Vacated by Supreme Court, April 26, 2010
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
THE REAL TRUTH ABOUT OBAMA,
INC.,
Plaintiff-Appellant,
v.
FEDERAL ELECTION COMMISSION;
UNITED STATES DEPARTMENT OF
JUSTICE, No. 08-1977
Defendants-Appellees.
CAMPAIGN LEGAL CENTER;
DEMOCRACY 21,
Amici Supporting Appellees.
Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
James R. Spencer, Chief District Judge.
(3:08-cv-00483-JRS)
Argued: May 13, 2009
Decided: August 5, 2009
Before NIEMEYER, Circuit Judge, C. Arlen BEAM, Senior
Circuit Judge of the United States Court of Appeals for the
Eighth Circuit, sitting by designation, and Joseph F.
ANDERSON, Jr., United States District Judge for the
District of South Carolina, sitting by designation.
2 THE REAL TRUTH ABOUT OBAMA v. FEC
Affirmed by published opinion. Judge Niemeyer wrote the
opinion, in which Senior Judge Beam and Judge Anderson
joined.
COUNSEL
ARGUED: James Bopp, Jr., BOPP, COLESON & BOS-
TROM, Terre Haute, Indiana, for Appellant. Harry Jacobs
Summers, FEDERAL ELECTION COMMISSION, Washing-
ton, D.C., for Appellees. ON BRIEF: Michael Boos, LAW
OFFICE OF MICHAEL BOOS, Fairfax, Virginia; Richard E.
Coleson, Clayton J. Callen, BOPP, COLESON & BOS-
TROM, Terre Haute, Indiana, for Appellant. Thomasenia P.
Duncan, General Counsel, David Kolker, Associate General
Counsel, Adav Noti, FEDERAL ELECTION COMMISSION,
Washington, D.C.; Gregory G. Katsas, Assistant Attorney
General, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C.; Dana J. Boente, Acting United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Alexandria, Virginia; Michael S. Raab, Eric Fleisig-Greene,
UNITED STATES DEPARTMENT OF JUSTICE, Civil
Division, Washington, D.C., for Appellees. Donald J. Simon,
SONOSKY, CHAMBERS, SACHSE, ENDRESON &
PERRY, LLP, Washington, D.C., Fred Wertheimer,
DEMOCRACY 21, Washington, D.C., for Democracy 21,
Amicus Supporting Appellees; J. Gerald Hebert, Paul S.
Ryan, Tara Malloy, THE CAMPAIGN LEGAL CENTER,
Washington, D.C., for Campaign Legal Center, Amicus Sup-
porting Appellees.
OPINION
NIEMEYER, Circuit Judge:
The Real Truth About Obama, Inc. ("Real Truth") com-
menced this action against the Federal Election Commission
THE REAL TRUTH ABOUT OBAMA v. FEC 3
and the Department of Justice, challenging the constitutional-
ity of three Federal Election Commission regulations—11
C.F.R. §§ 100.22(b), 100.57(a), and 114.15—and a Federal
Election Commission enforcement policy under the First and
Fifth Amendments. Real Truth alleged that these regulations
chilled its right to disseminate information about presidential
candidate Senator Obama’s position on abortion. Real Truth
seeks, among other things, a preliminary injunction prohibit-
ing enforcement of these provisions.
The district court denied Real Truth’s motion for a prelimi-
nary injunction, finding that (1) Real Truth did not show that
it was likely to succeed on the merits as to any of its chal-
lenges; (2) Real Truth would not be irreparably harmed if the
preliminary injunction were not granted; and (3) issuing the
injunction would be against public policy.
On appeal, we apply the Supreme Court’s standard for pre-
liminary injunctions stated in Winter v. Natural Resources
Defense Council, Inc., 129 S. Ct. 365, 374-76 (2008), and
conclude that the district court did not abuse its discretion in
denying the motion for a preliminary injunction. Accordingly,
we affirm.
I
Real Truth, a Virginia nonprofit corporation organized on
July 24, 2008, as an "issue-adversary ‘527’ organization"
under § 527 of the Internal Revenue Code, commenced this
action six days after its incorporation to challenge three Fed-
eral Election Commission regulations—11 C.F.R. § 100.22(b)
(defining when a communication expressly advocates the
election or defeat of a clearly identified candidate); 11 C.F.R.
§ 100.57(a) (defining campaign contributions to include funds
"to support or oppose the election of a clearly identified Fed-
eral candidate" (emphasis added)); 11 C.F.R. § 114.15 (regu-
lating corporate and labor organization funds expended for
electioneering communications)—and a Federal Election
4 THE REAL TRUTH ABOUT OBAMA v. FEC
Commission enforcement policy issued for determining Polit-
ical Action Committee ("PAC") status using "the major-
purpose test." Real Truth alleged that these provisions are
"unconstitutionally overbroad" and "void for vagueness" in
violation of the First and Fifth Amendments.
In its complaint, Real Truth asserted that it intends to pub-
lish audio advertisements stating candidate Obama’s position
on abortion and to circulate a fundraising letter to raise money
to publish the "well-documented facts about Obama’s views
on abortion." While Real Truth asserted in its complaint that
it is not a PAC and did not advocate the election or defeat of
Senator Obama, it alleged that it
is chilled from proceeding with these activities
because it reasonably believes that it will be subject
to an FEC and DOJ investigation and possible
enforcement action potentially resulting in civil and
criminal penalties, based on the fact that the FEC has
deemed 527s to be PACs, based on [the challenged
regulations].
Included in the relief that Real Truth seeks is a preliminary
injunction enjoining the enforcement of the challenged provi-
sions against Real Truth’s "intended activities" and against
others similarly situated.
The district court denied Real Truth’s motion for prelimi-
nary injunction by order dated September 11, 2008, and Real
Truth filed this interlocutory appeal, contending that the dis-
trict court abused its discretion in denying its motion for a
preliminary injunction.
II
A preliminary injunction is an extraordinary remedy
afforded prior to trial at the discretion of the district court that
grants relief pendente lite of the type available after the trial.
THE REAL TRUTH ABOUT OBAMA v. FEC 5
See In re Microsoft Corp. Antitrust Litig., 333 F.3d 517, 524-
26 (4th Cir. 2003); see also De Beers Consol. Mines, Ltd. v.
United States, 325 U.S. 212, 220-21 (1945). Because a pre-
liminary injunction affords, on a temporary basis, the relief
that can be granted permanently after trial, the party seeking
the preliminary injunction must demonstrate by "a clear
showing" that, among other things, it is likely to succeed on
the merits at trial. Winter, 129 S. Ct. at 376; see also Mazurek
v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam). We
review the grant or denial of a preliminary injunction for
abuse of discretion. See Gonzales v. O Centro Espirita Benefi-
cente Uniao Do Vegetal, 546 U.S. 418, 428 (2006); In re
Microsoft Litig., 333 F.3d at 524-25.
In its recent opinion in Winter, the Supreme Court articu-
lated clearly what must be shown to obtain a preliminary
injunction, stating that the plaintiff must establish "[1] that he
is likely to succeed on the merits, [2] that he is likely to suffer
irreparable harm in the absence of preliminary relief, [3] that
the balance of equities tips in his favor, and [4] that an injunc-
tion is in the public interest." Winter, 129 S. Ct. at 374. And
all four requirements must be satisfied. Id. Indeed, the Court
in Winter rejected a standard that allowed the plaintiff to dem-
onstrate only a "possibility" of irreparable harm because that
standard was "inconsistent with our characterization of
injunctive relief as an extraordinary remedy that may only be
awarded upon a clear showing that the plaintiff is entitled to
such relief." Id. at 375-76.
Before the Supreme Court’s decision in Winter, the stan-
dard articulated in Blackwelder Furniture Co. of Statesville v.
Seilig Manufacturing Co., 550 F.2d 189 (4th Cir. 1977), gov-
erned the grant or denial of preliminary injunctions in the
Fourth Circuit. See also, e.g., Direx Israel, Ltd. v. Break-
through Med. Corp., 952 F.2d 802, 811-14 (4th Cir. 1991);
Rum Creek Coal Sales, Inc. v. Caperton, 926 F.2d 353, 359-
60 (4th Cir. 1991). In Blackwelder we adopted "the balance-
of-hardship test," which begins with balancing the hardships
6 THE REAL TRUTH ABOUT OBAMA v. FEC
of the parties. 550 F.2d at 196. We stated, "the first step in a
Rule 65(a) preliminary injunction situation is for the court to
balance the ‘likelihood’ of irreparable harm to the plaintiff
against the ‘likelihood’ of harm to the defendant." Id. at 195.
If that balancing results in an imbalance in the plaintiff’s
favor, we then determine whether the plaintiff "raised ques-
tions going to the merits so serious, substantial, difficult and
doubtful, as to make them fair ground for litigation and thus
for more deliberate investigation." Id. In Blackwelder, we spe-
cifically held that the district court erred when it demanded
that the plaintiff "first show ‘likelihood of success’ in order
to be entitled to preliminary relief." Id.
Similarly, in Rum Creek Coal, we reiterated that the "hard-
ship balancing test applies to determine the granting or denial
of a preliminary injunction." 926 F.2d at 359. We held that
only after the district court concluded that the balance of the
likelihood of the irreparable harm to the parties tilted in favor
of the plaintiff was it to turn to the merits of the case to deter-
mine whether the plaintiff "show[ed] grave or serious ques-
tions for litigation." Id. at 363 (internal quotation marks
omitted).
Our Blackwelder standard in several respects now stands in
fatal tension with the Supreme Court’s 2008 decision in Win-
ter.
First, the Supreme Court in Winter, recognizing that a pre-
liminary injunction affords relief before trial, requires that the
plaintiff make a clear showing that it will likely succeed on
the merits at trial. 129 S. Ct. at 374, 376. Yet in Blackwelder,
we instructed that the likelihood-of-success requirement be
considered, if at all, only after a balancing of hardships is
conducted and then only under the relaxed standard of show-
ing that "grave or serious questions are presented" for litiga-
tion. 550 F.2d at 195-96 (emphasis added); see also Rum
Creek Coal, 926 F.2d at 363. The Winter requirement that the
plaintiff clearly demonstrate that it will likely succeed on the
THE REAL TRUTH ABOUT OBAMA v. FEC 7
merits is far stricter than the Blackwelder requirement that the
plaintiff demonstrate only a grave or serious question for liti-
gation.
Second, Winter requires that the plaintiff make a clear
showing that it is likely to be irreparably harmed absent pre-
liminary relief. 129 S. Ct. at 374-76. Blackwelder, on the
other hand, requires that the court balance the irreparable
harm to the respective parties, requiring only that the harm to
the plaintiff outweigh the harm to the defendant. 550 F.2d at
196. Moreover, Blackwelder allows that upon a strong show-
ing on the probability of success, the moving party may dem-
onstrate only a possibility of irreparable injury, id. at 195 –-
a standard explicitly rejected in Winter, 129 S. Ct. at 375-76.
Third, in Winter, the Supreme Court emphasized the public
interest requirement, stating, "In exercising their sound discre-
tion, courts of equity should pay particular regard for the
public consequences in employing the extraordinary remedy
of injunction." 129 S. Ct. at 376-77 (emphasis added) (inter-
nal quotations marks and citation omitted). Yet, under the
Blackwelder standard, the public interest requirement "does
not appear always to be considered at length in preliminary
injunction analyses," even though it must always be consid-
ered. Rum Creek Coal, 926 F.2d at 366-67; see also Black-
welder, 550 F.2d at 196.
Fourth, while Winter articulates four requirements, each of
which must be satisfied as articulated, Blackwelder allows
requirements to be conditionally redefined as other require-
ments are more fully satisfied so that "grant[ing] or deny[ing]
a preliminary injunction depends upon a ‘flexible interplay’
among all the factors considered . . . for all four [factors] are
intertwined and each affects in degree all the others." 550
F.2d at 196. Thus, as an example, the court in Blackwelder
observed:
The two more important factors are those of proba-
ble irreparable injury to plaintiff without a decree
8 THE REAL TRUTH ABOUT OBAMA v. FEC
and of likely harm to the defendant with a decree. If
that balance is struck in favor of plaintiff, it is
enough that grave or serious questions are presented;
and plaintiff need not show a likelihood of success.
550 F.2d at 196 (emphasis added).
Because of its differences with the Winter test, the Black-
welder balance-of-hardship test may no longer be applied in
granting or denying preliminary injunctions in the Fourth Cir-
cuit, as the standard articulated in Winter governs the issuance
of preliminary injunctions not only in the Fourth Circuit but
in all federal courts.
Thus, we review the district court’s denial of the prelimi-
nary injunction under the Winter standard, considering in light
of the stated requirements the district court’s findings and
holdings (1) that Real Truth is not likely to succeed on the
merits; (2) that Real Truth will not be irreparably harmed if
the injunction is denied; and (3) that the injunction requested
would not be in the public interest.
III
In its complaint, Real Truth sought, as part of the relief
requested, a preliminary injunction prohibiting the enforce-
ment of 11 C.F.R. § 100.22(b) (defining the statutory term
"expressly advocating"); 11 C.F.R. § 100.57(a) (regulating
campaign contributions received in response to solicitations);
11 C.F.R. § 114.15 (regulating corporation or labor
organization-funded "electioneering communications"); and
the Federal Election Commission’s policy statement regarding
the analysis of PAC status. To support its position, Real Truth
relied heavily on our recent decision in North Carolina Right
to Life, Inc. v. Leake, 525 F.3d 274 (4th Cir. 2008). In deny-
ing Real Truth’s motion for a preliminary injunction, the dis-
trict court found that Real Truth was unlikely to succeed on
the merits because the statutory provisions that Real Truth
THE REAL TRUTH ABOUT OBAMA v. FEC 9
challenges are justified by Buckley v. Valeo, 424 U.S. 1
(1976), and its progeny.
The district court concluded (1) that § 100.22(b) "is virtu-
ally the same test stated by Chief Justice Roberts in the major-
ity opinion of [FEC v. Wisconsin Right to Life, Inc., 127 S.
Ct. 2652 (2007)]"; (2) that the "support or oppose" language
in § 100.57 is not unconstitutionally vague because "these
words have even been suggested by the Fourth Circuit as a
proper standard to use, see Leake, 525 F.3d at 301"; (3) that
§ 114.15, regulating the permissible use of corporate and
labor organization funds, "simply adopted the test enumerated
in [Wisconsin Right to Life]" and therefore was not unconsti-
tutionally overbroad or vague; and (4) that the "major pur-
pose" test in the Federal Election Commission’s policy
statement draws its essence from court cases that determine
whether an organization can be regulated by the Federal Elec-
tion Commission as a PAC.
In determining whether the district court erred in conclud-
ing that Real Truth did not make a clear showing that it was
likely to succeed, we begin by recognizing that some regula-
tion of speech and political contributions related to campaigns
for election is constitutional. See, e.g., McConnell v. FEC,
540 U.S. 93, 115-21 (2003) (reciting history of campaign
finance regulation and acknowledging that some regulation is
necessary to "protect[ ] the integrity of our system of repre-
sentative democracy"). Supreme Court precedent allows for
the regulation of contributions to and expenditures by PACs
that are narrowly defined as having "the major purpose" of
expressly advocating "the election or defeat of a clearly iden-
tified candidate [for federal office]." Buckley v. Valeo, 424
U.S. 1, 79-80 (1976); cf. Leake, 525 F.3d at 287 (holding that
a state campaign finance statute that defined PACs as those
having "a major purpose," as distinct from "the major pur-
pose," to expressly advocate was unconstitutionally over-
broad). These opinions also allow for the regulation of
corporations and labor unions’ communications, prohibiting
10 THE REAL TRUTH ABOUT OBAMA v. FEC
them from using general funds to "expressly advocate" for or
against the election of a candidate. See, e.g., Buckley, 424
U.S. at 28 n.31; see also FEC v. Mass. Citizens for Life, Inc.,
479 U.S. 238, 253 (1986). Although magic words such as
"vote for, elect, support, cast your ballot for, Smith for Con-
gress, vote against, defeat [and] reject" are sufficient to qual-
ify such communications as express advocacy of a particular
named official, Buckley, 424 U.S. at 44 n.52 (internal quota-
tion marks omitted), a communication without the magic
words may still be sufficient as the functional equivalent of
the magic words and therefore may be regulated, but "only if
the ad is susceptible of no reasonable interpretation other than
as an appeal to vote for or against a specific candidate." Wis-
consin Right to Life, 127 S. Ct. at 2667; cf. Leake, 525 F.3d
at 283-84 (holding a North Carolina campaign finance statute
unconstitutional where "[t]he very terms of [the] statute—
including, but not limited to, ‘essential nature,’ ‘the language
of the communication as a whole,’ [and] ‘the timing of the
communication in relation to events of the day’ . . .— are
clearly ‘susceptible’ to multiple interpretations").
Notwithstanding the numerous Supreme Court opinions on
the subject, the regulation of speech related to political cam-
paigns remains a difficult and complicated area of law that is
still developing. And for that reason, as well as the stringent
preliminary injunction standard, Real Truth bears a heavy
burden in showing its likelihood of success. Any relaxation of
its burden, for example to require that Real Truth show only
a possibility that it will eventually prevail, would be inade-
quate. See Winter, 129 S. Ct. at 375-76.
When we compare the challenged provisions with those
upheld by the Supreme Court, we reach the same conclusion
reached by the district court that Real Truth has not, at this
preliminary stage in the litigation, made a clear showing that
it is likely to succeed on the merits at trial, even though we
do not decide the merits nor intend to foreclose any outcome
on the merits.
THE REAL TRUTH ABOUT OBAMA v. FEC 11
First, considering the definition of "expressly advocating"
in 11 C.F.R. § 100.22(b), which describes the functional
equivalent of the "magic words" specified in § 100.22(a), we
cannot conclude that it is likely unconstitutional because the
definition is facially consistent with the language in Wiscon-
sin Right to Life. Section 100.22(b) provides:
Expressly advocating means any communication that
—
* * *
(b) When taken as a whole and with limited refer-
ence to external events, such as the proximity to the
election, could only be interpreted by a reasonable
person as containing advocacy of the election or
defeat of one or more clearly identified candidate(s)
because —
(1) The electoral portion of the communica-
tion is unmistakable, unambiguous, and
suggestive of only one meaning; and
(2) Reasonable minds could not differ as to
whether it encourages actions to elect or
defeat one or more clearly identified candi-
date(s) or encourages some other kind of
action.
11 C.F.R. § 100.22(b). This language corresponds to the defi-
nition of the functional equivalent of express advocacy given
in Wisconsin Right to Life. See 127 S. Ct. at 2667. In Wiscon-
sin Right to Life, the Court stated that where an "ad is suscep-
tible of no reasonable interpretation other than as an appeal to
vote for or against a specific candidate," it can be regulated
in the same manner as express advocacy. 127 S. Ct. at 2267;
cf. Leake, 525 F.3d at 283-84 (holding a North Carolina cam-
paign finance statute unconstitutional where the terms of the
12 THE REAL TRUTH ABOUT OBAMA v. FEC
statute that defined express advocacy were "clearly suscepti-
ble to multiple interpretations" (emphasis added) (internal
quotation marks omitted)). And consistent with Wisconsin
Right to Life and unlike the statute considered in Leake,
§ 100.22(b) cabins the application of the regulation to com-
munications that "could only be interpreted by a reasonable
person as containing advocacy of the election or defeat of one
or more clearly identified candidate(s)" (emphasis added) and
where "[r]easonable minds could not differ as to whether it
encourages actions to elect or defeat one or more clearly iden-
tified candidate(s) or encourages some other kind of action."
By limiting its application to communications that yield no
other interpretation but express advocacy as described by Wis-
consin Right to Life, § 100.22(b) is likely constitutional.
With respect to 11 C.F.R. § 100.57, Real Truth challenges
as unconstitutionally vague the words "support or oppose the
election of a clearly identified Federal candidate" (emphasis
added) when used to identify regulated campaign funds. Sec-
tion 100.57 defines as follows those monies that will be
treated as contributions subject to regulations:
(a) Treatment as contributions. A gift, subscription,
loan, advance, or deposit of money or anything of
value made by any person in response to any com-
munication is a contribution to the person making
the communication if the communication indicates
that any portion of the funds received will be used to
support or oppose the election of a clearly identified
Federal candidate.
11 C.F.R. § 100.57(a) (emphasis added). Contrary to Real
Truth’s argument, however, we have expressly sanctioned the
challenged language. In Leake, we noted that North Carolina
"remains free to enforce all campaign finance regulations that
incorporate the phrase ‘to support or oppose the nomination
or election of one or more clearly identified candidates.’" 525
F.3d at 301. Accordingly, we conclude that Real Truth is not
THE REAL TRUTH ABOUT OBAMA v. FEC 13
likely to prevail on its challenge to § 100.57(a), although
again we do not decide the ultimate merits of that issue here.
Real Truth also challenges as unconstitutionally vague 11
C.F.R. § 114.15, regulating corporate and labor organization
funds expended for certain electioneering communications.
That regulation provides:
Corporations and labor organizations may make an
electioneering communication . . . to those outside
the restricted class unless the communication is sus-
ceptible of no reasonable interpretation other than as
an appeal to vote for or against a clearly identified
Federal candidate.
11 C.F.R. § 114.15(a). The regulation also provides that "any
doubt [concerning whether a communication is an appeal to
vote for or against a clearly identified Federal candidate] will
be resolved in favor of permitting the communication." 11
C.F.R. § 114.15(c)(3). Again, as with § 100.22(b), § 114.15(a)
mirrors the language of Wisconsin Right to Life by limiting its
application to communications that cannot be interpreted rea-
sonably in any way other than as an appeal to vote for or
against a clearly identified federal candidate. See 127 S. Ct.
at 2667. In view of the fact that § 114.15(a) mirrors the lan-
guage of Wisconsin Right to Life, we cannot conclude that
Real Truth is likely to succeed on the merits in challenging
this provision as unconstitutional.
Finally, Real Truth challenges the Federal Election Com-
mission’s failure to announce a specific major purpose test in
its policy statements for enforcement contained at 69 Fed.
Reg. 68056 (Nov. 23, 2004) and 72 Fed. Reg. 5595 (Feb. 7,
2007). The major purpose doctrine, as noted by the Federal
Election Commission in its policy statements, "operates to
limit the reach of the [Federal Election] statute in certain cir-
cumstances." 72 Fed. Reg. 5595, 5602. Thus, an organization
(corporation or labor union) with activities that center around
14 THE REAL TRUTH ABOUT OBAMA v. FEC
something other than electing or defeating a candidate will
never have the major purpose required by the statute even if
it is one of several of the organization’s major purposes. The
major purpose test is intended to exempt from regulation
organizations that expend or contribute money for express
advocacy but do not have as the major purpose of their exis-
tence the election or defeat of a particular candidate. The
Commission explained that "[a]pplying the major purpose
doctrine . . . requires the flexibility of a case-by-case analysis
of an organization’s conduct that is incompatible with a one-
size-fits-all rule." Id. at 5601. It is this allowance of a case-by-
case analysis that Real Truth challenges as unconstitutionally
overbroad.
The approach taken by the Federal Election Commission in
this regulation, however, appears simply to be adopted from
Supreme Court jurisprudence that takes a fact-intensive
approach to determining the major purpose of a particular
organization’s contributions. For example, in Massachusetts
Citizens for Life, 479 U.S. at 249-51, the Court examined the
entire record to conclude that the plaintiff did not satisfy "the
major purpose" test. See also Akins v. FEC, 101 F.3d 731, 743
(D.C. Cir. 1996) (holding that "it is the purpose of the organi-
zation’s disbursements, not of the organization itself, that is
relevant"), vacated on other grounds, FEC v. Akins, 524 U.S.
11 (1998); Shays v. FEC, 511 F. Supp. 2d 19, 26-31 (D.D.C.
2007) (holding that FEC’s choice to regulate § 527 groups by
determining whether they qualified as political action com-
mittees on a case-by-case basis was neither arbitrary nor
capricious); cf. Buckley, 424 U.S. at 79-80 (announcing "the
major purpose" test but not defining how to determine the
major purpose of an organization).
In view of the similarity of the approach taken by the Fed-
eral Election Commission in its policy statements and the
positions taken by the courts, we cannot conclude that Real
Truth has carried its heavy burden at this stage of the case of
THE REAL TRUTH ABOUT OBAMA v. FEC 15
clearly showing that it is likely to succeed on the merits with
regard to the Commission’s enforcement strategy.
To justify an injunction before trial on the merits, it is
incumbent upon Real Truth to make a clear showing that it is
likely to succeed at trial on the merits. Because of the close
relationship between the text of the provisions challenged and
binding court decisions, we cannot conclude that the district
court erred in finding that Real Truth failed to meet that bur-
den.
IV
In addition to the requirement of making a clear showing
that it will likely succeed on the merits at trial, Real Truth was
also required to make a clear showing that it was likely to suf-
fer irreparable harm in the absence of the preliminary injunc-
tion. See Winter, 129 S. Ct. at 374-76.
The district court recognized that chilling speech consti-
tutes irreparable injury. See Elrod v. Burns, 427 U.S. 347, 373
(1976) ("The loss of First Amendment freedoms, for even
minimal periods of time, unquestionably constitutes irrepara-
ble injury"). But it also found that Real Truth was free to dis-
seminate its message and make expenditures as it wished, and
its only limitation was on "contributions based on constitu-
tionally permitted restrictions," which the district court deter-
mined "[did] not amount to enough harm to constitute
irreparable harm."
While the district court’s ruling regarding harm was, in
effect, an extension of its conclusion that the restrictions were
likely constitutional, the district court recognized also that
Real Truth had not made a showing that its proposed commu-
nications would violate the regulations as written.
Regardless of whether the district court was correct in this
regard, we conclude that it acted within its discretion in deter-
16 THE REAL TRUTH ABOUT OBAMA v. FEC
mining that any harm created by Real Truth’s doubt about the
legality of its intended fundraising and advertising was out-
weighed by the public interest identified by the Supreme
Court in the enforcement of narrow restrictions on contribu-
tions to political candidates. See McConnell, 540 U.S. at 115-
23 (noting the importance of the public interest in "combating
the appearance or perception of corruption engendered by
large [unregulated] campaign contributions"); Mass. Citizens
for Life, 479 U.S. at 264 (noting that the regulations prevent
"corporations from serving as conduits for the type of direct
spending that creates a threat to the political marketplace");
Buckley, 424 U.S. at 29 ("[T]he weighty interests served by
restricting the size of financial contributions to political candi-
dates are sufficient to justify the limited effect upon First
Amendment freedoms caused by the $1,000 contribution ceil-
ing"); Leake, 525 F.3d at 284 (noting that underpinning
Supreme Court campaign finance jurisprudence is a desire to
strike "a balance between the legislature’s authority to regu-
late elections and the public’s fundamental First Amendment
right to engage in political speech"). The district court also
recognized that overruling, on a preliminary basis, regulations
that apparently serve these objectives would not be "in the
public interest," as required by Winter, 129 S. Ct. at 374, and
would create a "wild west" of electioneering fundraising and
communications. We cannot conclude that it abused its dis-
cretion in this regard.
Accordingly, we affirm the district court’s order denying a
preliminary injunction.
AFFIRMED