PUBLISHED


UNITED STATES COURT OF APPEALS
              FOR THE FOURTH CIRCUIT


THE REAL TRUTH ABOUT ABORTION,          
INC., f/k/a THE REAL TRUTH ABOUT
OBAMA, INC.,
                 Plaintiff-Appellant,
                 v.
FEDERAL ELECTION COMMISSION;
UNITED STATES DEPARTMENT OF
JUSTICE,
                                           No. 11-1760

              Defendants-Appellees.


DEMOCRACY 21; THE CAMPAIGN
LEGAL CENTER,
      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: March 21, 2012

                   Decided: June 12, 2012

      Before NIEMEYER, GREGORY, and FLOYD,
                   Circuit Judges.
2         THE REAL TRUTH ABOUT ABORTION, v. FEC
Affirmed by published opinion. Judge Niemeyer wrote the
opinion, in which Judge Gregory and Judge Floyd joined.


                        COUNSEL

ARGUED: James Bopp, Jr., THE BOPP LAW FIRM, Terre
Haute, Indiana, for Appellant. Adav Noti, FEDERAL ELEC-
TION COMMISSION, Washington, D.C., for Appellees. ON
BRIEF: Michael Boos, LAW OFFICE OF MICHAEL
BOOS, Fairfax, Virginia; Richard E. Coleson, Kaylan L. Phil-
lips, BOPP, COLESON & BOSTROM, Terre Haute, Indiana,
for Appellant. Anthony Herman, General Counsel, David
Kolker, Associate General Counsel, Harry J. Summers, Assis-
tant General Counsel, FEDERAL ELECTION COMMIS-
SION, Washington, D.C.; Neil H. MacBride, United States
Attorney, Alexandria, Virginia; Tony West, Assistant Attor-
ney General, Michael S. Raab, Daniel Tenny, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C.,
for Appellees. Fred Wertheimer, DEMOCRACY 21, Wash-
ington, D.C.; Donald J. Simon, SONOSKY, CHAMBERS,
SACHSE, ENDRESON & PERRY, LLP, Washington, D.C.;
J. Gerald Hebert, Tara Malloy, Paul S. Ryan, THE CAM-
PAIGN LEGAL CENTER, Washington, D.C., for Amici Sup-
porting Appellees.


                        OPINION

NIEMEYER, Circuit Judge:

  The Real Truth About Abortion, Inc. (formerly known as
The Real Truth About Obama, Inc.), a Virginia non-profit
corporation organized under § 527 of the Internal Revenue
Code to provide "accurate and truthful information about the
public policy positions of Senator Barack Obama," com-
menced this action against the Federal Election Commission
           THE REAL TRUTH ABOUT ABORTION, v. FEC              3
and the Department of Justice, contending that it was
"chilled" from posting information about then-Senator Obama
because of the vagueness of a Commission regulation and a
Commission policy relating to whether Real Truth has to
make disclosures or is a "political committee" (commonly
referred to as a political action committee or PAC). Real
Truth asserts that it is not subject to regulation but fears the
Commission could take steps to regulate it because of the
vagueness of 11 C.F.R. § 100.22(b) and the policy of the
Commission to determine whether an organization is a PAC
by applying the "major purpose" test on a case-by-case basis,
as published at 72 Fed. Reg. 5595 (Feb. 7, 2007). It alleges
that the regulation and policy are unconstitutionally broad and
vague, both facially and as applied to it, in violation of the
First and Fifth Amendments.

  On cross-motions for summary judgment, the district court
found both the regulation and the policy constitutional. And,
applying the "exacting scrutiny" standard applicable to disclo-
sure provisions, we affirm.

                               I

  Real Truth was organized on July 24, 2008, as an "issue-
adversary ‘527’ organization" under § 527 of the Internal
Revenue Code. In its IRS filing, Real Truth stated that its pur-
pose was to provide truthful information about the public
positions taken by Senator Barack Obama but that it would
not "expressly advocate the election or defeat" of any political
candidate or "make any contribution" to a candidate.

   Within a few days of its incorporation, Real Truth com-
menced this action challenging three of the Commission’s
regulations implementing the Federal Election Campaign Act
("FECA")—11 C.F.R. § 100.22(b) (defining when a commu-
nication expressly advocates the election or defeat of a clearly
identified candidate); 11 C.F.R. § 100.57(a) (defining contri-
butions for certain purposes under FECA); and 11 C.F.R.
4          THE REAL TRUTH ABOUT ABORTION, v. FEC
§ 114.15 (regulating the use of corporate or union funds for
"electioneering communications"). In addition, Real Truth
challenged the Commission’s policy of determining PAC sta-
tus by using a "major purpose" test on a case-by-case basis.
It asserted that these regulations and the policy were unconsti-
tutional, facially and as applied, in that they were overbroad
and vague, in violation of the First and Fifth Amendments to
the Constitution.

   Real Truth’s as-applied challenge was mounted in the con-
text of two radio advertisements it intended to air concerning
then-candidate Obama’s positions on abortion. The first ad,
entitled "Change," states:

    (Woman’s voice): Just what is the real truth about
    Democrat Barack Obama’s position on abortion?

    (Actor’s voice mimicking Obama’s voice) Change.
    Here is how I would change America . . . about abor-
    tion:

    •   Make taxpayers pay for all 1.2 million abortions
        performed in America each year

    •   Make sure that minor girls’ abortions are kept
        secret from their parents

    •   Make partial-birth abortion legal

    •   Give Planned Parenthood lots more money to
        support abortion

    •   Change current federal and state laws so that
        babies who survive abortions will die soon after
        they are born

    •   Appoint more liberal Justices on the U.S.
        Supreme Court
           THE REAL TRUTH ABOUT ABORTION, v. FEC               5
    One thing I would not change about America is
    abortion on demand, for any reason, at any time dur-
    ing pregnancy, as many times as a woman wants
    one.

    (Woman’s voice). Now you know the real truth
    about Obama’s position on abortion. Is this the
    change you can believe in?

The second ad, entitled "Survivor," reads:

    (Nurse) The abortion was supposed to kill him, but
    he was born alive. I couldn’t bear to follow hospital
    policy and leave him on a cold counter to die, so I
    held and rocked him for 45 minutes until he took his
    last breath.

    (Male voice) As an Illinois Democrat State Senator,
    Barack Obama voted three times to deny lifesaving
    medical treatment to living, breathing babies who
    survive abortions. For four years, Obama has tried to
    cover-up his horrendous votes by saying the bills
    didn’t have clarifying language he favored. Obama
    has been lying. Illinois documents from the very
    committee Obama chaired show he voted against the
    bill that did contain the clarifying language he says
    he favors.

    Obama’s callousness in denying lifesaving treatment
    to tiny babies who survive abortions reveals a lack
    of character and compassion that should give every-
    one pause.

   Real Truth alleged that it planned to spend over $1,000 to
air these advertisements during the 60-day period immedi-
ately before the 2008 general election and that some of this
money would be raised through the circulation of a fundrais-
ing letter soliciting contributions to "get the word out" regard-
6          THE REAL TRUTH ABOUT ABORTION, v. FEC
ing then-Senator Obama’s views on abortion. In its complaint,
it expressed the fear that these expenditures might be con-
strued as "independent expenditures" under 2 U.S.C.
§ 431(17) and 11 C.F.R. § 100.22(b), subjecting it to disclo-
sure requirements and potentially making it a PAC subject to
further regulation.

   Real Truth sought a preliminary injunction enjoining
enforcement of the challenged regulations and policy against
its "intended activities" and against others similarly situated,
and the district court denied Real Truth’s motion. On appeal,
we affirmed the district court’s denial of the injunction, apply-
ing the preliminary injunction standard announced in Winter
v. Natural Resources Defense Council, 

(2008),
and holding that Real Truth had not carried its burden of
showing a likelihood of success, as well as showing the other
requirements for a preliminary injunction. Real Truth About
Obama v. Fed. Election Comm’n, 

, 351-52 (4th
Cir. 2009). Real Truth filed a petition for a writ of certiorari
in the Supreme Court.

   While Real Truth’s petition for a writ of certiorari was
pending, the Supreme Court decided Citizens United v. Fed-
eral Election Commission, 

(2010), striking
down, on First Amendment grounds, a provision of the Bipar-
tisan Campaign Reform Act ("BCRA") banning corporations
and labor unions from using their general treasury funds for
electioneering communications. Based on its decision, the
Court granted Real Truth’s petition for certiorari, vacated this
court’s judgment, and remanded the case for further consider-
ation. Real Truth About Obama, Inc. v. Fed. Election
Comm’n, 

(2010).

   Also in the interim, the D.C. Circuit decided EMILY’s List
v. Federal Election Commission, 

(D.C. Cir. 2009),
which struck down certain aspects of 11 C.F.R. § 100.57, also
the subject of Real Truth’s challenge in this court, leading the
           THE REAL TRUTH ABOUT ABORTION, v. FEC                7
Commission to announce that it would cease enforcement of
that regulation.

   On remand from the Supreme Court, we reissued the por-
tions of our original decision "stating the facts and articulating
the standard for the issuance of preliminary injunctions" and
remanded the remaining issues to the district court for recon-
sideration in light of the Supreme Court’s decision in Citizens
United. Real Truth About Obama, Inc. v. Fed. Election
Comm’n, 

(4th Cir. 2010) (per curiam).

   On remand, the parties agreed that Real Truth’s challenges
to 11 C.F.R. § 114.15 and 11 C.F.R. § 100.57 had become
moot. And on Real Truth’s remaining challenges, the district
court granted summary judgment to the Commission and the
Department of Justice, holding that 11 C.F.R. § 100.22(b) and
the Commission’s case-by-case policy for determining
whether an organization was a PAC were constitutional, both
facially and as applied to Real Truth. More particularly, the
court found that § 100.22(b) was consistent with the "appeal-
to-vote" test articulated in Federal Election Commission v.
Wisconsin Right to Life, Inc., 

(2007), and that
the Commission was entitled to use a multifactor approach on
a case-by-case basis for determining PAC status because "as-
certaining an organization’s single major purpose is an inher-
ently comparative task and requires consideration of the full
range of an organization’s activities." Real Truth About
Obama, Inc. v. Fed. Election Comm’n, 

,
746, 751 (E.D. Va. 2011).

  From the district court’s judgment, dated June 16, 2011,
Real Truth filed this appeal.

                                II

  At the outset, we address Real Truth’s contention that, in
reviewing the Commission’s regulation and policy, we should
apply the strict scrutiny standard. Real Truth argues that the
8            THE REAL TRUTH ABOUT ABORTION, v. FEC
regulation and policy place onerous burdens on speech similar
to the burdens to which the Supreme Court applied strict scru-
tiny in Citizens 

(finding that 2
U.S.C. § 441b, restricting the amount of money a corporation
could independently spend on political communication, "si-
lenced entities whose voices the Government deems to be sus-
pect" and therefore should be reviewed under the strict
scrutiny standard).

   The Commission contends instead that because the chal-
lenged regulation and policy only implicate disclosure
requirements and do not restrict either campaign activities or
speech, we should apply the less stringent "exacting scrutiny"
standard. Under this standard, the government must demon-
strate only a "substantial relation" between the disclosure
requirement and "sufficiently important government interest."1
Citizens 

(internal quotation marks
omitted).

   Regulation 100.22(b), which Real Truth challenges as too
broad and vague, implements the statutory definition of "inde-
pendent expenditure," 2 U.S.C. § 431(17), which in turn
determines whether a person must make disclosures as
required by 2 U.S.C. § 434(c). The definition could also con-
tribute to the determination of whether Real Truth is a PAC
because it is an organization with expenditures of more than
$1,000, which would impose not only disclosure require-
ments, but also organizational requirements. See Speech-
Now.org v. Fed. Election Comm’n, 

(D.C. Cir.
2010) (en banc). Similarly, the Commission’s policy for
applying the "major purposes" test to organizations, which
Real Truth also challenges, would also determine whether
    1
   Real Truth appears to argue in the alternative that if exacting scrutiny
does apply, then it must be a "high" version of that standard, rather than
a "complaisant" one. This hybrid standard finds no support in the relevant
case law, however, which has consistently applied only one type of exact-
ing scrutiny.
           THE REAL TRUTH ABOUT ABORTION, v. FEC                 9
Real Truth is a PAC, again implicating disclosure and organi-
zational requirements.

   Such disclosure and organizational requirements, however,
are not as burdensome on speech as are limits imposed on
campaign activities or limits imposed on contributions to and
expenditures by campaigns. Indeed, the Supreme Court has
noted that "disclosure requirements certainly in most applica-
tions appear to be the least restrictive means of curbing the
evils of campaign ignorance and corruption that Congress
found to exist." Buckley v. Valeo, 

, 68 (1976); see
also Fed. Election Comm’n v. Massachusetts Citizens for Life,

, 262 (1986). Accordingly, an intermediate level
of scrutiny known as "exacting scrutiny" is the appropriate
standard to apply in reviewing provisions that impose disclo-
sure requirements, such as the regulation and policy. See

; see also Citizens 

(applying the exacting scrutiny standard in reviewing
certain disclosure provisions of the BCRA).

   Real Truth’s reliance on the Court’s application of strict
scrutiny in Citizens United is misplaced. In its brief, Real
Truth repeatedly notes the Citizens United majority’s refer-
ence to "onerous" burdens on PAC speech, which would ordi-
narily be subject to strict scrutiny. While it is true that the
Court used the word "onerous" in describing certain PAC-
style obligations and restrictions, it did so in a context signifi-
cantly different from the one facing Real Truth. The regula-
tion invalidated in Citizens United, 2 U.S.C. § 441b, required
corporations to set up a separate PAC with segregated funds
before making any direct political speech. These corporate
PACs were subject to several limitations on allowable contri-
butions, including a prohibition on the acceptance of funds
from the corporation itself. See 2 U.S.C. §§ 441a(a)(5),
441b(b)(4). The Court accordingly held that the option to
create a separate corporate PAC did not alleviate the burden
imposed by § 441b on the corporation’s own speech. In con-
trast, the PAC disclosure requirements at issue here neither
10         THE REAL TRUTH ABOUT ABORTION, v. FEC
prevent Real Truth from speaking nor "impose [a] ceiling on
campaign-related activities." 

. Indeed,
the Court distinguished its application of the strict scrutiny
standard to expenditure restrictions from the exacting scrutiny
standard applicable to disclosure requirement provisions, stat-
ing:

     Disclaimer and disclosure requirements may burden
     the ability to speak, but they impose no ceiling on
     campaign-related activities and do not prevent any-
     one from speaking. The Court has subjected these
     requirements to exacting scrutiny, which requires a
     substantial relation between the disclosure require-
     ment and a sufficiently important governmental
     interest.

Citizens 

(internal quotation marks
and citations omitted).

   In sum, we conclude that even after Citizens United, it
remains the law that provisions imposing disclosure obliga-
tions are reviewed under the intermediate scrutiny level of
"exacting scrutiny." See Doe v. Reed, 

, 2818
(2010) (applying exacting scrutiny to disclosure law relating
to ballot referenda); 

(apply-
ing exacting scrutiny to PAC disclosure obligations under
FECA); Nat’l Org. for Marriage v. McKee, 

, 55-
57 (1st Cir. 2011) (applying exacting scrutiny to PAC disclo-
sure obligations under state law). We will accordingly review
the Commission’s regulation 100.22(b) and its policy for
determining the major purpose of an organization under the
exacting scrutiny standard.

                              III

  Turning to the challenge of 11 C.F.R. § 100.22, Real Truth
contends that the regulation’s second definition of "expressly
advocating," as contained in subsection (b), is fatally broader
           THE REAL TRUTH ABOUT ABORTION, v. FEC               11
and more vague than the restrictions imposed on the defini-
tion of "expressly advocating" by 

&
n.52, which are codified in subsection (a).

   Regulation 100.22 defines "expressly advocating" as the
term is used in 2 U.S.C. § 431(17), which in turn defines "in-
dependent expenditure" as an expenditure by a person "ex-
pressly advocating the election or defeat of a clearly
identified candidate" and not made by or in coordination with
a candidate or political party. (Emphasis added). Subsection
(a) defines "expressly advocating" in the manner stated by the
Supreme Court in Buckley and thus includes communications
that use phrases "which in context can have no other reason-
able meaning than to urge the election or defeat" of a candi-
date," 11 C.F.R. § 100.22(a)—words such as "vote for,"
"elect," "defeat," or "reject," which are often referred to as the
express advocacy "magic words." See McConnell v. Fed.
Election Comm’n, 

, 126 (2003) (citing 

& n.52). Subsection (b), on the other hand,
defines "expressly advocating" more contextually, without
using the "magic words." This subsection, which is the sub-
ject of Real Truth’s challenge, provides in relevant part:

    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
12           THE REAL TRUTH ABOUT ABORTION, v. FEC
          (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).

                                   A

   Real Truth first challenges § 100.22(b) as facially over-
broad. The Commission’s approach of defining "expressly
advocating" with the magic words of Buckley in subsection
(a) and with their functional equivalent in subsection (b) was
upheld by the Supreme Court in considering a facial over-
breadth challenge to the BCRA, which included a provision
defining express advocacy for purposes of electioneering
communications. See 

(2003),
overruled in part by Citizens United, 

.2 In
rejecting the challenge, the McConnell Court noted that
Buckley’s narrow construction of the FECA to require express
advocacy was a function of the vagueness of the original stat-
utory definition of "expenditure," not an absolute First
Amendment imperative. 

Court accordingly
held that Congress could permissibly regulate not only com-
munications containing the "magic words" of Buckley, but
also communications that were "the functional equivalent" of
express advocacy. 

   Later, in Federal Election Commission v. Wisconsin Right
to Life, Inc., 

(2007), the Chief Justice’s control-
  2
    In 2001, we held that § 100.22(b) was unconstitutional because it
"shift[ed] the determination of what is express advocacy away from the
words in and of themselves to the unpredictability of audience interpreta-
tion." Va. Soc’y. for Human Life, Inc. v. Fed. Election Comm’n, 

, 392 (4th Cir. 2001) (internal quotation marks omitted). But this con-
clusion can no longer stand, in light of McConnell and Federal Election
Commission v. Wisconsin Right to Life, 

(2007).
           THE REAL TRUTH ABOUT ABORTION, v. FEC              13
ling opinion further elaborated on the meaning of McCon-
nell’s "functional equivalent" test. The Chief Justice held that
where an "ad is susceptible of no reasonable interpretation
other than as an appeal to vote for or against a specific candi-
date," it could be regulated in the same manner as express
advocacy. Wisconsin Right to 

. The Chief
Justice explicitly rejected the argument, raised by Justice
Scalia’s concurring opinion, that the only permissible test for
express advocacy is a magic words test:

    Justice Scalia concludes that "[i]f a permissible test
    short of the magic-words test existed, Buckley would
    surely have adopted it." We are not so sure. The
    question in Buckley was how a particular statutory
    provision could be construed to avoid vagueness
    concerns, not what the constitutional standard for
    clarity was in the abstract, divorced from specific
    statutory language. Buckley’s intermediate step of
    statutory construction on the way to its constitutional
    holding does not dictate a constitutional test. The
    Buckley Court’s "express advocacy restriction was
    an endpoint of statutory interpretation, not a first
    principle of constitutional law.

(internal quotation marks and citations omitted).

   Contrary to Real Truth’s assertions, Citizens United also
supports the Commission’s use of a functional equivalent test
in defining "express advocacy." In the course of striking down
FECA’s spending prohibitions on certain corporate election
expenditures, the Citizens United majority first considered
whether those regulations applied to the communications at
issue in the 

. Using Wisconsin Right
to Life’s "functional equivalent" test, the Court concluded that
one advertisement—Hillary: The Movie—qualified as the
functional equivalent of express advocacy because it was "in
essence . . . a feature-length negative advertisement that urges
viewers to vote against Senator [Hillary] Clinton for Presi-
14           THE REAL TRUTH ABOUT ABORTION, v. FEC
dent." Citizens 

. But more impor-
tantly for our decision, the Court also upheld BCRA’s
disclosure requirements for all electioneering communications
—including those that are not the functional equivalent of
express advocacy. 

reject Citizens United’s
contention that the disclosure requirements must be limited to
speech that is the functional equivalent of express advocacy").3
In this portion of the opinion, joined by eight Justices, the
Court explained that because disclosure "is a less restrictive
alternative to more comprehensive regulations of speech,"
mandatory disclosure requirements are constitutionally per-
missible even if ads contain no direct candidate advocacy and
"only pertain to a commercial transaction." 

man-
datory disclosure requirements are permissible when applied
to ads that merely mention a federal candidate, then applying
the same burden to ads that go further and are the functional
equivalent of express advocacy cannot automatically be
impermissible.

                                    B

   In addition to its overbreadth argument, Real Truth argues
that even if express advocacy is not limited to communica-
tions using Buckley’s magic words, § 100.22(b) is nonetheless
unconstitutionally vague. Here again, however, Real Truth’s
arguments run counter to an established Supreme Court prece-
  3
    We take the registration and organizational requirements for political
committees to be akin to the disclosure requirements such that, as a consti-
tutional matter, they can be regulated regardless of whether they contain
express advocacy or its functional equivalent. See Nat’l Org. for Marriage
v. McKee, 

, 54-55 & n.29 (1st Cir. 2011) (reasoning that
"Maine’s requirement that non-major-purpose PACs register with the
Commission" was "first and foremost a disclosure provision" and that "in
light of Citizens United . . . the distinction between issue discussion and
express advocacy has no place in First Amendment review of these sorts
of disclosure-oriented laws"); 

(noting
that after Citizens United, a group intending to make independent expendi-
tures would be subject only to PAC disclosure requirements if the FEC
determined that it was a PAC).
           THE REAL TRUTH ABOUT ABORTION, v. FEC             15
dent. The language of § 100.22(b) is consistent with the test
for the "functional equivalent of express advocacy" that was
adopted in Wisconsin Right to Life, a test that the controlling
opinion specifically stated was not "impermissibly vague."
Wisconsin Right to 

n.7. Moreover, just
as the "functional equivalent" test is objective, so too is the
similar test contained in § 100.22(b). See 

the
extent this evidence goes to WRTL’s subjective intent, it is
again irrelevant"); Express Advocacy; Independent Expendi-
tures; Corporate and Labor Organization Expenditures, 60
Fed. Reg. 35,292, 35,295 (July 6, 1995) ("[T]he subjective
intent of the speaker is not a relevant consideration").

   Both standards are also restrictive, in that they limit the
application of the disclosure requirements solely to those
communications that, in the estimation of any reasonable per-
son, would constitute advocacy. Although it is true that the
language of § 100.22(b) does not exactly mirror the functional
equivalent definition in Wisconsin Right to Life — e.g.,
§ 100.22(b) uses the word "suggestive" while Wisconsin Right
to Life used the word "susceptible"—the differences between
the two tests are not meaningful. Indeed, the test in
§ 100.22(b) is likely narrower than the one articulated in Wis-
consin Right to Life, since it requires a communication to
have an "electoral portion" that is "unmistakable" and "unam-
biguous." 11 C.F.R. § 100.22(b)(1).

   Real Truth relies heavily on our decision in North Carolina
Right to Life, Inc. v. Leake, 

(4th Cir. 2008),
where we held North Carolina’s campaign finance statute
unconstitutional, to argue that § 100.22(b) is likewise uncon-
stitutional. But our holding in Leake is materially distinguish-
able. First, we held there that the North Carolina statute was
unconstitutional because the terms of the statute that defined
express advocacy were "clearly susceptible to multiple inter-

(emphasis added) (internal
quotation marks omitted). In contrast, § 100.22(b) applies
solely to communications that "could only be interpreted by
16         THE REAL TRUTH ABOUT ABORTION, v. FEC
a reasonable person as containing advocacy of the election or
defeat of one or more clearly identified candidate(s)" 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."
(Emphasis added).

   Second, the North Carolina provision in Leake regulated all
electoral speech, including, potentially, issue advocacy. To
resolve whether such communications could constitutionally
be regulated, we articulated two requirements. First, because
the regulation covered electoral speech broadly defined, we
applied the requirement in Wisconsin Right to 

n.7, that it fulfill the statutory definition of "election-
eering communication" in 2 U.S.C. § 434(f)(3)(A)(i), which,
we noted, "refers to a ‘clearly identified candidate’ within
sixty days of a general election or thirty days of a primary

. Second, to narrow the alternative
definition of "express advocacy" in the North Carolina statute,
we relied on the functional-equivalent test developed in Wis-
consin Right to 

. 

tional equivalent test that we applied to narrow the North
Carolina definition of express advocacy was drawn from the
functional-equivalent test in Wisconsin Right to Life (which
itself was evaluating an electioneering communication provi-
sion), the Supreme Court has recognized use of the
functional-equivalent test to define "express advocacy" wher-
ever the term is used in the election laws. See, e.g., Citizens

. In contrast, in the case before us,
"express advocacy" is a component of an "independent expen-
diture," regulated under § 432(c)(1) and § 431(17) and thus
may be defined by applying the functional-equivalent test,
precisely as Regulation 100.22(b) has done. Because the
"electioneering      communications"         requirements       of
§ 434(f)(3)(A)(i) are not statutorily relevant to "independent
expenditures," we therefore need not apply those require-
ments applied in Leake when considering "express advocacy"
in the context of independent expenditures.
           THE REAL TRUTH ABOUT ABORTION, v. FEC              17
   Finally, our opinion in Leake emphasized the importance of
BCRA’s electioneering communication definition in minimiz-
ing the potential vagueness of campaign finance regulations.

. Importantly, however, the North Car-
olina statute at issue in Leake imposed a variety of restrictions
on campaign speech, including limits on acceptable contribu-
tions and expenditures. Again in contrast, following Citizens
United § 100.22(b) only implements disclosure requirements.
The Supreme Court has routinely recognized that because dis-
closure requirements occasion a lesser burden on speech, it is
constitutionally permissible to require disclosure for a wider
variety of speech than mere electioneering. See, e.g., United
States v. Harriss, 

, 625 (1954) (upholding disclo-
sure and registration requirements on lobbyists despite Con-
gress’ inability to ban lobbying itself); First Natn’l Bank of
Boston v. Bellotti, 

, 792 n.32 (1978) (observing
that "[i]dentification of the source of [ballot referendum]
advertising may be required as a means of disclosure, so that
the people will be able to evaluate the arguments to which
they are being subjected"). Citizens United only confirmed the
breadth of Congress’ power in this regard. See Citizens

("Even if the ads only pertain to a
commercial transaction, the public has an interest in knowing
who is speaking about a candidate shortly before an elec-
tion"); see also Doe v. Reed, 

, 2819–22 (2010)
(upholding disclosure requirement for petition signatories);
Natn’l Org. for Marriage v. McKee, 

, 70 (1st Cir.
2011) (holding that state "express advocacy" definition with-
out an "electioneering communication" limitation was not
vague).

                               C

   Real Truth advances several other reasons why it believes
§ 100.22(b) is impermissibly vague, but each merits only brief
discussion.

  First, Real Truth argues that the regulation applies a bal-
ancing test similar to one in 11 C.F.R. § 114.15 (regulating
18         THE REAL TRUTH ABOUT ABORTION, v. FEC
corporate and labor organization funds expended for certain
electioneering communications), which was invalidated in
Citizens United. The two provisions are, however, substan-
tially distinguishable. The Citizens United Court described
§ 114.15 as a "two-part, 11-factor balancing test," making it
significantly more complicated on its face than § 100.22(b).
Citizens 

. The Court also emphasized
the censorious nature of § 114.15, which, given its complex-
ity, required that regulated entities "either refrain from speak-
ing or ask the [Commission] to issue an advisory opinion
approving of the political speech in question." 

100.22(b) does not restrain speech; it only implicates the
requirement for disclosing specified information. The
Supreme Court’s criticism of § 114.15 can hardly cast doubt
on § 100.22(b).

   Second, Real Truth asserts that because § 100.22 considers
"proximity to the election" as a factor, it is inconsistent with
Wisconsin Right to Life. Again, we disagree. Wisconsin Right
to Life simply held that the timing of speech cannot be used
as a proxy for a speaker’s 

("To the
extent th[e] evidence [regarding the timing of WRTL’s ads]
goes to WRTL’s subjective intent, it is again irrelevant"). As
discussed above, however, subjective intent is already an
impermissible consideration under both tests. Moreover, as
Wisconsin Right to Life noted, by virtue of their time-sensitive
statutory definition, "[e]very ad covered by [the electioneer-
ing communication regulations] will . . . air just before a pri-
mary or general election." 

timing
with respect to electioneering communications would prove
redundant, a limited reference to whether, for example, an ad
airs in an election year, would actually help limit the number
of communications that are considered independent expendi-
tures.

  Third, Real Truth suggests that the entirety of § 100.22 is
vague because the regulation contains certain words, such as
"suggestive" and "electoral portion," which are facially vague.
           THE REAL TRUTH ABOUT ABORTION, v. FEC              19
Regardless, however, of whether words might be insuffi-
ciently clear when standing alone, we cannot conclude that
they render the statute vague when considered in their con-
text. The complete phrase in which these words appear—
"[t]he electoral portion of the communication is unmistakable,
unambiguous, and suggestive of only one meaning"—is
essentially a more stringent version of the relevant language
from Wisconsin Right to Life’s "functional equivalent" test,
which requires that a communication be "susceptible of no
[other] reasonable interpretation." If, as the Supreme Court
has held, the test in Wisconsin Right to Life is not vague, then
neither is § 100.22(b).

    Fourth and finally, Real Truth argues that § 100.22(b) is
vague because the district court and the Commission dis-
agreed as to whether Real Truth’s "Change" ad was the func-
tional equivalent of express advocacy. But this fact proves
little because cases that fall close to the line will inevitably
arise when applying § 100.22(b). This kind of difficulty is
simply inherent in any kind of standards-based test. Cf.
United States v. Williams, 

, 306 (2008) ("Close
cases can be imagined under virtually any statute. The prob-
lem that poses is [not] addressed . . . by the doctrine of vague-
ness"); United States v. Wurzbach, 

, 399 (1930)
(holding that the Federal Corrupt Practices Act was not
facially vague because "[w]herever the law draws a line there
will be cases very near each other on opposite sides"). If any-
thing, the disagreement to which Real Truth alludes confirms
the Commission’s judgment that "Change" does not meet the
requirements of § 100.22(b), since both the Commission and
the district court are rational minds and § 100.22 applies only
when reasonable people could not disagree about a communi-
cation’s status.

   At bottom, we conclude that § 100.22(b) is constitutional,
facially and as applied to Real Truth’s intended advertise-
ments. The regulation is consistent with the test developed in
Wisconsin Right to Life and is not unduly vague.
20           THE REAL TRUTH ABOUT ABORTION, v. FEC
                                    IV

   Finally, Real Truth contends that the Commission’s policy
for applying the "major purpose" test in determining whether
an organization is a PAC is unconstitutional because it
"weigh[s] various vague and overbroad factors with undis-
closed weight." It maintains that the only permissible methods
of analyzing PAC status are (1) examining an organization’s
expenditures to see if campaign-related speech amounts to
50% of all expenditures; or (2) reviewing "the organization’s
central purpose revealed by its organic documents."4

   The FECA defines a "political committee" or PAC, as we
have called it, as any "committee, club, association, or other
group of persons" that makes more than $1,000 in political
expenditures or receives more than $1,000 in contributions
during a calendar year. 2 U.S.C. § 431(4)(a). The terms "ex-
penditures" and "contributions" are in turn defined to encom-
pass any spending or fundraising "for the purpose of
influencing any election for Federal office." 

  In Buckley, the Supreme Court concluded that defining
PACs "only in terms of amounts of annual ‘contributions’ and
‘expenditures’" might produce vagueness issues. Accordingly,
  4
    The Commission challenges our right to review this issue, arguing that
the 2007 Federal Register Notice announcing its decision not to adopt a
regulatory definition of "political committee" is not a "final agency action"
under the Administrative Procedure Act, and therefore not subject to judi-
cial review. See Bennett v. Spear, 

(1997). But we do not take
Real Truth’s challenge as one limited to the 2007 Notice itself. Rather,
Real Truth cites the 2007 Notice and the 2004 Notice of Proposed Rule-
making because those documents explain the Commission’s PAC-status
enforcement policy. What Real Truth objects to is the Commission’s deci-
sion to adopt a multi-factored standard for determining when an organiza-
tion qualifies for PAC status. That choice is undoubtedly a "consummation
of the agency’s decisionmaking process" that can determine a party’s
rights and obligations, namely, the obligations of PAC status. 

(internal quotation marks omitted).
           THE REAL TRUTH ABOUT ABORTION, v. FEC             21
the Court limited the applicability of FECA’s PAC require-
ments to organizations controlled by a candidate or whose
"major purpose" is the nomination or election of candidates.

. An organization that is not controlled
by a candidate must therefore register as a PAC if its contri-
butions or expenditures exceed $1,000 and its "major pur-
pose" is the nomination or election of a federal candidate.

   Following Buckley, the Commission adopted a policy of
determining PAC status on a case-by-case basis. See Political
Committee Status, 72 Fed. Reg. 5595, 5596–97 (Feb. 7, 2007)
(the "2007 Notice"). Under this approach, the Commission
first considers a group’s political activities, such as spending
on a particular electoral or issue-advocacy campaign, see 

then it evaluates an organization’s "major
purpose," as revealed by that group’s public statements, fun-
draising appeals, government filings, and organizational docu-
ments, see 

the Commission published a Notice of Pro-
posed Rulemaking that, among other things, requested com-
ments on whether the Commission should adopt a regulatory
definition of "political committee" or PAC. See Political
Committee Status, 69 Fed. Reg. 11,736, 11,743–49 (Mar. 11,
2004). After receiving public comments and holding several
hearings, the Commission issued a Final Rule stating that it
would not alter its existing method of determining PAC sta-
tus. See Political Committee Status, Definition of Contribu-
tion, and Allocation for Separate Segregated Funds and
Nonconnected Committees, 69 Fed. Reg. 68,056, 68,056-63
(Nov. 23, 2004).

   When the Commission’s decision not to adopt a statutory
definition of a PAC was challenged in court, the court
rejected the plaintiffs’ request to require the Commission to
commence a new rulemaking. It found, however, that the
Commission had "failed to present a reasoned explanation for
its decision" to regulate § 527 organizations through case-by-
22          THE REAL TRUTH ABOUT ABORTION, v. FEC
case adjudication rather than a rulemaking. See Shays v. Fed.
Election Comm’n, 

, 117 (D.D.C. 2006)
("Shays I"). Therefore, it remanded the case to the Commis-
sion "to explain its decision or institute a new rulemaking."

Commission responded in February 2007 by publish-
ing in the Federal Register a "Supplemental Explanation and
Justification," as part of the 2007 Notice, where it gave notice
of its decision not to promulgate a new definition of "political
committee" and discussed the reasons it would not do so but
instead would continue to apply a case-by-case approach. 72
Fed. Reg. 5596–97. The Commission stated 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." 

2007 Notice also "explain[ed] the framework for establishing
political committee status under FECA" and "discusse[d] sev-
eral recently resolved administrative matters that provide con-
siderable guidance to all organizations regarding . . . political
committee status." 

Buckley did create the major purpose test, it did
not mandate a particular methodology for determining an
organization’s major purpose. And thus the Commission was
free to administer FECA political committee regulations
either through categorical rules or through individualized
adjudications. See, e.g., SEC v. Chenery Corp., 

,
203 (1947) ("[T]he choice made between proceeding by gen-
eral rule or by individual . . . litigation is one that lies primar-
ily in the informed discretion of the administrative agency").

   We conclude that the Commission had good and legal rea-
sons for taking the approach it did. The determination of
whether the election or defeat of federal candidates for office
is the major purpose of an organization, and not simply a
major purpose, is inherently a comparative task, and in most
instances it will require weighing the importance of some of
           THE REAL TRUTH ABOUT ABORTION, v. FEC              23
a group’s activities against others. As the district court noted
in upholding the case-by-case approach in Shays v. Federal
Election Commission, 

(D.D.C. 2007)
("Shays II"),

    an organization . . . may engage in many non-
    electoral activities so that determining its major pur-
    pose requires a very close examination of various
    activities and statements. Or an organization may be
    engaging in substantial amounts of both federal and
    non-federal electoral activity, again requiring a
    detailed analysis of its various 

.

   The necessity of a contextual inquiry is supported by judi-
cial decisions applying the major purpose test, which have
used the same fact-intensive analysis that the Commission has
adopted. See, e.g., Fed. Election Comm’n v. Malenick, 310 F.
Supp. 2d 230, 234–37 (D.D.C. 2004), rev’d in part, No. Civ.
A. 02-1237 (JR) 

(D.D.C. Mar. 7, 2005);
Fed. Election Comm’n v. GOPAC, Inc., 

,
859, 864–66 (D.D.C. 1996); see also Shays II, 

at 29–31 (holding that the Commission’s choice to regulate
§ 527 groups by determining whether they qualified as politi-
cal action committees on a case-by-case basis was neither
arbitrary nor capricious).

  Real Truth’s argument that the major purpose test requires
a bright-line, two-factor test relies heavily on Massachusetts
Citizens for 

, and 

.
But neither of these cases can bear the weight Real Truth
ascribes to it. In Massachusetts Citizens for Life, the Court
suggested in dicta (inasmuch as Massachusetts Citizens for
Life was not a PAC) that an organization’s independent
spending could "become so extensive that the organization’s
major purpose may be regarded as campaign activity." Massa-
chusetts Citizens for 

. This statement
24          THE REAL TRUTH ABOUT ABORTION, v. FEC
indicates that the amount of independent spending is a rele-
vant factor in determining PAC status, but it does not imply
that the Commission may only consider spending. Indeed, the
Court in Massachusetts Citizens for Life implicitly endorsed
the Commission’s approach when it examined the entire
record to conclude that the plaintiff did not satisfy the "major
purpose" test.

  And Real Truth’s reliance on Leake is similarly misplaced.
In Leake, we described the major purpose test as follows:

      Basically, if an organization explicitly states, in its
      bylaws or elsewhere, that influencing elections is its
      primary objective, or if the organization spends the
      majority of its money on supporting or opposing
      candidates, that organization is under "fair warning"
      that it may fall within the ambit of Buckley’s 

. Like the dicta in Massachusetts Citizens for
Life, this statement suggests that expenditure ratios and orga-
nizational documents are important considerations when
determining whether an organization qualifies as a PAC. The
case does not, however, make consideration of any other fac-
tors improper. In fact, we specifically declined to determine
whether the very same bright-line, two-factor test urged by
Real Truth was the only permissible manner in which to apply
Buckley’s major purpose requirement. 

   Thus, although cases since Buckley have indicated that cer-
tain facts may be particularly relevant when assessing an
organization’s major purpose, those decisions do not foreclose
the Commission from using a more comprehensive methodol-
ogy.

  Despite Real Truth’s protestations, we see little risk that the
Commission’s existing major purpose test will chill political
expression.5 In the First Amendment context, a statute may be
  5
    Real Truth does not assert that the major purpose test is unconstitu-
tional as applied to it. Nor could it, since the Commission has never
             THE REAL TRUTH ABOUT ABORTION, v. FEC                      25
found overbroad if a "substantial number of [the statute’s]
applications are unconstitutional, judged in relation to the
statute’s plainly legitimate sweep." United States v. Stevens,

, 1587 (2010) (quoting Wash. State Grange v.
Wash. State Republican Party, 

, 449 n. 6
(2008)). Real Truth has failed to explain why the Commis-
sion’s test would prevent any party from speaking, especially
in view of the fact that the application of the test to find that
an organization is a PAC would subject the organization only
to "minimal" reporting and organizational obligations. See

.

   We should note that the class of speakers who would be
subject to FECA’s PAC regulations would be significantly
smaller than the totality of groups that speak on political sub-
jects. In most cases the Commission would only begin to con-
sider a group’s "major purpose" after confirming that the
group had either made $1,000 in expenditures or received
more than $1,000 in contributions. See 72 Fed. Reg. at
5603–04. The expenditure or contribution threshold means
that some groups whose "major purpose" was indisputably the
nomination or election of federal candidates would not be
designated PACs. Cf. Shays II, 

at 26–27 (crit-
icizing the Commission’s method for determining PAC status
as too narrow).

   And even if an organization were to find itself subject to a
major-purpose investigation, that investigation would not nec-
essarily be an intrusive one. Much of the information the
Commission would consider would already be available in
that organization’s government filings or public statements. If
additional information were required, the Commission’s Fed-
eral Register notices, advisory opinions, and other policy doc-

claimed that Real Truth is a PAC. Real Truth also does not specifically
identify any instances in which, in its opinion, the Commission incorrectly
categorized an organization as a PAC.
26        THE REAL TRUTH ABOUT ABORTION, v. FEC
uments would provide the organization with ample guidance
as to the criteria the Commission might consider. In this
respect, the Commission’s test is again distinguishable from
the test we struck down in Leake, which "provide[d] abso-
lutely no direction as to how North Carolina determines an
organization’s ‘major purpose’" and was implemented using
"unannounced 

.

   At bottom, we conclude that the Commission, in its policy,
adopted a sensible approach to determining whether an orga-
nization qualifies for PAC status. And more importantly the
Commission’s multi-factor major-purpose test is consistent
with Supreme Court precedent and does not unlawfully deter
protected speech. Accordingly, we find the policy constitu-
tional.

                                                AFFIRMED