On October 6, 2014, the U.S. District Court for the District of Columbia dismissed a suit brought by the Independence Institute that challenged the statutory provisions governing electioneering communications. The plaintiff claimed the definition of electioneering communication is overbroad and the associated disclosure requirements are unconstitutionally burdensome. The court found the plaintiff’s claims to be clearly foreclosed by the U.S. Supreme Court decision in Citizens United v. Federal Election Commission, and ordered that judgment be entered for the Commission and dismissed the case.
On September 2, 2014, the Independence Institute, a 501(c)(3) tax-exempt organization in Colorado, asked for a three-judge court to hear its challenge to the Bipartisan Campaign Reform Act’s (BCRA) regulation of electioneering communications. 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) (formerly 2 U.S.C. §434(f)(3)(A)(i)). The statute also requires certain disclosures concerning the sources and financing of electioneering communications. 52 U.S.C. §30104(f)(1), (2)(A) (formerly 2 U.S.C. §434(f)(1), (2)(A)). Under the Commission’s regulations, when a corporation makes disbursements for an electioneering communication aggregating more than $10,000 per year, it must file a report with the Commission, which includes disclosure of the names and addresses of all contributors who contributed more than $1,000 to the corporation for the purpose of furthering electioneering communications. 11 CFR 104.20(c)(9).
In its suit, the Independence Institute said it planned to run a 60-second radio ad within 60 days of the general election that would mention a federal candidate. While the group planned to raise funds specifically for this advertisement, it did not wish to disclose its donors.
The plaintiff asked the court to declare BCRA’s definition of electioneering communication (52 U.S.C. §30104(f)(3)(A)(i)) and associated reporting requirements at 52 U.S.C. §30104(f)(1)-(2) overbroad as applied to its proposed advertisements.
In the interest of expediting the case, both parties agreed that the court would consider plaintiff’s motion for a preliminary injunction as a motion for summary judgment and accordingly issue a final decision on the merits of the case in deciding that motion. The court found the plaintiff’s case to be foreclosed by clear Supreme Court precedent, principally by Citizens United v. Federal Election Commission. The court denied the plaintiff’s requests for a three-judge court and a preliminary injunction, ordered that judgment be entered for the Commission, and dismissed the case in its entirety.
In its 2010 Citizens United decision, the Supreme Court invalidated the prohibition on corporate and union expenditures, but upheld BCRA’s disclosure requirements for electioneering communications. The Independence Institute claimed the disclosure requirements are overbroad as applied to its proposed radio ad because the advertisement is genuine issue advocacy as opposed to express advocacy or its functional equivalent. The district court explained that the Citizens United decision rejected the notion that disclosure requirements must be limited to express advocacy or its functional equivalent, and concluded that that holding encompasses the facts in this case.
The Independence Institute also tried to distinguish its ad from an ad at issue in Citizens United, which had a pejorative tone when speaking about a federal candidate. The court found this argument unconvincing, stating that the decision in Citizens United does not suggest that the pejorative nature of Citizens United’s advertisement was in any way important to the Supreme Court’s conclusion regarding the constitutionality of the disclosure requirements.
On October 8, 2014, the Independence Institute filed a notice of appeal with the U.S. Court of Appeals for the District of Columbia Circuit.
U.S. District Court for the District of Columbia: Case 1:14-cv-01500-CKK