## Facts

- The Real Truth About Abortion, Inc. (RTA), a Virginia nonprofit organized under I.R.C. § 527, planned to produce and distribute communications criticizing then-Senator Barack Obama’s positions on abortion during the 2008 election cycle.
- RTA asserted it intended to engage in issue advocacy and not expressly advocate the election or defeat of any candidate.
- RTA claimed its planned speech was chilled because it could be regulated under the FEC’s definition of “express advocacy” in 11 C.F.R. § 100.22(b), potentially triggering FECA reporting and disclosure obligations.
- RTA also claimed uncertainty about whether it could be classified as a “political committee” based on the FEC’s case-by-case application of the “major purpose” test, which would impose PAC registration, organizational, and reporting requirements.
- RTA filed suit against the FEC and DOJ challenging both the express-advocacy regulation and the major-purpose PAC-status policy on constitutional, statutory, and APA grounds.
- The district court granted summary judgment for the government; RTA appealed.

## Issues

1. Whether 11 C.F.R. § 100.22(b)’s definition of “expressly advocating” is unconstitutional (vague or overbroad), exceeds FECA authority, or is unlawful under the APA, facially or as applied.
2. Whether the FEC’s case-by-case “major purpose” methodology for determining political-committee (PAC) status is unconstitutional (vague or overbroad), exceeds FECA authority, or is unlawful under the APA, facially or as applied.
3. What level of First Amendment scrutiny applies to the challenged disclosure and PAC-status requirements.

## Decision

- The Fourth Circuit affirmed summary judgment for the FEC and DOJ.
- The court applied exacting scrutiny because the challenged provisions primarily imposed disclosure and organizational obligations rather than direct prohibitions on speech.
- The court held that 11 C.F.R. § 100.22(b) is a valid and constitutional interpretation of “express advocacy” and is not impermissibly vague or overbroad.
- The court held that the FEC’s case-by-case major-purpose approach to PAC status is constitutionally permissible, consistent with FECA as construed in Supreme Court precedent, and not arbitrary or capricious under the APA.
- The court rejected RTA’s as-applied challenges as insufficiently supported by a concrete showing that RTA would be unlawfully subjected to regulation.

## Legal Principles

- Disclosure and related campaign-finance requirements are evaluated under exacting scrutiny, requiring a substantial relation between the regulation and a sufficiently important governmental interest.
- “Express advocacy” under FECA may reach communications that are the functional equivalent of express advocacy; it is not limited to “magic words.”
- A definition of express advocacy using an objective reasonable-person standard and limited to communications that can only be interpreted as electoral advocacy may satisfy vagueness and overbreadth constraints.
- Political-committee status is constitutionally limited to entities controlled by a candidate or whose major purpose is nominating or electing a candidate.
- The FEC may determine an organization’s major purpose through a contextual, case-by-case assessment of spending and public statements without adopting a rigid bright-line test.
- Government interests supporting disclosure and PAC-status requirements include informing the electorate, deterring corruption and its appearance, and enabling effective enforcement of election laws.

## Conclusion

The Fourth Circuit upheld the FEC’s express-advocacy regulation and its case-by-case major-purpose test for PAC status, concluding that the disclosure-focused requirements satisfied exacting scrutiny, were not unconstitutionally vague or overbroad, and were consistent with FECA and the APA.


The Real Truth About Abortion, Inc. v. FEC, 681 F.3d 544 (4th Cir. 2012)