Brown, et al. v. FEC challenges application of electioneering communications statute to commercial advertisements (D.D.C. 19-1021)

On April 11, 2019, Leigh Brown and Leigh Brown & Associates (plaintiffs) filed suit against the Commission. Brown is a candidate for the U.S. House of Representatives in the May 14, 2019 special primary election in North Carolina’s ninth congressional district. Plaintiffs’ amended complaint alleges that that the application of the Federal Election Campaign Act’s (the Act’s) definition of electioneering communication and its implementing regulations to their current and proposed commercial radio advertisements for Brown’s business, Leigh Brown & Associates, is in violation of the First and Fifth Amendments of the Constitution. Plaintiffs also ask the Court to avoid the constitutional problems they allege by finding that the advertisements did not refer to a clearly identified candidate and therefore were not electioneering communications.

Background

The Act and Commission regulations define electioneering communications as any broadcast, cable, or satellite communication that (1) refers to a clearly identified federal candidate; (2) is publicly distributed within 30 days before a primary election or a convention or caucus of a political party or 60 days before a general election; and (3) is targeted to the relevant electorate. 52 U.S.C. § 30104(f)(3)(A)(i); 11 CFR 100.29. The electioneering communication provisions include requirements for disclaimers and disclosure reports.

On April 11, 2019, the Commission considered an advisory opinion request from Leigh Brown asking the Commission to determine whether radio ads promoting her business to be aired during the pre-primary period constituted electioneering communications or were exempt from the definition. The Commission was unable to render an opinion by the required four affirmative votes and concluded its consideration of the request.

Complaint

Plaintiffs’ amended complaint alleges that the electioneering communication provisions are unconstitutional as applied to the commercial advertisements. Plaintiffs further argue that the court should find that the advertisements do not contain references to any clearly identified candidate for federal office and thus do not constitute electioneering communications subject to the Act.

Plaintiffs seek a declaratory judgment that 52 U.S.C. § 30104(f)(3)(A)(i) and its implementing regulations are unconstitutional as applied, and preliminary and permanent injunctions enjoining the Commission from enforcing those provisions against plaintiffs.

Plaintiffs initially filed a motion for temporary restraining order, which the district court denied. Plaintiffs then filed a motion for preliminary injunction, which was heard by the court on April 26, 2019.

Resources

• Brown, et al. v. FEC litigation page