Speechnow.org v. Federal Election Commission

 United States Court of Appeals
        FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued January 27, 2010              Decided March 26, 2010

                       No. 08-5223

                 SPEECHNOW.ORG, ET AL.,
                      APPELLANTS

                             v.

             FEDERAL ELECTION COMMISSION,
                       APPELLEE



        Appeal from the United States District Court
                for the District of Columbia
                  (No. 1:08-cv-00248-JR)



                       No. 09-5342

                 DAVID KEATING, ET AL.,
                     APPELLANTS

                             v.

             FEDERAL ELECTION COMMISSION,
                       APPELLEE
                                2

         Appeal from the United States District Court
                 for the District of Columbia
                   (No. 1:08-cv-00248-JR)



    Steven M. Simpson argued the cause for appellants. With
him on the brief were William H. Mellor, Robert W. Gall,
Robert P. Frommer, Paul M. Sherman, and Stephen M.
Hoersting.

    Heidi K. Abegg and Alan P. Dye were on the briefs for
amici curiae Alliance for Justice, et al. in support of appellants.

     David B. Kolker, Associate General Counsel, Federal
Election Commission, argued the cause for appellee. With him
on the briefs was Vivien Clair, Attorney.

    Joseph G. Hebert, Donald J. Simon, Scott L. Nelson, Fred
Wertheimer were on the briefs for amici curiae Campaign Legal
Center and Democracy 21.

    Howard R. Rubin was on the briefs for amici curiae The
Brennan Center for Justice and Professor Richard Briffault in
support of appellee.

   Before: SENTELLE, Chief Judge, GINSBURG, HENDERSON,
ROGERS, TATEL, GARLAND, BROWN, GRIFFITH, and
KAVANAUGH, Circuit Judges.

    Opinion for the Court filed by Chief Judge SENTELLE.

    SENTELLE, Chief Judge: David Keating is president of an
unincorporated nonprofit association, SpeechNow.org
                                  3

(SpeechNow), that intends to engage in express advocacy1
supporting candidates for federal office who share his views on
First Amendment rights of free speech and freedom to assemble.
In January 2008, the Federal Election Committee (FEC) issued
a draft advisory opinion concluding that under the Federal
Election Campaign Act (FECA), SpeechNow would be required
to organize as a “political committee” as defined by 2 U.S.C.
§ 431(4) and would be subject to all the requirements and
restrictions concomitant with that designation. Keating and four
other individuals availed themselves of 2 U.S.C. § 437h, under
which an individual may seek declaratory judgment to construe
the constitutionality of any provision of FECA. As required by
that provision, the district court certified the constitutional
questions directly to this court for en banc determination.
Thereafter, the Supreme Court decided Citizens United v. FEC,
130 S. Ct. 876 (2010), which resolves this appeal. In accordance
with that decision, we hold that the contribution limits of 2
U.S.C. § 441a(a)(1)(C) and 441a(a)(3) are unconstitutional as
applied to individuals’ contributions to SpeechNow. However,
we also hold that the reporting requirements of 2 U.S.C. §§ 432,
433, and 434(a) and the organizational requirements of 2 U.S.C.
§ 431(4) and 431(8) can constitutionally be applied to
SpeechNow. In this action the district court also denied the
plaintiffs’ motion to enjoin FEC enforcement of FECA’s
contribution limits against SpeechNow. Because we hold that
those provisions cannot be constitutionally applied, we vacate


1
 “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.’” Buckley v. Valeo, 424 U.S. 1, 44 n.52 (1976).
                              4

the order denying that injunction and remand the matter to the
district court for further proceedings consistent with our
decision.

                       I. Background

        SpeechNow is an unincorporated nonprofit association
registered as a “political organization” under § 527 of the
Internal Revenue Code. Its purpose is to promote the First
Amendment rights of free speech and freedom to assemble by
expressly advocating for federal candidates whom it views as
supporting those rights and against those whom it sees as
insufficiently committed to those rights. It intends to acquire
funds solely through donations by individuals. SpeechNow
further intends to operate exclusively through “independent
expenditures.” FECA defines “independent expenditures” as
expenditures “expressly advocating the election or defeat of a
clearly identified candidate” that are “not made in concert or
cooperation with or at the request or suggestion of such
candidate, the candidate’s authorized political committee, or
their agents, or a political party committee or its agents.” 2
U.S.C. § 431(17). SpeechNow has five members, two of whom
are plaintiffs in this case: David Keating, who is also
SpeechNow’s president and treasurer, and Edward Crane.
Keating makes the operational decisions for SpeechNow,
including in which election campaigns to run advertisements,
which candidates to support or oppose, and all administrative
decisions.

       Though it has not yet begun operations, SpeechNow has
made plans both for fundraising and for making independent
expenditures. All five of the individual plaintiffs – Keating,
Crane, Fred Young, Brad Russo, and Scott Burkhardt – are
prepared to donate to SpeechNow. Keating proposes to donate
$5500. Crane proposes to donate $6000. Young, who is
                                5

otherwise unaffiliated with SpeechNow, proposes to donate
$110,000. Russo and Burkhardt want to make donations of
$100 each. In addition, as of August 2008, seventy-five other
individuals had indicated on SpeechNow’s website that they
were interested in making donations. As for expenditures,
SpeechNow planned ads for the 2008 election cycle against two
incumbent candidates for federal office who, in the opinion of
SpeechNow, did not sufficiently support First Amendment
rights. These ads would have cost around $12,000 to produce.
Keating intended to place the ads so that the target audience
would view the ads at least ten times, which would have cost
around $400,000. As SpeechNow never accepted any donations,
it never produced or ran these ads. However, SpeechNow
intends to run similar ads for the 2010 election cycle if it is not
subject to the contribution limits of § 441a(a) at issue in this
case.

        On November 19, 2007, SpeechNow filed with the FEC
a request for an advisory opinion, asking whether it must
register as a political committee and if donations to SpeechNow
qualify as “contributions” limited by § 441a(a)(1)(C) and
441a(a)(3). At the time, the FEC did not have enough
commissioners to issue an opinion, but it did issue a draft
advisory opinion stating that SpeechNow would be a political
committee and contributions to it would be subject to the
political committee contribution limits.          Believing that
subjecting SpeechNow to all the restrictions imposed on
political committees would be unconstitutional, SpeechNow and
the five individual plaintiffs filed a complaint in the district
court requesting declaratory relief against the FEC under 2
U.S.C. § 437h. Because § 437h allows only the FEC, political
parties, or individuals the right to bring such actions, this court
removed SpeechNow from the § 437h proceedings. SpeechNow
remains in the caption for this case because it, along with the
individual plaintiffs, also sought a preliminary injunction
                                6

prohibiting the FEC from enforcing the political committee
contribution limits with respect to contributions to SpeechNow,
and the denial of that injunction is also on appeal before this
court. Because this court was already scheduled to hear the
constitutional issues en banc, we consolidated the appeal with
the en banc proceeding.

        Section 437h provides that a “district court immediately
shall certify all questions of constitutionality of this Act [FECA]
to the United States court of appeals for the circuit involved,
which shall hear the matter sitting en banc.” The district court
made findings of fact, and certified to this court five questions:

        1. Whether the contribution limits contained in 2 U.S.C.
        §§ 441a(a)(1)(C) and 441a(a)(3) violate the First
        Amendment by preventing David Keating,
        SpeechNow.org’s president and treasurer, from
        accepting contributions to SpeechNow.org in excess of
        the limits contained in §§ 441a(a)(1)(C) and 441a(a)(3).

        2. Whether the contribution limit mandated by 2 U.S.C.
        § 441a(a)(1)(C) violates the First Amendment by
        preventing the individual plaintiffs from making
        contributions to SpeechNow.org in excess of $5000 per
        calendar year.

        3. Whether the biennial aggregate contribution limit
        mandated by 2 U.S.C. § 441a(a)(3) violates the First
        Amendment by preventing Fred Young from making
        contributions to SpeechNow.org that would exceed his
        individual biennial aggregate limit.

        4. Whether the organizational, administrative, and
        continuous reporting requirements set forth in 2 U.S.C.
        §§ 432, 433, and 434(a) violate the First Amendment by
                                   7

        requiring David Keating, SpeechNow.org’s president
        and treasurer, to register SpeechNow.org as a political
        committee, to adopt the organizational structure of a
        political committee, and to comply with the continuous
        reporting requirements that apply to political
        committees.

        5. Whether 2 U.S.C. §§ 431(4) and 431(8) violate the
        First Amendment by requiring David Keating,
        SpeechNow.org’s president and treasurer, to register
        SpeechNow.org as a political committee and comply
        with the organizational and continuous reporting
        requirements for political committees before
        SpeechNow.org has made any expenditures or broadcast
        any advertisements.

SpeechNow.org v. FEC, No. 08-0248 (D.D.C. Sept. 28, 2009).

      Under FECA, a political committee is “any committee,
club, association, or other group of persons” that receives
contributions of more than $1000 in a year or makes
expenditures of more than $1000 in a year. 2 U.S.C. § 431(4).
Once a group is so designated, contributions to the committee
are restricted by 2 U.S.C. § 441a(a)(1)(C) and 441a(a)(3). The
first provision limits an individual’s contribution to a political
committee to $5000 per calendar year; the second limits an
individual’s total contributions to all political committees to
$69,900 biennially.2 See Price Index Increases for Contribution

2
 Subject to exceptions not here relevant, FECA defines
“contributions” as “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).
Again subject to exceptions, the Act defines “expenditure” as “any
purchase, payment, distribution, loan, advance, deposit, or gift of
money or anything of value, made by any person for the purpose of
                                   8

and Expenditure Limitations, 74 Fed. Reg. 7437 (Feb. 17, 2009)
(increasing § 441a(a)(3)(B)’s limit from $57,500 to $69,900).
A political committee also must comply with all applicable
recordkeeping and reporting requirements of 2 U.S.C. §§ 432,
433, and 434(a). Under those sections, if the FEC regulates
SpeechNow as a political committee, SpeechNow would be
required to, among other things: appoint a treasurer, § 432(a);
maintain a separately designated bank account, § 432(b), 432(h);
keep records for three years that include the name and address
of any person who makes a contribution in excess of $50,
§ 432(c)(1)-(2), 432(d); keep records for three years that include
the date, amount, and purpose of any disbursement and the name
and address of the recipient, § 432(c)(5), 432(d); register with
the FEC within ten days of becoming a political committee,
§ 433(a); file with the FEC quarterly or monthly reports during
the calendar year of a general election detailing cash on hand,
total contributions, the identification of each person who
contributes an annual aggregate amount of more than $200,
independent expenditures, donations to other political
committees, any other disbursements, and any outstanding debts
or obligations, § 434(a)(4), 434(b); file a pre-election report and
a post-election report detailing the same, id.; file semiannual or
monthly reports with the same information during years without
a general election, id.; and file a written statement in order to
terminate the committee, § 433(d).

                            II. Analysis

A. Contribution Limits (Certified Questions 1-3)

    The First Amendment mandates that “Congress shall make
no law . . . abridging the freedom of speech.” In Buckley v.

influencing any election for Federal office; and [ ] a written contract,
promise, or agreement to make an expenditure.” 2 U.S.C. §
431(9)(A)(i)-(ii).
                                9

Valeo, 424 U.S. 1 (1976), the Supreme Court held that, although
contribution limits do encroach upon First Amendment interests,
they do not encroach upon First Amendment interests to as great
a degree as expenditure limits. In Buckley, the Supreme Court
first delineated the differing treatments afforded contribution
and expenditure limits. In that case, the Court struck down
limits on an individual’s expenditures for political advocacy, but
upheld limits on contributions to political candidates and
campaigns. In making the distinction, the Court emphasized
that in “contrast with a limitation upon expenditures for political
expression, a limitation upon the amount that any one person or
group may contribute to a candidate or political committee
entails only a marginal restriction upon the contributor’s ability
to engage in free communication.” Id. at 20-21. However,
contribution limits still do implicate fundamental First
Amendment interests. Id. at 23.

     When the government attempts to regulate the financing of
political campaigns and express advocacy through contribution
limits, therefore, it must have a countervailing interest that
outweighs the limit’s burden on the exercise of First
Amendment rights. Thus a “contribution limit involving
significant interference with associational rights must be closely
drawn to serve a sufficiently important interest.” Davis v. FEC,
128 S. Ct. 2759, 2772 n.7 (2008) (quoting McConnell v. FEC,
540 U.S. 93, 136 (2003)) (internal quotation marks omitted).
The Supreme Court has recognized only one interest sufficiently
important to outweigh the First Amendment interests implicated
by contributions for political speech: preventing corruption or
the appearance of corruption. Id. at 2773; FEC v. Nat’l
Conservative Political Action Comm., 470 U.S. 480, 496-97
(1985) (“NCPAC”). The Court has rejected each of the few
other interests the government has, at one point or another,
suggested as a justification for contribution or expenditure
limits. Equalization of differing viewpoints is not a legitimate
                                  10

government objective. Davis, 128 S. Ct. at 2773. An
informational interest in “identifying the sources of support for
and opposition to” a political position or candidate is not enough
to justify the First Amendment burden. Citizens Against Rent
Control v. City of Berkeley, 454 U.S. 290, 298 (1981). And,
though this rationale would not affect an unincorporated
association such as SpeechNow, the Court has also refused to
find a sufficiently compelling governmental interest in
preventing “the corrosive and distorting effects of immense
aggregations of wealth that are accumulated with the help of the
corporate form.” Citizens United v. FEC, 130 S. Ct. 876, 902,
905 (2010) (quoting Austin v. Mich. Chamber of Commerce, 494
U.S. 652, 660 (1990), and rejecting Austin’s and subsequent
cases’ reliance on that interest).

     Given this precedent, the only interest we may evaluate to
determine whether the government can justify contribution
limits as applied to SpeechNow is the government’s anti-
corruption interest. Because of the Supreme Court’s recent
decision in Citizens United v. FEC, the analysis is
straightforward. There, the Court held that the government has
no anti-corruption interest in limiting independent expenditures.3

       Citizens United involved a nonprofit corporation that in
January 2008 produced a film that was highly critical of then-
Senator Hillary Clinton, a candidate in the Democratic Party’s
2008 Presidential primary elections. The film was, “in essence,
. . . a feature-length negative advertisement that urges viewers
to vote against Senator Clinton for President.” Citizens United,
130 S. Ct. at 890. As such, the film was subject to the
restrictions of 2 U.S.C. § 441b. That provision made it unlawful
for any corporation or union to use general treasury funds to

3
 Of course, the government still has an interest in preventing quid pro
quo corruption. However, after Citizens United, independent
expenditures do not implicate that interest.
                                11

make independent expenditures as defined by 2 U.S.C. §
431(17) or expenditures for speech defined as “electioneering
communications,” which are certain types of political ads aired
shortly before an election or primary, 2 U.S.C. § 434(f)(3). The
Supreme Court declared this expenditure ban unconstitutional,
holding that corporations may not be prohibited from spending
money for express political advocacy when those expenditures
are independent from candidates and uncoordinated with their
campaigns. 130 S. Ct. at 913.

     The independence of independent expenditures was a
central consideration in the Court’s decision. By definition,
independent expenditures are “not made in concert or
cooperation with or at the request or suggestion of such
candidate, the candidate’s authorized political committee, or
their agents, or a political party committee or its agents.” 2
U.S.C. § 431(17). As the Buckley Court explained when it
struck down a limit on independent expenditures, “[t]he absence
of prearrangement and coordination of an expenditure with the
candidate or his agent . . . alleviates the danger that expenditures
will be given as a quid pro quo for improper commitments from
the candidate.” Citizens United, 130 S. Ct. at 908 (quoting
Buckley, 424 U.S. at 47). However, the Buckley Court left open
the possibility that the future might bring data linking
independent expenditures to corruption or the appearance of
corruption. The Court merely concluded that independent
expenditures “do[] not presently appear to pose dangers of real
or apparent corruption comparable to those identified with large
campaign contributions.” 424 U.S. at 46.

      Over the next several decades, Congress and the Court gave
little further guidance respecting Buckley’s reasoning that a lack
of coordination diminishes the possibility of corruption. Just a
few months after Buckley, Congress codified a ban on
corporations’ independent expenditures at 2 U.S.C. § 441b. In
                               12

1978, in First National Bank of Boston v. Bellotti, 435 U.S. 765
(1978), the Court “struck down a state-law prohibition on
corporate independent expenditures related to referenda,” but
did not “address the constitutionality of the State’s ban on
corporate independent expenditures to support candidates.”
Citizens United, 130 S. Ct. at 902, 903. Though the Bellotti
Court sweepingly rejected “the proposition that speech that
otherwise would be within the protection of the First
Amendment loses that protection simply because its source is a
corporation,” 435 U.S. at 784, it limited the implications of that
rejection by opining in a footnote that “Congress might well be
able to demonstrate the existence of a danger of real or apparent
corruption in independent expenditures by corporations to
influence candidate elections,” 435 U.S. at 788 n.26. Then, in
Austin, the Court expressly upheld a Michigan law that
prohibited corporate independent expenditures. 494 U.S. at 654-
55. And in McConnell, the Court relied on Austin to uphold the
Bipartisan Campaign Reform Act of 2002’s (BCRA’s) extension
of § 441b’s ban on corporate expenditures to electioneering
communications. 540 U.S. at 203-09.

     The Citizens United Court reevaluated this line of cases and
found them to be incompatible with Buckley’s original
reasoning. The Court overruled Austin and the part of
McConnell that upheld BCRA’s amendments to § 441b. More
important for this case, the Court did so by expressly deciding
the question left open by the footnoted caveat in Bellotti. The
Court stated, “[W]e now conclude that independent
expenditures, including those made by corporations, do not give
rise to corruption or the appearance of corruption.” Citizens
United, 130 S. Ct. at 909.

    The Court came to this conclusion by looking to the
definition of corruption and the appearance of corruption. For
several decades after Buckley, the Court’s analysis of the
                               13

government’s anti-corruption interest revolved largely around
the “hallmark of corruption,” “financial quid pro quo: dollars for
political favors,” NCPAC, 470 U.S. at 497. However, in a series
of cases culminating in McConnell, the Court expanded the
definition to include “the appearance of undue influence”
created by large donations given for the purpose of “buying
access,” 540 U.S. at 144, 148. See also FEC v. Colo.
Republican Fed. Campaign Comm., 533 U.S. 431, 441 (2001);
Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377, 389 (2000). The
McConnell Court concluded that limiting the government’s anti-
corruption interest to preventing quid pro quo was a “crabbed
view of corruption, and particularly of the appearance of
corruption” that “ignores precedent, common sense, and the
realities of political fundraising.” 540 U.S. at 152. The Citizens
United Court retracted this view of the government’s interest,
saying that “[t]he fact that speakers may have influence over or
access to elected officials does not mean that these officials are
corrupt.” 130 S. Ct. at 910. The Court returned to its older
definition of corruption that focused on quid pro quo, saying
that “[i]ngratiation and access . . . are not corruption.” Id.
Therefore, without any evidence that independent expenditures
“lead to, or create the appearance of, quid pro quo corruption,”
and only “scant evidence” that they even ingratiate, id., the
Court concluded that independent expenditures do not corrupt
or create the appearance of corruption.

     In its briefs in this case, the FEC relied heavily on
McConnell, arguing that independent expenditures by groups
like SpeechNow benefit candidates and that those candidates are
accordingly grateful to the groups and to their donors. The
FEC’s argument was that large contributions to independent
expenditure groups “lead to preferential access for donors and
undue influence over officeholders.” Appellee’s Br. in Keating
v. FEC, at 16. Whatever the merits of those arguments before
Citizens United, they plainly have no merit after Citizens United.
                                14

     In light of the Court’s holding as a matter of law that
independent expenditures do not corrupt or create the
appearance of quid pro quo corruption, contributions to groups
that make only independent expenditures also cannot corrupt or
create the appearance of corruption. The Court has effectively
held that there is no corrupting “quid” for which a candidate
might in exchange offer a corrupt “quo.”

       Given this analysis from Citizens United, we must conclude
that the government has no anti-corruption interest in limiting
contributions to an independent expenditure group such as
SpeechNow. This simplifies the task of weighing the First
Amendment interests implicated by contributions to SpeechNow
against the government’s interest in limiting such contributions.
As we have observed in other contexts, “something
. . . outweighs nothing every time.” Nat’l Ass’n of Retired Fed.
Employees v. Horner, 879 F.2d 873, 879 (D.C. Cir. 1989).
Thus, we do not need to quantify to what extent contributions to
SpeechNow are an expression of core political speech. We do
not need to answer whether giving money is speech per se, or if
contributions are merely symbolic expressions of general
support, or if it matters in this case that just one person, David
Keating, decides what the group will say. All that matters is that
the First Amendment cannot be encroached upon for naught.

    At oral argument, the FEC insisted that Citizens United
does not disrupt Buckley’s longstanding decision upholding
contribution limits. This is literally true. But, as Citizens United
emphasized, the limits upheld in Buckley were limits on
contributions made directly to candidates. Limits on direct
contributions to candidates, “unlike limits on independent
expenditures, have been an accepted means to prevent quid pro
quo corruption.” Citizens United, 130 S. Ct. at 909 (citing
McConnell, 540 U.S. at 136-38 & n.40).
                                15

     The FEC also argues that we must look to the discussion
about the potential for independent expenditures to corrupt in
Colorado Republican Federal Campaign Committee v. FEC,
518 U.S. 604 (1996). This, too, is unavailing. In Colorado
Republican, the Court considered the constitutionality of FECA
provisions that exempted political party committees from the
general political committee contribution limits, but imposed
limitations on political party committees’ independent
expenditures. Id. at 611-13. A majority of the Court agreed that
the independent expenditure limitations were unconstitutional,
but no more than three Justices joined any single opinion. It is
true that the opinion of Justice Breyer did discuss the potential
for corruption or the appearance of corruption potentially arising
from independent expenditures, saying that “[t]he greatest
danger of corruption . . . appears to be from the ability of donors
to give sums up to $20,000 to a party which may be used for
independent party expenditures for the benefit of a particular
candidate,” thus evading the limits on direct contributions to
candidates. Id. at 617 (opinion of Breyer, J.). But Colorado
Republican concerned expenditures by political parties, which
are wholly distinct from “independent expenditures” as defined
by 2 U.S.C. § 431(17). Moreover, a discussion in a 1996
opinion joined by only three Justices cannot control our analysis
when the more recent opinion of the Court in Citizens United
clearly states as a matter of law that independent expenditures
do not pose a danger of corruption or the appearance of
corruption.

     The FEC argues that the analysis of Citizens United does
not apply because that case involved an expenditure limit while
this case involves a contribution limit. [Oral Tr. at 30, 31.]
Alluding to the divide between expenditure limits and
contribution limits established by Buckley, the FEC insists that
contribution limits are subject to a lower standard of review than
expenditure limits, so that “what may be insufficient to justify
                               16

an expenditure limit may be sufficient to justify a contribution
limit.” Oral Arg. Tr. at 39. Plaintiffs, on the other hand, argue
that Citizens United stands for the proposition that “burdensome
laws trigger strict scrutiny.” Oral Arg. Tr. at 58. We do not find
it necessary to decide whether the logic of Citizens United has
any effect on the standard of review generally afforded
contribution limits. The Citizens United Court avoided
“reconsider[ing] whether contribution limits should be subjected
to rigorous First Amendment scrutiny,” 130 S. Ct. at 909, and so
do we. Instead, we return to what we have said before: because
Citizens United holds that independent expenditures do not
corrupt or give the appearance of corruption as a matter of law,
then the government can have no anti-corruption interest in
limiting contributions to independent expenditure–only
organizations. No matter which standard of review governs
contribution limits, the limits on contributions to SpeechNow
cannot stand.

     We therefore answer in the affirmative each of the first
three questions certified to this Court. The contribution limits
of 2 U.S.C. § 441a(a)(1)(C) and 441a(a)(3) violate the First
Amendment by preventing plaintiffs from donating to
SpeechNow in excess of the limits and by prohibiting
SpeechNow from accepting donations in excess of the limits.
We should be clear, however, that we only decide these
questions as applied to contributions to SpeechNow, an
independent expenditure–only group. Our holding does not
affect, for example, § 441a(a)(3)’s limits on direct contributions
to candidates.

B. Organizational and Reporting Requirements (Certified
Questions 4 & 5)

     Disclosure requirements also burden First Amendment
interests because “compelled disclosure, in itself, can seriously
                                17

infringe on privacy of association and belief.” Buckley, 424
U.S. at 64. However, in contrast with limiting a person’s ability
to spend money on political speech, disclosure requirements
“impose no ceiling on campaign-related activities,” id., and “do
not prevent anyone from speaking,” McConnell, 540 U.S. at 201
(internal quotation marks and alteration omitted). Because
disclosure requirements inhibit speech less than do contribution
and expenditure limits, the Supreme Court has not limited the
government’s acceptable interests to anti-corruption alone.
Instead, the government may point to any “sufficiently
important” governmental interest that bears a “substantial
relation” to the disclosure requirement. Citizens United, 130 S.
Ct. at 914 (quoting Buckley, 424 U.S. at 64, 66, and citing
McConnell, 540 U.S. at 231-32). Indeed, the Court has
approvingly noted that “disclosure is a less restrictive alternative
to more comprehensive regulations of speech.” Citizens United,
130 S. Ct. at 915 (citing FEC v. Mass. Citizens for Life, Inc., 479
U.S. 238, 262 (1986)).

     The Supreme Court has consistently upheld organizational
and reporting requirements against facial challenges. In
Buckley, the Court upheld FECA’s disclosure requirements,
including the requirements of §§ 432, 433, and 434(a) at issue
here, based on a governmental interest in “provid[ing] the
electorate with information” about the sources of political
campaign funds, not just the interest in deterring corruption and
enforcing anti-corruption measures. 424 U.S. at 66. In
McConnell, the Court upheld similar requirements for
organizations engaging in electioneering communications for the
same reasons. 540 U.S. at 196. Citizens United upheld
disclaimer and disclosure requirements for electioneering
communications as applied to Citizens United, again citing the
government’s interest in providing the electorate with
information. 130 S. Ct. at 913-14. And while the Court in
Davis v. FEC found that a certain disclosure requirement
                               18

violated the First Amendment, it only did so because that
disclosure triggered the application of an unconstitutional
provision which imposed asymmetrical contribution limits on
candidates based on how much of their personal funds they
planned to spend. Because the asymmetrical limits were
unconstitutional, there was no justification for the disclosure
requirement. 128 S. Ct. at 2775.

      Plaintiffs do not disagree that the government may
constitutionally impose reporting requirements, and SpeechNow
intends to comply with the disclosure requirements that would
apply even if it were not a political committee. See 2 U.S.C. §
434(c) (reporting requirements for individuals or groups that are
not political committees that make independent expenditures);
§ 441d (disclaimer requirements for independent expenditures
and electioneering communications). Instead, plaintiffs argue
that the additional burden that would be imposed on SpeechNow
if it were required to comply with the organizational and
reporting requirements applicable to political committees is too
much for the First Amendment to bear. We disagree.

     SpeechNow, as we have said, intends to comply with the
disclosure requirements applicable to those who make
independent expenditures but are not organized as political
committees. Those disclosure requirements include, for
example, reporting much of the same data on contributors that
is required of political committees, 2 U.S.C. § 434(c);
information about each independent expenditure, such as which
candidate the expenditure supports or opposes, id.; reporting
within 24 hours expenditures of $1000 or more made in the
twenty days before an election, § 434(g)(1); and reporting within
48 hours any expenditures or contracts for expenditures of
$10,000 or more made at any other time, § 434(g)(2).
                                19

     Because SpeechNow intends only to make independent
expenditures, the additional reporting requirements that the FEC
would impose on SpeechNow if it were a political committee are
minimal. Indeed, at oral argument, plaintiffs conceded that “the
reporting is not really going to impose an additional burden” on
SpeechNow. Oral Arg. Tr. at 14 (“Judge Sentelle: So, just
calling you a [PAC] and not making you do anything except the
reporting is not really going to impose an additional burden on
you right? . . . Mr. Simpson: I think that’s true. Yes.”). Nor do
the organizational requirements that SpeechNow protests, such
as designating a treasurer and retaining records, impose much of
an additional burden upon SpeechNow, especially given the
relative simplicity with which SpeechNow intends to operate.

     Neither can SpeechNow claim to be burdened by the
requirement to organize as a political committee as soon as it
receives $1000, as required by the definition of “political
committee,” 2 U.S.C. § 431(4), 431(8), rather than waiting until
it expends $1000. Plaintiffs argue that such a requirement
forces SpeechNow to comply with the burdens of political
committees without knowing if it is going to have enough
money to make its independent expenditures. This is a specious
interpretation of the facts before us. As the district court found,
SpeechNow already has $121,700 in planned contributions from
plaintiffs alone, with dozens more individuals claiming to want
to donate. SpeechNow can hardly compare itself to “ad hoc
groups that want to create themselves on the spur of the
moment,” as plaintiffs attempted at oral argument. Oral Arg. Tr.
at 17. In addition, plaintiffs concede that in practice the burden
is substantially the same to any group whether the FEC imposes
reporting requirements at the point of the money’s receipt or at
the point of its expenditure. Oral Arg. Tr. at 15-16. A group
raising money for political speech will, we presume, always
hope to raise enough to make it worthwhile to spend it.
Therefore, groups would need to collect and keep the necessary
                               20

data on contributions even before an expenditure is made; it
makes little difference to the burden of compliance when the
group must comply as long as it anticipates complying at some
point.

     We cannot hold that the organizational and reporting
requirements are unconstitutional. If SpeechNow were not a
political committee, it would not have to report contributions
made exclusively for administrative expenses. See 2 U.S.C.
§ 434(c)(2)(C) (requiring only the reporting of contributions
“made for the purpose of furthering an independent
expenditure”). But the public has an interest in knowing who is
speaking about a candidate and who is funding that speech, no
matter whether the contributions were made towards
administrative expenses or independent expenditures. Further,
requiring disclosure of such information deters and helps expose
violations of other campaign finance restrictions, such as those
barring contributions from foreign corporations or individuals.
These are sufficiently important governmental interests to justify
requiring SpeechNow to organize and report to the FEC as a
political committee.

     We therefore answer the last two certified questions in the
negative. The FEC may constitutionally require SpeechNow to
comply with 2 U.S.C. §§ 432, 433, and 434(a), and it may
require SpeechNow to start complying with those requirements
as soon as it becomes a political committee under the current
definition of § 431(4).

                          Conclusion

     We conclude that the contribution limits set forth in
certified questions 1, 2, and 3 cannot be constitutionally applied
against SpeechNow and the individual plaintiffs. We further
conclude that there is no constitutional infirmity in the
                               21

application of the organizational, administrative, and reporting
requirements set forth in certified questions 4 and 5. We further
conclude that because of our decision today, as guided by
Citizens United, which intervened since the entry of the district
court’s denial of plaintiffs’ petition for injunctive relief, the
district court’s order denying injunctive relief is vacated and
remanded for further proceedings consistent with our decision.

                                                    So ordered.