Independence Institute v. FEC (New)

On September 2, 2014, the Independence Institute filed suit against the Commission in the U.S. District Court for the District of Columbia, challenging the statutory provisions governing electioneering communications. Specifically, the plaintiff claims the definition of electioneering communication is overbroad and the associated disclosure requirements are unconstitutionally burdensome.

Background
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) (formerly 2 U.S.C. §434(f)(3)(A)(i)). Every person who makes disbursements for an electioneering communication aggregating more than $10,000 per year must file a report with the Commission. If the disbursement is paid out of a segregated account consisting of funds contributed by individuals directly to the account for electioneering communications, then the report must disclose the names and addresses of all those who contributed an aggregate of $1,000 or more within a certain time period to the account. If the disbursements were not made from a segregated account, then the report must disclose the names and addresses of all contributors who contributed more than $1,000 within a certain time period to the person making the disbursement. 52 U.S.C. §30104(f)(1)-(2) (formerly 2 U.S.C. §434(f)(1)-(2)). Commission regulations further provide that if the disbursements were made by a corporation or labor union, the organization must identify the name and address of each person who contributed an aggregate of $1,000 or more over the course of the previous 12 to 24 months “for the purpose of furthering electioneering communications.” 11 CFR 104.20(c)(9).

Independence Institute is a 501(c)(3) non-profit corporation organized in Colorado that focuses on taxation, education, healthcare and justice policy issues. It plans to pay for a 60-second radio ad about federal sentencing guidelines that will mention Colorado Senators Mark Udall and Michael Bennet and will air in Colorado within 60 days of the general election. Since Sen. Udall is a candidate for re-election this November, the Independence Institute believes its ad may qualify as an electioneering communication.

The Independence Institute says it plans to raise funds specifically for this advertisement but does not wish to disclose its donors.

Complaint
In the complaint, the plaintiff states it is worried that failure to disclose the group’s donors may result in enforcement action from the Commission. The Independence Institute claims that the “regulation of electioneering communications chills discussion of public policy issues by forcing would-be speakers — including the Independence Institute — to comply with unconstitutional regulatory burdens should it merely mention a candidate for office, even if its speech neither promotes nor disparages that candidate.”

The complaint asks for a three-judge court to hear the challenge against the BCRA’s regulation of electioneering communications. The Independence Institute asks the court to declare that BCRA’s definition of electioneering communication (52 U.S.C. §30104(f)(3)(A)(i)), and the reporting requirements at 52 U.S.C. §30104(f)(1)-(2), are overbroad as applied to its proposed advertisements. The plaintiff also asks the court for a preliminary injunction to enjoin the Commission from enforcing 52 U.S.C. §30104(f).

U.S. District Court for the District of Columbia: Case 1:14-cv-01500

Resources:

• Independence Institute v. FEC litigation page