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Prior to the United States Supreme Court's decision in Citizens United v. FEC, 2 U.S.C.S. § 441b made it unlawful for any corporation or union to use general treasury funds to make "independent expenditures," as that term was defined by 2 U.S.C.S. § 431(17), or expenditures for speech defined as "electioneering communications," which are certain types of political ads aired shortly before an election or primary under 2 U.S.C.S. § 434(f)(3). The Supreme Court declared that 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. 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 a candidate, the candidate's authorized political committee, or their agents, or a political party committee or its agents. 2 U.S.C.S. § 431(17). As the Court explained in Buckley v. Valeo when it struck down a limit on independent expenditures, the absence of prearrangement and coordination of an expenditure with a candidate or his agent alleviates the danger that expenditures will be given as a quid pro quo for improper commitments from the candidate.
David Keating is president of an unincorporated nonprofit association, SpeechNow.org (SpeechNow), that intends to engage in express advocacy 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, 175 L. Ed. 2d 753 (2010), which resolves this appeal.
Were the individuals bound by limitations on contributions that were imposed by 2 U.S.C.S. § 441a(a)(1)(C) and (a)(3), and an order enjoining appellee the FEC from enforcing those limits?
In accordance with that decision, the court held 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 the order denying that injunction and remand the matter to the district court for further proceedings consistent with our decision.