FECA allows a person to submit a “written request concerning the application” of FECA or any Commission regulation “with respect to a specific transaction or activity by the person.” 2 U.S.C. § 437f(a)(1). In response, the Commission “shall render a written opinion relating to such transaction or activity to the person” within 60 days.

In light of this supposed lack of Commission guidance, defendants could have obtained from the FEC, in just 60 days or less, their own advisory opinion on whether their proposed spending would comply with the law. See 2 U.S.C. § 437f(a)(1). But they did not, and that failure alone suggests a lack of good faith in attempting to comply with the law.

In the unlikely event that Plaintiff remains unclear as to the permissibility of its next film and ads after they have been completed, Plaintiff may request an advisory opinion from the Commission and will receive a timely response. See 2 U.S.C. § 437f(a). There was no “delay” or “imprecision” in the analysis in the Commission’s briefs of Plaintiff’s film and the “Questions” ad; that analysis was conducted under the plain language of WRTL, supra ¶ 21, promptly upon Plaintiff’s addition of the funding restriction to this case, supra ¶ 20.

In the unlikely event that Plaintiff remains unclear as to the permissibility of its next film and ads after they have been completed, Plaintiff may request an advisory opinion from the Commission and will receive a timely response. See 2 U.S.C. § 437f(a). There was no “delay” or “imprecision” in the analysis in the Commission’s briefs of Plaintiff’s film and the “Questions” ad; that analysis was conducted under the plain language of WRTL, supra ¶ 21, promptly upon Plaintiff’s addition of the funding restriction to this case, supra ¶ 20.

FEC AO 2006-35 (Kolbe), 2007 WL 419188, at *3 (Jan. 26, 2007)12. Defendants also maintain that they were entitled to rely on Kolbe’s holding, and other Commission opinions, pursuant to 2 U.S.C. § 437f(c).13 3. Finally, on October 31, 2013, the Commission issued an opinion that informs this matter.

1, the FEC accepted the AOR for review, assigned it AOR number 2007-32, and posted it on the FEC’s website for public commentary on November 13 Case 1:08-cv-00248-JR Document 28-2 Filed 06/20/2008 Page 13 of 28 28, 2007. Under 2 U.S.C. § 437f(a)(1) and 11 C.F.R. § 112.4(a), the FEC had 60 days from this date in which to render a written response to SpeechNow.org’s request.

Finally, the Commission is currently considering a number of pending advisory opinion requests, which the Commission must answer within 60 days. See 2 U.S.C. § 437f(a)(1). 9 Case 1:07-cv-02240-RCL-RWR Document 19 Filed 12/20/2007 Page 9 of 12 Metzl v. Leininger, 57 F.3d 618, 622 (7th Cir. 1995); see also Missouri Republican Party v. Lamb, 270 F.3d 567, 570 (8th Cir. 2001) (“[A] statute is constitutional if there is objective evidence of facts sufficient to render that statute valid, even if those facts were not operating subjectively in the minds of the legislators to motivate them when they enacted that statute.”)

In such circumstances, it is appropriate for this Court to require CCL to establish its standing by seeking an advisory opinion from the Commission as to whether it qualifies under MCFL before the Court proceeds to consider CCL’s constitutional challenges. See 2 U.S.C. 437f (requiring FEC to issue advisory opinion within 60 days); McConnell, 540 U.S. at 170 n.64 (advisory opinion process adequate method to clear up uncertainty about application of the Act). “If the FEC should issue an advisory opinion that [CCL] is exempt from regulation under section 441b, plaintiffs would have no standing to challenge section 441b or any companion regulation.

See 2 U.S.C. §3 438(a)(8) (“The Commission shall . . . prescribe rules, regulations, and forms to carry out the provisions of this Act[.]”); 2 U.S.C. § 437f (establishing system of FEC advisory opinions); Buckley v. Valeo, 424 U.S. 1, 109-110 (1976). -4- Case 1:11-cr-00161-UA Document 26 Filed 08/29/11 Page 4 of 6 the payment is made solely for a personal purpose and would have been made irrespective of the candidacy, it is not a campaign contribution.

See 2 U.S.C. §§ 432, 433, and 434(a). D. SpeechNow.org’s Advisory Opinion Request On November 19, 2007, SpeechNow.org filed a request for an advisory opinion (AOR) with the FEC pursuant to 2 U.S.C. § 437f. The request presented, in essence, three questions: (1) Must SpeechNow.org register as a political committee as defined in 2 U.S.C. § 431(4), and, if so, when?