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  • FEC Record: Litigation

Independence Institute v. FEC (1:14-cv-01500) (District court)

November 9, 2016

On November 4, 2016, the U.S. District Court for the District of Columbia rejected the Independence Institute's challenge to the Bipartisan Campaign Reform Act's electioneering communication provisions, and granted the FEC's motion for summary judgment.


The Bipartisan Campaign Reform Act (BCRA) defines an "electioneering communication" as any broadcast, cable or satellite communication that refers to a clearly identified federal candidate, is made within 30 days of a primary election or 60 days of a general, special or runoff election, and is targeted to the relevant electorate. 52 U.S.C. § 30104(f)(3)(A)(i). The statute provides that persons making disbursements that aggregate more than $10,000 per year must file a report with the Commission disclosing the names and addresses of all contributors who contributed more than $1,000. 52 U.S.C. § 30104(f)(1), (2)(A). Commission regulations provide that when a corporation finances an electioneering communication, only the sources of donations to the corporation made "for the purpose of further electioneering communications" must be disclosed. 11 CFR 104.20(c)(9).

Independence Institute (the "Institute") is a 501(c)(3) tax-exempt organization based in Colorado. In the 60 days preceding the 2014 general election, the Institute sought to run a radio advertisement that urged Coloradoans to call two federal officeholders (one of whom was a candidate in the 2014 election) to express support for certain legislation. The Institute planned to spend at least $10,000 on the advertisement that would have reached at least 50,000 persons in the Denver metropolitan area.

On September 2, 2014, the Institute filed suit invoking BCRA's special judicial review provision, 52 U.S.C. § 30110 note, and requesting a three-judge court to hear its challenge to BCRA's definition of "electioneering communication" and related disclosure requirements. The Institute contended that BCRA's requirements are overbroad as applied to its proposed radio advertisement and violate the First Amendment because the advertisement is "genuine issue advocacy." The Institute also argued that BCRA's large-donor disclosure requirement cannot constitutionally apply to advertisements financed by a 501(c)(3) tax-exempt organization.

On October 6, 2014, the district court found the plaintiff's challenge to be foreclosed by Supreme Court precedent, principally by Citizens United v. FEC, concluded that a three-judge court was not warranted, and dismissed the case in its entirety. The plaintiff appealed and on March 1, 2016, a panel of the U.S. Court of Appeals for the District of Columbia Circuit reversed the district court's decision not to convene a three-judge court and remanded the case with instructions to convene a three-judge district court to consider the merits of the plaintiff's constitutional challenge.

District court decision

Mootness. Before addressing the merits, the court first considered its jurisdiction to decide the case. The court explained that it lacks jurisdiction under Article III of the Constitution to decide a lawsuit that has become moot and thus no longer presents a case or controversy. The question of mootness had arisen in this case, the court explained, because the Institute's complaint sought only to run a single advertisement in the run up to the 2014 general election when one of the federal officeholders mentioned in its advertisement was up for reelection. Become the 2014 election has long since passed and the identified officeholder is no longer a candidate, the proposed advertisement underlying the Institute's complaint is no longer subject to the challenged disclosure requirement. Nevertheless, the court proceeded to evaluate whether the Institute's claims fall within the “capable of repetition yet evading review” exception to mootness. Ultimately, the court concluded that this case is not moot, because the other officeholder referenced in the Institute's proposed advertisement was up for reelection this fall, and the Institute made clear at oral argument that it still desired to run the advertisement during the 2016 general election cycle.

First Amendment. In examining the Institute's First Amendment argument, the court first noted that BCRA's disclosure provision does not regulate issue advocacy per se, but only communications that clearly identify a federal candidate within a certain time period before a federal election. The court pointed out options available to the Institute that would not fall within the disclosure provisions: running the advertisement outside of the electioneering window; running the advertisement during the window without identifying a candidate for federal office; or accepting donations less than $1,000 that would not trigger the disclosure requirements.

On remand, the district court noted that the Supreme Court twice upheld the electioneering communication disclosure provision and rejected an issue-centered exception. In McConnell v. FEC, the Court rejected a facial constitutional challenge to BCRA's electioneering communication disclosure requirement and refused to impose a distinction between express advocacy and issue advocacy for purposes of that disclosure requirement. And in Citizens United v. FEC, the Supreme Court explained that its holding in Wisconsin Right to Life v. FEC, which limited certain restrictions on independent expenditures to express advocacy and its functional equivalent, could not be imported into BCRA's disclosure scheme since "disclosure is a less restrictive alternative to more comprehensive regulations of speech."

According to the district court, precedent "already largely, if not completely, closed the door" to the Institute's argument that the First Amendment requires the disclosure provision to treat issue advocacy differently from express advocacy. "...[The] First Amendment is not so tight-fisted as to permit large-donor disclosure only when the speaker invokes magic words of explicit endorsement. That would make the constitutional balancing of interests turn on form not substance." The court found that not only would it be unworkable to have the Commission make the distinction, but under McConnell and Citizens United, "it is the tying of an identified candidate to an issue or message that justifies the [law's] tailored disclosure requirement because that linkage gives rise to the voting public's informational interest in knowing 'who is speaking about a candidate shortly before an election.'"

The court pointed out that the Supreme Court has already held the electioneering communications disclosure rule passes the "exacting scrutiny" required for campaign finance disclosure requirements. Under this test, there must be a substantial relation between the disclosure requirement and a sufficiently important governmental interest. Quoting McConnell, the court concluded that the disclosure rule "advances substantial and important governmental interests in 'providing the electorate with information, deterring actual corruption and avoiding any appearance thereof, and gathering the data necessary to enforce more substantive electioneering restrictions.'" The court found that the Institute's advertisement triggers the same informational interests because it links a federal candidate to a political issue and solicits voters to press the candidate for his position in the run up to an election. "Providing the electorate with information about the source of the advertisement will allow voters to evaluate the message more critically and to more fairly determine the weight it should carry in their electoral judgments." The court further pointed out the disclosure regulation imposes no ceiling on campaign related activity and does not prevent anyone from speaking. Disclosure is also required only for donors who contribute $1,000 or more for the specific purpose of supporting the advertisement.

Finally, the court rejected the Institute's argument that its tax-exempt status requires it to be exempt from the electioneering communications disclosure provisions. The court concluded that the First Amendment permits BCRA's electioneering communications disclosure provisions which regulate speech based on references to electoral candidates and not on the speaker's identity or taxpaying status.