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No. 07-953

In the Supreme Court of the United States








Solicitor General


Counsel of Record General Counsel



Deputy Solicitor General Associate General Counsel



Assistant to the Solicitor Assistant General Counsel General Department of Justice


Washington, D.C. 20530-0001 Attorney (202) 514-2217 Federal Election Commission Washington, D.C. 20463


Whether the three-judge district court abused its discretion in denying appellant’s motion for a preliminary injunction against the enforcement of reporting and disclaimer requirements governing appellant’s planned advertisements.



Page Opinions below........................................ 1 Jurisdiction........................................... 1 Statement............................................ 1 Argument........................................... 11 Conclusion.......................................... 23



Brown v. Socialist Workers ’ 74 Campaign Comm., 459 U.S. 87 (1982)............................. 7, 13 Buckley v. American Constitutional Law Found., Inc., 525 U.S. 182 (1999)......................... 18 Buckley v. Valeo, 424 U.S. 1 (1976).............. passim Central Hudson Gas & Elec. Corp. v. Pub. Serv.

Comm’n, 447 U.S. 557 (1980)..................... 19 Citizens Against Rent Control v. City of Berkeley, 454 U.S. 290 (1981).............................. 18 Doran v. Salem Inn, Inc., 422 U.S. 922 (1975)......... 11 FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. 238 (1986)..................

–  –  –


The opinion of the three-judge district court denying appellant’s motion for a preliminary injunction ( J.S.

App. 2a-20a) is not yet reported.


The decision of the three-judge district court was issued on January 15, 2008. A notice of appeal was filed on January 16, 2008 (J.S. App. 20a-21a), and the jurisdictional statement was filed on January 22, 2008. The jurisdiction of this Court is invoked under 28 U.S.C.



In the district court, appellant argued, inter alia, that the reporting and disclaimer requirements imposed by Sections 201 and 311 of the Bipartisan Campaign Reform Act of 2002 (BCRA), Pub. L. No. 107-155, 116 Stat.

(1) 88, 105 (2 U.S.C. 434(f )(2) (Supp. V 2005); 2 U.S.C.

441d(a) (2000 & Supp. V 2005)), are unconstitutional as applied to three of appellant’s planned broadcast advertisements. The district court denied appellant’s motion for a preliminary injunction against enforcement of those requirements pending the court’s resolution of the case on the merits. J.S. App. 2a-20a. Appellant now seeks this Court’s review of that denial of preliminary injunctive relief and has moved for expedited briefing and argument this spring.1 The question whether this Court has jurisdiction over the instant appeal is not free from doubt. Under BCRA § 403(a)(1) and (3), 116 Stat. 114, suits challenging the constitutionality of any BCRA provision may be heard by a three-judge district court within the District of Columbia, and the three-judge court’s “final decision” is reviewable by direct appeal to this Court. For suits filed on or before December 31, 2006, that three-judge court procedure was the exclusive mechanism for pursuing a constitutional challenge to BCRA. See BCRA § 403(d)(1), 116 Stat. 114; cf. Wisconsin Right to Life, Inc. v. FEC, No. 04-5292, 2004 WL 1946452 (D.C. Cir. Sept. 1, 2004). BCRA § 403(d)(2), 116 Stat.

114, states, however, that “[w]ith respect to any action initially filed after December 31, 2006, the provisions of subsection (a) shall not apply to any action described in such section unless the person filing such action elects such provisions to apply to the action.” Appellant elected to have its suit heard by a three-judge district court. See J.S. App. 7a n.8.

Under 28 U.S.C. 1292(a)(1), the courts of appeals have jurisdiction to review “[i]nterlocutory orders of the district courts” granting or denying preliminary injunctive relief, “except where a direct review may be had in the Supreme Court.” This Court has jurisdiction to review the denial of a preliminary injunction “in any civil action, suit or proceeding required by any Act of Congress to be heard and determined by a district court of three judges.” 28 U.S.C. 1253 (emphasis added). This case was not “required” to be decided by a three-judge court insofar as appellant could have presented its constitutional claims to a single-judge court. On the other hand, under BCRA § 403(d)(2), appellant was entitled to a three-judge district court as of right, and once appellant elected that option, BCRA “required” that a three-judge

1. The Federal Election Commission (Commission or FEC) is vested with statutory authority over the administration, interpretation, and civil enforcement of the Federal Election Campaign Act of 1971 (FECA), 2 U.S.C. 431 et seq., and other federal campaign-finance statutes. The Commission is empowered to “formulate policy” with respect to the FECA, 2 U.S.C. 437c(b)(1);

“to make, amend, and repeal such rules * * * as are necessary to carry out the provisions of [the] Act,” 2 U.S.C. 437d(a)(8), 438(d); 2 U.S.C. 438(a)(8) (Supp. V 2005); and to issue written advisory opinions concerning the application of the Act and Commission regulations to any specific proposed transaction or activity, 2 U.S.C.

437d(a)(7), 437f.

2. Since 1910, federal law has required disclosure of information related to the financing of federal election campaigns. See Buckley v. Valeo, 424 U.S. 1, 61 (1976) (per curiam). After Congress enacted a new disclosure regime in 1974, see id. at 62-64, this Court held that the new provisions were constitutional on their face, id. at 64-84. The Court explained that disclosure serves the important government interests of (1) providing the electorate with information on campaign financing “in order to aid the voters in evaluating those who seek federal office,” id. at 66-67; (2) “deter[ring] actual corruption and avoid[ing] the appearance of corruption by exposing large contributions and expenditures to the light court be convened to decide the case. That may be sufficient to trigger the application of Section 1253. If this Court were to determine that it lacks jurisdiction over the instant interlocutory appeal, the district court’s “final decision” in the case would still be reviewable by this Court pursuant to BCRA § 403(a)(3), 116 Stat. 114, and the grant or denial of preliminary injunctions by three-judge district courts in cases in which the plaintiff elects a three-judge panel would be reviewable in the court of appeals (and in this Court via a petition for certiorari).

of publicity,” id. at 67; and (3) “gathering the data necessary to detect violations of the contribution limitations” that were simultaneously enacted, id. at 68.

The disclosure requirements at issue in Buckley pertained to “the use of money or other objects of value ‘for the purpose of... influencing’ ” nominations or elections to federal office. 424 U.S. at 77 (quoting 2 U.S.C.

431(f) (Supp. IV 1974)). In order to avoid “serious problems of vagueness,” the Court held that, as applied to organizations whose major purpose was not campaign activity, the disclosure provisions would “reach only funds used for communications that expressly advocate the election or defeat of a clearly identified candidate,” i.e., “spending that is unambiguously related to the campaign of a particular federal candidate.” Id. at 76, 79-80 (footnote omitted). Consistent with earlier decisions regarding compelled disclosure, the Court held that the challenged provisions, so construed, would unconstitutionally infringe on associational rights only in the limited circumstance when such disclosure would result in a “reasonable probability” of “threats, harassment, or reprisals” against an organization or its members. Id. at 68, 74.

3. Based on its assessment of evolving federal campaign practices and abuses during the years following Buckley, Congress subsequently determined, inter alia, that entities had been funding broadcast advertisements designed to influence federal elections “while concealing their identities from the public,” including by “hiding behind dubious and misleading names.” McConnell v.

FEC, 540 U.S. 93, 196-197 (2003) (quoting McConnell v.

FEC, 251 F. Supp. 2d 176, 237 (D.D.C.) (per curiam)).

Through BCRA, Congress amended FECA to require disclosure about the sources of funding for “electioneering communication[s].” The term “electioneering communication” is defined in pertinent part as a “broadcast, cable, or satellite communication” that (1) refers to a clearly identified candidate for federal office; and (2) is made within 60 days before a general election, or within 30 days before a primary election for the office sought by the candidate. 2 U.S.C. 434(f )(3)(A)(i) (Supp. V 2005).

The disclosure provisions at issue in this case include both reporting requirements, 2 U.S.C. 434(f )(2) (Supp.

V 2005); 11 C.F.R. 104.20, and disclaimer requirements, 2 U.S.C. 441d (Supp. V 2005); 11 C.F.R. 110.11. 2 The reporting provisions state that any “person” (defined to include any corporation, labor organization, or other group, 2 U.S.C. 431(11)) expending more than $10,000 to produce or air an electioneering communication must file a statement with the Commission. 2 U.S.C. 434(f )(1) (Supp. V 2005). The statement must identify the person making the disbursement, the amount and date of the disbursement, and, in the case of an electioneering communication made by a corporation, “the name and address of each person who made a donation aggregating $1,000 or more to the corporation * * * for the purpose of furthering electioneering communications.” 11 C.F.R.

104.20(c); 72 Fed. Reg. 72,913 (2007) (to be codified at 11 The FEC recently amended its electioneering communication reporting regulations to conform to this Court’s decision in FEC v.

Wisconsin Right to Life, Inc., 127 S. Ct. 2652 (2007), and to address the reporting requirements for corporations and labor organizations. See Electioneering Communications, 72 Fed. Reg. 72,899, 72,913-72,915 (2007) (to be codified at 11 C.F.R. 104.20, 114.15 (2008)). Appellant’s planned advertisements would be subject to the revised provisions that will be contained in 11 C.F.R. 104.20(c)(7)(ii) and (9) (2008). See 72 Fed.

Reg. at 72,899 (providing that revised regulations became effective on publication date).

C.F.R. 104.20(c)(9) (2008)). If the disbursement is made out of a “segregated bank account established to pay for electioneering communications,” the corporation making the electioneering communication need only identify those individuals who contributed $1000 or more to that segregated account. 2 U.S.C. 434(f )(2)(E) (Supp. V 2005); 72 Fed. Reg. at 72,913 (to be codified at 11 C.F.R.

104.20(c)(7) (2008)).

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