speak.

Commissioner McGahn: The concern I have with Draft B is,
Im not sure when, even if its correct, when do you really
become a political committee under the Act. It seems to say
you are because we know you are. And I really read it as
essentially doingalthough it says its doing the
expenditure and contribution analysis first, it really is
doing major purpose first, and then tagging on expenditures
and contributions after the fact. The Commission used to do
that once upon a time. But then the Commission said theyre
not going to do that anymore and made that decision public,
which was the right thing to do, I think. Because unless
you go through the Act, you neveryou cant become a
political committee, major purpose just limits to reach the
Act. But Im kind of curious to know what ifdoes Draft B
change its answer, if the spending comes in a different
sort of order?

Benjamin Barr: No, I think...

Commissioner McGahn: I wasnt really (talking over each
other) I was throwing out... Were also deliberating while
we ask you questions. I dont know the answer to that.

(silence)

Commissioner McGahn: Seems no one else does either. Okay.

Benjamin Barr: What I was pointing to you earlier is I
just, um, Draft Bs analysis of solicitation on page 24,
the conclusion that Free Speech has as its major purpose
federal campaign activity, is further supported by the fact
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that even its non-express advocacy will attack or oppose a
clearly identified federal candidate, and

Commissioner McGahn: By definition that actually shows a
major purpose of something other than the nomination or
election of a candidate. Right? Unless youre presuming
this sort of major purpose, know it when you see it, and
then we sort of figure out where expenditures and
contributions happen later.

If you believe what the Citizens United Court said, that
PACs are separate entities that exist, I would think you
would have to exist before you speak. And what the
Commission has never done is really given any sort of
guidance as to when that point occurs. Its always done
after the fact on a case-by-case basis. Here it has a very
practical concern. If you do something ahead, before you
become a pollets assume youre not a political committee
well, until youre a political committee. Meaning at some
point you have to spend at least $1,000 on expenditures or
receive at least a thousand dollars in contributions. If
you do the EC, before you become a political committee,
does that electioneering communication then also show major
purpose that you are a political committee even though you
made the EC before you actually became a PAC? I dont see
how it can, but Draft B seems to say thats exactly how it
works. I dont get it. It seems to me to be circular.

Now on the other hand, if you do all your ECs first and
then you do nothing but IEs, then you are starting to look
more like a political committee, assuming that theyre IEs.

So I just, I dont understand how this works timing wise,
or how anyone could know this. Even getting an AO doesnt
answer the question, because it still becomes fluid after-
the-fact decision making. As a practical matter, if youre
a political committee and you do an electioneering
communication first, you dont have to file Form 9,
Electioneering Communication Reports. Those are only for
non political committees. So if you file Form 9, that
means, I guess youre not a political committee, but then
you are a political committee so you didnt have to file
that form.

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10
It just doesnt make any sense. Now, someone can say, well
thats cute, it is cute, but these are the facts of the
case and this is a real case with 3 individuals who want to
speak. Im not raising big constitutional fancy stuff, Im
not doing any of that, Im talking about what the Act means
and what we actually do with a real case.

The analysis of gun control and educated voters vote on
principle. The analysis makes it sound a lot like Hillary
the Movie. Its the same kind of language that the Supreme
Court found to come within the appeal-to-vote test. I dont
think its nearly as strong as the movie. The movie was
hours and hours of Hillary Clintons bad. But its the
same kind ofit has the same kind of feel. Im assuming
thats why it comes within 100.22(b). Since the FEC said
100.22(b) is the same as the WRTL appeal-to-vote test.
Recently a district court agreed with that. The Real Truth
About Obama down in Virginia, the district judge said, yes,
its the same basic test.

Heres the question I have for you, though. The Supreme
Court treated Hillary the Movie as a prohibited EC
because it came within that test. It came within the
appeal-to-vote test, thus was the functional equivalent and
the issue was whether or not they could prohibit that
electioneering communication. If appeal-to-vote and
100.22(b) are the same thing, then the movie also comes
within (b). If it comes within (b), then that makes it an
expenditure? But the Act says it cant be both an
expenditure and an electioneering communication. So, which
reporting regime are you subject to? And assume for the
sake of argument that the Draft is correct, that both those
ads come within the appeal-to-vote test, as articulated by
US Supreme Court and are the functional equivalent of
express advocacy. Is it an EC per the Supreme Court, or an
IE per Draft B?

Benjamin Barr: We dont know where that line is and also
disturbing in Draft B is the internal inconsistency. The
Facebook version of the gun control ad, thats D on page
10, speaks to the character, qualifications and fitness of
Obama for office. But then we come to F on page 11, which
also speaks to the character, qualifications and fitness of
Obama for office, and that is deemed express advocacy. I
have no idea where the lines are. The hope of this advisory
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11
opinion request was to be able to obtain clear lines of
demarcation, so my clients dont go to jail, and dont get
fined for speaking.

(silence)

Commissioner McGahn: Curious if anyone knows what, given
that the tests are now the same test, whats one to do when
theres two different reporting regimes at issue. And the
Act says it cant be both.

(silence)

Commissioner McGahn: Okay, no explanation for that one
either.

Final question on Draft B, the first ad, environmental
policy, which apparently was funny. B, to go through an
analysis of (b), you need to identify an electoral portion
thats unmistakable, unambiguous, and suggestive of only
one meeting. The DraftDraft B to me doesnt really
identify whats the electoral portion. It says it contains
one that expressly exhorts listeners to take action this
November. So I guess that means this November is not the
electoral portion. Its the action that youre urged to
take this November thats the electoral portion. But then
later it says the tagline talk about ranching which is
sort of the action urged this November, does not negate the
advertisements express electoral advocacy. But I thought,
talk about ranching was the express electoral advocacy
per Draft B.

Then in an interesting move, it claims its an obvious non
sequitur. Okay, that may be true but I dont see how that
makes it express advocacy. If anything, that makes it
confusing and probably elicits laughter, because its so
confusing and not an effective message because well, its
not clear. But then it says no reasonable person can
conclude that the advertisement actuallythe advertisement
actually encourages listeners to talk about ranching in
November rather than advocating against President Obama,
even though thats precisely what the ad says. So it says
what it says, but it doesnt really mean what it says
because no reasonable person would really think thats what
it means, because I guess we all know what you really mean.
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12

And then we use the predominantly-criticizes-a-candidates-
character-qualifications, fitness-for-office test as
opposed to the E and J language of (b) where criticism and
characters (inaudible) character qualification, fitness for
office could be express advocacy. It has no other
reasonable interpretation. There is no predominant test in
the E and J. Talk about ranching could only be understood
in the context of the election. So, but for the election,
no one understands what your ad means. Thus the
advertisements direction to call your neighbors to discuss
President Obamas ranching policies this November
encourages actions to defeat President Obama, but it never
says what those actions are, that are somehow encouraged.

Im trying to find the electoral portion which I think is
one of, is really the first step in analysis of (b). Im
just looking at the reg, Im not talking where the
constitutional endpoint is or any of that, or whether (b)
is within or not within the Act, Im having trouble putting
it in that framework of (b), so I at least know what my
next question would be.

So, can anyone explain to me what in the ad is the
electoral portion?

(silence)

Benjamin Barr: May I supplement this Commissioner McGahn?

Commission McGahn: Maybe you can identify the electoral
portion.

Benjamin Barr: I have noId like to know where the
electoral portion is. It seems to me like the yeti; its
often sighted, but never quite seen. You know, Wyoming is
home to $943 million dollars in agricultural economy in a
year. Eleven-thousand farms averaging, average 2,700 acres.
Talk about ranching? Absolutely. That is the predominant
agricultural ranching state. It is a message of dire
importance for the clients to be able to get out and talk
about that issue. It may seem silly to those living in
Beltway. You may laugh out loud about it, but for people
living in Wyoming who want to speak out, these are
dramatically important issues.
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13

I went through and tried to figure out the internal
inconsistencies on Draft B and I cant quite find the
electoral portion--its used, that term is used in several
of the ads in the analysis. I dont know, I think what it
maybe is saying the words this November, or this fall,
I think that sends you to jail, but not saying it doesnt
send you to jail. I dont know. Thats my theory.

Commissioner McGahn: Its not jail.

Chairman Hunter: Excuse me. Lets be clear, were not
talking about jail.

Commissioner McGahn: Well, unless youre a foreign
national, then I think we are. Right?

(talking over each other)

Benjamin Barr: Well, a knowing and willful violation of the
law.

Commissioner McGahn: The Commissions never taken (b) off
the books, and youre not a foreign national, but actually
if youre a foreign national that intentionally runs an
independent expenditure, I think thats still banned,
right? I think (b), the Commissions never said (b) does
not apply in that context, at least the Commission has
never said that.

Benjamin Barr: My understanding failing to report as a
political committee

Commissioner McGahn: Jails kind of an over statement for
the purposes of the facts of this ad. If you call it FEC
jail, maybe that will get laughter, but its

Benjamin Barr: Civil penalties and the like, we would like
to avoid. We dont know what the electoral portion is.

Chairman Hunter: Commissioner Bauerly.

Commissioner Bauerly: Thank you. I dont think thatI
certainly dont suggest that ranching isnt an important
part of our entire country, and certainly Wyoming. I think
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14
that, and I assume the point is that people in Wyoming and
those who are concerned about ranching, and I assume some
folks in my home state of Minnesota who maybe wouldnt
havewe call them farms, depends on how big it is and what
your predominant part of your farm is, whether its bovine
or othersbut, people talk about it all year long, and so
Ithe electoral portion here I think this is where the line
is and I recognize that, that your preference for where the
line might be, might lead you to conclude that these are
internal inconsistencies in the Draft, but I just disagree.
The line is, when you tell people that Obama cannot be
counted on to represent Wyoming values and this November
you should call your neighbors and talk about ranching, I
assume you talk to your neighbors about ranching about the
price of feed about the price of cattle all the time. But
when youre calling them in November to talk about how
Obama cannot be counted on to represent these Wyoming
values that are fundamental to ranching, that to me is the
electoral portion, and I dont think that that would be so
particularly difficult.

I just, at the outset I should state that I support Draft
B. I would be prepared to vote on it today, if others are
ready to support Drafts. You did present us with obviously
some very detailed ads, and weve gone through each of them
and I think applied the regulations as in my view they need
to be applied.

You had mentioned two othera set of advertisements both
entitled gun control, one is a Facebook advertisement and
one is a television advertisement. Of course the
scripts,..the text is different from those so we have to
apply the test to each of them separately, even though they
have the same title.

The Facebook advertisement is, I suppose by necessity, much
shorter. It simply states that Obama supports gun control,
dont trust him. Support Wyoming state candidates who will
protect your rights. That one Draft B concludes, is not
express advocacy. The call to action is about state
candidates. It does mention Obama and so maybe wed be in
an EC world depending on what time we might be in andbut
for purposes of express advocacy, that one is outside of
that line.

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15
The other one, although has the same title, explicitly says
that people should seriously doubt the qualifications of
Obama because hes an ardent supporter of gun control, and
that this fall you should get enraged and get engaged and
educated, and that is an electoral nexus and an electoral
portion that deals with a federal candidate. It also, I
think, tells people to think about this when theyre
looking at state candidates as well, but that doesnt
diminish the fact that it is connecting the qualifications
of the President and what one is suppose to do in this
fall. Then of course, the only way one can affect their
views on some of these issues is to go and vote on them.

So there are a lot of issues about, you know, timing,
raised, of course, this isnt just athis isnt a fact
pattern that weve come across, in sort of an MUR context.
Youve told us this is a set of activities that you would
like to engage in. Youve asked us for an opinion as to
what, where they fall in a line and what is the result in
terms of political committee status. So, we dont, while I
would agree that youre not a political committee at this
very moment, but when this group of people does spend, make
a $1,000 in expenditures, or receive in contributions, and
given what you have told us about your planned activities
and the set of your planned activities, it wouldyou would
become a political committee.

I dontwe dont have to get into, because you have come to
us and presented this set of information, another group
that might be out there that today spends $999 on one thing
and another $100 on another thing and when did they become
a political committee, youve explained to us what your
planned, what your proposed spending is, this is your plan
at this point in time, obviously there might be things that
you do in the future, but based on this advisory opinion
request youve presented to us, I think Draft B reaches the
right conclusions.

Thank you.

Chairman Hunter: Commissioner McGahn.

Commissioner McGahn: Im not sure I agree with some of
that. I heard it to say that, this really hasnt come up
before, in a MUR, and how I heard that was that the issue
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16
of whether or not its and EC or an IE, hasnt come up. And
if thats what I heard, I just, I think it has in
Americans For Job Security it came up and footnote 13 of
half the Commissions Statement of Reasons makes clear that
they thought a certain ad was 100.22(b) and came within the
WRTL test, and if it was within the electioneering
communications statute, it would be within the test. So
this has come up and a number of Commissioners have said
that essentially its both. Which raises the practical
question I raise, is which report do you file? Form 9 or
Form 5. Theyre two different reports, two different
schedules, two different thresholds. It couldnt be more
different.

I think something that gets lost when people talk about it
is they assume its just kind of one report and its the
same report. Its not the same report; its two completely
different schedules.

I do need some help on the financial reform ad. Because, to
me, thats a very close call. Because Im concerned, Im
concerned that that can be read--and again Im not looking
at external things, because under 100.22(a), you dont look
for the external sorts of conduct, thats (b). So of course
the analysis has references to that in the second part of
the analysis in Draft A, because, well thats what the
reg(?) calls for. But under (a), I look at this and Im
seeing something that looks a lot like MCFL. I think its a
step beyond MCFL, but Im not sure that makes it beyond the
Act.

Id like to get your take on the financial reform ad, as
to why thats not MCFL, since it identifies a candidate, it
identifies him as supporting the financialto read it sort
of paraphrase, it identifies Obama, it supports financial
bailouts, then says what kind of person supports bailouts.
Now Draft A sort, you know, says well, it says at the
expense of the average Americans, it never says Obama says
that. Maybe thats, maybe thats the riddle and Ive
uncovered the riddle, but then it says not any kind we
would vote for and neither should you. So it certainly has
a electoral, I think that says dont vote for someone who
supports bailouts at the expense of average Americans. Then
it has this call to action. Its not like the MCFL, this
is not an endorsement of a candidate thing, but I think
Exhibit K
Open Meeting of the Federal Election Commission
Dated April 12, 2012
Transcribed May 9, 2012

17
its distinguishable from MCFL, but I can see someone
saying, well its still kind of the same idea, so could you
help me either, say, distinguish this from MCFL

Benjamin Barr: I think it is a very close call and it is
remarkably similar to MCFL. Whats important here is, its
a commentary, and so the explicit call to action is the
last line. Call President Obama and put his antics to an
end, thats what Free Speech wants individuals to do. The
remainder is commentary and just public discussion so we
know after MCFL in the wake of Wisconsin Right to Life, in
the wake of Citizens United and other constitutional
developments that any type of close call isshould be
turned to the speaker, it should be turned in presumption
of individuals being able to speak.

Commissioner McGahn: Ive heard some suggest at one point
that those limiting rules articulated by the controlling
opinion in WRTL only applied to banning corporate speech
within 30 days and 60 days in a federal election.

Ive also heard since then well, were not entirely sure,
does that apply to disclosure? Maybe for bans, but its
just disclosure. Can you explain why those.

Benjamin Barr: The Supreme Courts long line of
jurisprudence in vagueness and overbreadth, both in the
areas of defamation, obscenity and campaign finance law,
are not to be viewed, you know, in the particular minutia
of those facts. A vague law, an over-broad law, infringes
all sorts of activities. So while its true at issue in
Citizens United and Wisconsin Right to Life, was the
electioneering communications ban of the BCRA, the same
constitutional principles apply to regulations that apply
here.

You know, the Supreme Court referred to the electioneering
communications as a two-prong, eleven-factor speech
balancing test. And if you examine 100.22(b), on its face
and in application, and the inconsistencies through this
Commission through enforcement procedures, and advisory
opinions, youre not looking much better than a two-prong
eleven-factor test. And I dont see how you escape

Exhibit K
Open Meeting of the Federal Election Commission
Dated April 12, 2012
Transcribed May 9, 2012

18
Commissioner McGahn: Actually, at least the 114.15 wrote
down all the factors.

Benjamin Barr: True, right

Commissioner McGahn: (b) doesnt define

Benjamin Barr: No, we dont. We have electoral nexus
standard, we have positive light standard, we have, you
know, all these shifting standards. Theres no clear line,
and so this matters fairly simple. Its 3 gentlemen from
Wyoming that want to be able to speak. They dont think the
federal government has a rightful place to intervene and
require it to register and report with the government to
criticize those in power.

And I think articulating from what weve learned in
Wisconsin Right to Life and Citizens United, that 100.22(b)
has no further constitutional validity. Thats here. So I
waswhen I received the Drafts, I was excited when I got
the first one because I thought, wow, were ready to rock-
and-roll and the Commission has adopted the wisdom of CU
and Wisconsin Right to Life but then an hour later I got a
sour taste and I got Draft B.

Commissioner McGahn: Its bad news for ya, I guess.

Benjamin Barr: Its unfortunate.

Commissioner McGahn: Should we, could we go back to those
financial reform ads?

Benjamin Barr: Of course we can.

Commissioner McGahn: Im not cutting you off if you want
to sort of make your case in your own words, Ill give you
an opportunity to do that in a second but, are we saying
that youve actually unearthed a tie? So the tie goes to
the speaker?

Benjamin Barr: I think it does present a very close, a
very close call and yes I do think that the operative rule
from CU and carrying forward into 100.22(b), is to presume
that theres more than one way to interpret this and that
where theres ambiguity and where theres uncertainty, that
Exhibit K
Open Meeting of the Federal Election Commission
Dated April 12, 2012
Transcribed May 9, 2012

19
regulatory agencies shouldnt decide the meaning or the
intent of the speaker, but to allow them to speak freely.

Commissioner McGahn: But Im not, Im not looking at
intent, Im looking at the language of the ad. It certainly
says call President Obama and put his antics to an end,
but it also says not any kind we would vote for and
neither should you. Thats also a direction to the viewer.
Im not looking at intent or effect, thats what it says.
And, are you saying that thats murky? As to who we vote
against?

Benjamin Barr: Youve got two statements. One statement
says not any kind we would vote for and neither should
you, and we have another statement call President Obama
and put his antics to an end. What is the true meaning of
the ad? Do you presume to know?

Commissioner McGahn: The true meaning though looks atthat
sounds like reasonable person, that sounds like effect.
Right? Not to sort of turn it back on you, but if you look
at the next text of ads

Benjamin Barr: No, my point is you have two contradictory
statements.

Commissioner McGahn: Well, theyre not contrary, they make
two different points.

Benjamin Barr: Right. Which one captures the overall
meaning of the ad?

Commissioner McGahn: Or which one makes it an independent
expenditure?

Benjamin Barr: Yep, I dont know.

Commissioner McGahn: Right. Right. I mean, this is not the
hypothetical from CU, posited by the Chief Justice with a
500-page book and then one line at the end, and therefore
the book says vote for theand therefore you can ban the
book. Because, were not banning this ad, anymore. But, you
know it, you know Iwe prepared the Draft saying it wasnt
express advocacy because I think its important to put
things out there and let it be discussed and deliberated in
Exhibit K
Open Meeting of the Federal Election Commission
Dated April 12, 2012
Transcribed May 9, 2012

20
public, because thats the only way you knowyou know, the
analysis in Draft A I think works, sort of. But, I can see
another analysis of this ad that is equally compelling to
say its MCFL express advocacy and I dont think thats
necessarily a coin flip or reasonable person, ora question
of law. And at some point, MCFL-type express advocacy is
still express advocacy.

Benjamin Barr: No, absolutely. If the Commission finds
this is a MCFL express advocacy that, you know, thats
within its determination, this is two sets of ads, I dont
think the spending on that would be enough to trigger the
political committee registration requirements.

Commissioner McGahn: Okay.

Benjamin Barr: Its fairly de minimis in comparison to the
rest of its activity.

Commissioner McGahn: Thats all I have, thank you.

Chairman Hunter: Any other questions? Madam Vice Chair?

Vice Chair Weintraub: Thank you Madam Chair, just a couple
of points. One is I was struck when I was reading through
the 53-pages that you guys wrote, 53-pages and never said
tie goes to the speaker. So thank you for not disappointing
me, I just couldnt imagine you going through this analysis
without saying that at least once.

Commissioner McGahn: Could I actually explain why?

Vice Chair Weintraub: I dont actually care (laughing).

Commissioner McGahn: No, you wouldnt, but others may.
Because the Commission has never adopted those limiting
principles as a part of (b). (b) does not on its face or in
an E and J, have any of that language. That is a limitation
on the appeal-to-vote test in the Supreme Court, but the
Commission has never said those principles apply to (b). In
fact, I think theyve been uttered more in the breach, it
seems to me tie goes to--as someone once said--the friendly
regulator, not the speaker, you know, looking at context.
Minimal, if any, discovery, inquiry, that sort of thing.
Political committee MURS, usually--in the past certainly--
Exhibit K
Open Meeting of the Federal Election Commission
Dated April 12, 2012
Transcribed May 9, 2012

21
have had massive amounts of discovery, so its not included
because I see (b), I read (b), I read (b), I dont see that
in (b). Now maybe as a constitutional matter, that gets put
in there, but the goal of Draft A wasnt to talk about
those terms, it was to talk in terms of the Act and the reg
which is what we do here in AOs, so thats why theyre not
there.

If you want to put them in Im more than willing to vote
and amend (b). We can put (b) out for comment and then add
them. Were more than happy to make that a limiting
principle on whats an expenditure.

Vice Chair Weintraub: Im sorry, are you offering to amend
my Draft now?

Commissioner McGahn: No, not B. 100.22(b).

Vice Chair Weintraub: Oh, 100.22(b).

Commissioner McGahn: Yes, 100.22(b) generally we can put
that out

Vice Chair Weintraub: You actually want to amend 100.22(b)
as opposed to repeal 100.22(b)?

Commissioner McGahn: Sure.

Vice Chair Weintraub: Im trying to get my mind around
that.

I just want to say a couple of things about the question
and the answer because Im a little concerned that things
are gonna be taken out of context. Mr. Barrs come in with
a specific set of questions, weve taken you at your word
that these are your intent to do these things, and that is
what we based our analysis on and we have answered every
question that youve asked. Theres no obligation actually
that as I sit at this table I have to answer every question
that my colleague asks, so you know, I dont want people to
say, oh, you know, they couldnt answer the question. No,
I just sometimes get tired of it.

Weve answered the question that was posed to us by the
person whos entitled to ask the question. In the course of
Exhibit K
Open Meeting of the Federal Election Commission
Dated April 12, 2012
Transcribed May 9, 2012

22
answering that question we have described certain facts,
weve described the ads that were put in front of us, that
doesnt mean that every description of the ad its
predominately about this, becomes a new test, a new
factor, its just a description. We have to describe what we
are talking about.

And I also wanted to note that Draft A suggests that we
would be subjecting the political committee to contribution
limits, and theres certainly no suggestion of that in
Draft B. Youve said that youre only going to be doing
independent spending and we assume that to be true and
therefore, you wouldnt be governed by any--we didnt feel
the need to say this specifically, but I dont want this to
be misconstrued in any waythat I think were just talking
about political committee status and disclosure. Were not
talking about contribution limits because thats not,
thats not at issue here at all. So, in case there was any
confusion about that I wanted to put that to rest.

(silence)

Chairman Hunter: Any other questions or comments?

(silence)

Chairman Hunter: Okay, thank you very much for coming in
Mr. Barr, we will likely have another Draft that, that
well make blue in the near future and we appreciate you
coming in. Have a safe flight.

Benjamin Barr: Thank you.

Chairman Hunter: Mr. Palmer, are there any management,
administrative matters to discuss?

Mr. Palmer: Madam Chair there are none.

Chairman Hunter: Hearing none, this meeting is adjourned
and one last time happy birthday to Mr. Dealy.

Unidentified Male Speaker: Thank you.

(end of audio)
Exhibit K
Exhibit L
Open Meeting of the Federal Election Commission
Dated April 26, 2012
Transcribed May 6, 2012

1


This is a recording of the open meeting of the Federal
Election Commission held on April 26, 2012. Should you have
questions after listening to the recording, please call the
FEC at 1-800-424-9530, or email us at info@fec.gov.

(Start Audio)
(Overlap of background voices)

Chairman Hunter: The next matter on the agenda is Draft
Advisory Opinion 2012-11 Free Speech. We have with us this
morning Mr. Ben Barr and Mr. Stephen Klein.

Okay, were gonna get going and we may be able to have
Commissioner Walther join us, but, here we go. Back again
to Draft Advisory Opinion 2012-11 Free Speech, and Mr
Stipanovic do you have a presentation for us this morning?

Neven Stipanovic: Yes I do. Thank you Chair Hunter and
good morning Commissioners.

At the open meeting held on April 12 the Commission
considered Agenda Documents 12-24 and 12-24-A in response
for request for advisory opinion filed on behalf of Free
Speech. Consideration of these agenda documents has been
held over from that open meeting to todays open meeting.

Agenda Document No. 12-24 concludes that non of the ads
would be express advocacy, non of the proposed donation
requests would solicit contributions, and Free Speechs
proposed activities would not require it to register and
report as a political committee.

Agenda Document No. 12-24-A concludes that seven of the
eleven proposed ads would be express advocacy, two of the
four proposed donation requests would be solicitations of
contributions, and Free Speechs proposed activities would
require it to register and report with the Commission as a
political committee.

Since the April 12
th
open meeting, the Commission has
released another draft advisory opinion designated as Draft
C, and presented before you as Agenda Document 12-24-B,
Draft C concludes that one of the Free Speechs proposed
Exhibit L
Open Meeting of the Federal Election Commission
Dated April 26, 2012
Transcribed May 6, 2012

2
ads would expressly advocate the election or defeat of a
clearly identified federal candidate. None of the proposed
donation requests would solicit contributions and Free
Speechs proposed activities would not require it to
register and report as a political committee.

The Commission has not received any comments since the last
open meeting, and I would be happy to answer any questions.

Chairman Hunter: Thank you very much. Thanks for joining
us again Mr. Barr, and welcome Mr. Klein.

Stephen Klein: Thank you.

Chairman Hunter: Does anybody have any questions or
comments?

(silence)

Chairman Hunter: Madam Vice Chair?

Vice Chair Weintraub: Thank you Madam Chair. I thought
about saying some of this when we were, when I was making
the motion on theon late submitted documents, but I
decided not to say this with the kids in the room.

Chairman Hunter: That was nice.

Vice Chair Weintraub: Yeah, I, because, I mean its not
that unusual for Commissioners to submit late-submitted
documents, including really-late-submitted documents. But
that usually means that Commissioners are all working
together to come up with something that we could vote for
at the table. Ive never seen a 56-page draft with
substantial revisions from the earlier draft that wasnt
even shared with colleagues until 10:30 the night before
the meeting, and I have to tell you I turned off my
Blackberry at that point, so I didnt see it until this
morning. I still havent read the whole thing. I just
didnt have time. I assume that this document was not
written to inform deliberations at the table today because
it wasnt given to us in time for us to really read it. And
I assume it wasnt provided so that the requestor could
comment on it, because he didnt get it until even later
Exhibit L
Open Meeting of the Federal Election Commission
Dated April 26, 2012
Transcribed May 6, 2012

3
than I did. So Im not sure who your audience is for this,
but its clearly not me.

Im not going to attempt to engage on it, because as I
said, I havent had time to read it. I do think that there
are a couple of some meta issues about this request, one of
which we can address and one of which we really cant.

I think implicit in your request, and I dont think youre
going to disagree with what Imwhat Im about to say is,
the notion that in a world where billionaires can make
multi-million dollar contributions to super-PACs, does it
make sense to ask three ranchers who want to spend a few
thousand dollars on a few ads, does it make sense to ask
them to register as a political committee and go through
all the hoops that that entails? And I think thats a
veryI think that question is implicit in your request. I
think its an interesting question, plainly not one we can
answer, its a question for Congress as to whether the
thresholds are set at the right levels. But, I do think
its implicit in your request and as I said, I think its
an interesting and intriguing question and, its one thats
worth other folks talking about.

I think the question that is, in your request that is, that
we can answer and we attempt to answer andby the way, I
was prepared to answer two weeks ago. You know I think
three of us were ready to vote two weeks ago and I am sorry
that we were not able to do that, that was not fromthe
delay was not on our side. The other question that I think
isis sort of the meta question that is raised by your
request is, whether an ad that is an attack on a character
qualifications and fitness for office of a clearly
identified candidate can then segue into a call to action
that is in some instances a complete non sequitur whether
that will save it and thereby make it not express advocacy,
and I dont think the answer to that is, is yes.

Interestingly enough, I, as I said, I didnt thoroughly
read my colleagues draft, but I did note that their
analysis of the financial reform ad, which I do appreciate
that your position changed on that, and I think thats the
rightI think you came to the right conclusion there. In my
colleagues analysis it says the addition of the statement
Exhibit L
Open Meeting of the Federal Election Commission
Dated April 26, 2012
Transcribed May 6, 2012

4
Call President Obama and put his antics to an end, does
not negate the fact that the ad contains express advocacy.

They of course go on to say under Section 100.22(a), now I
agree with the first part of that, the addition of a
statement at the end of the ad does not negate the express
advocacy that was previously expressed in the ad. If
expressed advocacy can be expressed, that is a little bit
redundant.

Really, our big disagreement here again, speaking at the
meta-level(?) is whether were going to apply 100.22(b), or
not. And, you know, we say yes. We say no. Okay, thats,
you know, really, thats the whole ball of wax right there.
And thats really all I have to say. Im going to continue
to support the draft that I was ready to support two weeks
ago.

Chairman Hunter: Thank you. Any other questions or
comments?

(Silence, audio stops and starts)

(Inaudible voice in the background)

Chairman Hunter: Commissioner McGahn?

Commissioner McGahn: Just one question for the, actually
two questions for the requestor. One, Im going to give you
an opportunity to, not that you have to, but comment on any
of the drafts one final time, and then any thoughts you
have on anything thats been said at the table.

Nothing specific in those questions. General questionsIm
curious to get your thoughts and give you an opportunity to
weigh in.

Benjamin Barr: So Ive just worked my way through Draft C,
during the earlier proceedings, and it seems to be an
expansion of what we saw, excuse me if I am using the
denominations (inaudible), I think its B, before, and I
take no issue with the analysis. I believe the financial
reform ad, that theres a similarity to MCFL. What works
and whats helpful in Draft C is the clear articulation of
legal standards that the FEC is applying in its
Exhibit L
Open Meeting of the Federal Election Commission
Dated April 26, 2012
Transcribed May 6, 2012

5
interpretation and prospective enforcement of 100.22(b).
Thats what were looking for so that the organization and
the individual speakers will be able to go out and be in
compliance with the law. So it is helpful on that front,
and it enables us to be able to exercise our First
Amendment rights, and in compliance with the Act.

As to comments about the meta-discussions and philosophical
considerations, I dont have anything to apply on those
points.

(Silence, audio stops and starts)

Chairman Hunter: Any other questions, comments? Okay.

Commissioner Petersen: I guess each of us can make motions
on our drafts. Just to comment on something that the Vice
Chair mentioned, I mean that this is, this was later than
we intended. I think that we would have liked to have
gotten this out earlier, it was our intention to, its a
fairly lengthy and involved analysis, and it wasnt a
result of trying to sandbag or drop something late. It was
just that it just took a lot of time, and I dont think
there was any mystery from after last meetingthere is some
over-lap, but I think that we were on fairly different,
fairly different plains on where we thought, how this
question was going to be answered and so we viewed this
more as clarifying our thoughts on this, not withwe never
expected or hoped that we were going to get others in light
of previous votes that weve taken and previous comments
that weve made, but to the extent that we can get drafts
out earlier, thats certainly our intention. I just wanted
to raise that.

Without any further ado, I move approval of Draft C of
advisory opinionof draft advisory opinion 2012-11 as set
forth in Agenda Document No. 12-24-B.

Chairman Hunter: Thank you. Any comments on the motion?

(silence)

Chairman Hunter: All those in favor signify by saying I

(response)
Exhibit L
Open Meeting of the Federal Election Commission
Dated April 26, 2012
Transcribed May 6, 2012

6

Chairman Hunter: Opposed.

(response)

Chairman Hunter: The motion fails three to two.

Any other motionsMadam Vice Chair?

Vice Chair Weintraub: Thank you Madam Chair. I move
approval of Draft B as set forth in agenda document No. 12-
24A.

Chairman Hunter: All those in favor.

(response)

Chairman Hunter: All those opposed.

(response)

Chairman Hunter: The motion fails two to three.

Thank you very much. I believe that it will be useful for
the Office of General Counsel to compile a draft of
advisory opinion that answers, I believe its just one
question that were able to answer putting the two drafts
together. Is it two? Its a couple, sorry. One in one
section and then a couple in the other. (inaudible voices)
right.

Commissioner McGahn: There are some ads that everyone
agrees are not express advocacy.

Chairman Hunter: Thats true, sorry.

Commissioner McGahn: The one that is, some that arent
(inaudible)right.

Chairman Hunter: Okay, and well circulate that sort of
consensus draft ofon tally vote as soon as possible. Thank
you.

Benjamin Barr: Thank You.

Exhibit L
Open Meeting of the Federal Election Commission
Dated April 26, 2012
Transcribed May 6, 2012

7
Stephen Klein: Thank You.

(end of audio)
Exhibit L
Exhibit M

Free Speech Ads Budget Estimates
Revised Budget for Free Speech advertising: $2,000
Fundraising Goal: $10,000
Radio Ads
Budget: $1,000 (Production: $100 Air Time: $900)
Cost per 30-second ad (KGAB radio): $15 (during Rush Limbaugh Show)
Campaign: June 25 November 3, 2012
Total: 60 Advertisements (2-3 per week for duration)
Newsprint Ads
Budget: $500
Cost per full-page, single-color ad (per day, Wyoming Tribune Eagle): $250
Campaign: Saturday, June 23 and Sunday, July 22, 2012
Total: Two advertisements
Facebook Ads
Budget: $700
CPM (Cost Per 1,000 impressions): $.40

Campaign: July 6 August 1, 2012
Total: 140,000 impressions on Facebook within Wyoming network
Campaign: October 1 November 2, 2012
Total: 140,000 impressions on Facebook within Wyoming network