On August 10, 2012, the Hispanic Leadership Fund, Inc. (“HLF”), a Virginia-based 501(c)(4) non-profit organization, filed a complaint in the U.S. District Court for the Eastern District of Virginia. The case is a pre-enforcement, as-applied challenge to the FEC’s application of the “clearly identified federal candidate” provision at 2 U.S.C. § 431(18), in the context of disclosure requirements for “electioneering communications,” 2 U.S.C. §434(f). HLF also filed a Motion for Preliminary and Permanent Injunction.
On July 30, 2012, HLF filed a similar complaint and motion in the U.S. District Court for the Southern District of Iowa. On August 9, 2012, that court dismissed the case for improper venue.
Under the Federal Election Campaign Act (the Act) and Commission regulations, an electioneering communication is any broadcast, cable or satellite communication that 1) references a clearly identified candidate for federal office; 2) is publicly distributed within certain time periods before an election; and 3) is targeted to the relevant electorate. 2 U.S.C. § 434(f)(3)(A)(i); 11 CFR 100.29(a). A candidate is “clearly identified” if the candidate’s name, nickname, photograph, or drawing appears in the communication, or the identity of the candidate is otherwise apparent through an unambiguous reference such as “the President,” “your Congressman,” or “the incumbent,” or through an unambiguous reference to his or her status as a candidate such as “the Democratic presidential nominee” or “the Republican candidate for Senate in the State of Georgia.” 11 CFR 100.29(b)(2). See also 2 U.S.C. § 431(18); 11 CFR 100.17.
On April 18, 2012, American Future Fund (“AFF”) sought an advisory opinion asking whether eight proposed television advertisements referenced “clearly identified federal candidate[s]” under the Act. In its response (Advisory Opinion 2012-19), the Commission determined that one of AFF’s proposed advertisements did not refer to a clearly identified Federal candidate, but that the two advertisements referencing “Obamacare” and “Romneycare” did reference clearly identified Federal candidates and would be electioneering communications. The Commission could not approve a response by four affirmative votes regarding the other five proposed advertisements. These advertisements used terms such as “this administration,” and “the White House” (with visual depictions of the White House), and one also included President Obama’s voice.
HLF’s complaint states that it would like to produce advertisements similar to those proposed by AFF, but that the advertisements are not being produced due to the FEC’s “failure to correctly apply [the Act] and controlling precedent” to the five advertisements in the AFF advisory opinion request as to which the Commission did not approve an advisory opinion. HLF states that its proposed advertisements refer to “the administration” or “this administration;” use the phrase “the White House” or contain images of the White House; and that one proposed advertisement contains an audio clip of President Obama speaking. HLF claims that its proposed advertisements are not electioneering communications referring to clearly identified candidates, but are issue advocacy communications under FEC v. Wisconsin Right to Life, 551 U.S. 449 (2007), that “address substantive policy issues facing the federal government.”
HLF claims that the Supreme Court’s decision in Buckley v. Valeo, 424 U.S. 1 (1976) provided a specific definition of “clearly identified federal candidate,” but that the FEC failed to apply this definition in the AFF advisory opinion. As a result, HLF claims that the FEC’s pre-enforcement application of the “clearly identified federal candidate” standard to similar proposed advertisements is inconsistent with law and burdens its constitutional rights.
HLF seeks a permanent injunction against the FEC’s enforcement of 2 U.S.C § 431(18), 2 U.S.C. § 434(f), 11 CFR 100.29(a) and 11 CFR 100.29(b)(2) as applied to its proposed activities and a declaration that such enforcement would be unlawful, as well as an award of nominal damages, costs and attorneys fees.