IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

INDEPENDENCE INSTITUTE, 

a Colorado nonprofit corporation,

Plaintiff,

v.

FEDERAL ELECTION COMMISSION,

Defendant.

Case No. 1:14-cv-1500-CKK-PAM-APM

INDEPENDENCE INSTITUTE’S CONSOLIDATED 

OPPOSITION TO DEFENDANT’S 

CROSS-MOTION FOR SUMMARY JUDGMENT

AND REPLY IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT

Dated: August 12, 2016

Allen Dickerson (D.C. Bar No. 1003781)

Tyler Martinez (D.C. Bar No. 1022937) 

Center for Competitive Politics

124 S. West Street, Suite 201

Alexandria, Virginia 22314

Telephone: 703.894.6800

Facsimile: 703.894.6811

adickerson@campaignfreedom.org

tmartinez@campaignfreedom.org

Counsel for Plaintiff 

Independence Institute

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i

Table of Contents

Table of Authorities....................................................................................................................... iii

Introduction......................................................................................................................................1

Argument .........................................................................................................................................1

I. The Independence Institute differs sharply from Citizens United. ................................1

a. The FEC recycles its argument—already rejected by the D.C. Circuit—

that McConnell and Citizens United foreclose the Institute’s challenge. ................1

b. The difference between the Institute’s tax status and that of Citizens United 

is material.................................................................................................................2

i. As a § 501(c)(4) organization, Citizens United could engage in politics, 

something the Institute is barred from doing under § 501(c)(3)..................2

ii. Section 501(c)(3) organizations that violate the political activity 

prohibition face substantial penalties...........................................................4

iii. Tax law and Supreme Court precedent protect donors to § 501(c)(3) 

organizations to a greater extent than donors § 501(c)(4) groups. ..............6

iv. The out-of-circuit authority supplied by the Commission and Amici

is inapposite. ................................................................................................7

II. Not all speech that mentions a candidate is electioneering, and the Institute’s ad 

is far from any gray area, for it is entirely focused on a legislative issue....................11

a. Express advocacy is a subset of “unambiguously campaign related” speech. ......11

III. The government cannot carry its burden under exacting scrutiny in this narrow, 

as-applied challenge.....................................................................................................14

a. The FEC has no legitimate interest in issue speech that in no way 

electioneers. ...........................................................................................................15

b. The harm imposed upon the Institute outweighs the FEC’s interest in 

disclosure for issue advocacy not related to any candidacy or election. ...............19

i. The harm of public disclosure goes beyond threats, harassment, or 

reprisals. .....................................................................................................19

ii. The alternative “separate bank account” to protect general donor 

disclosure is burdensome. ..........................................................................21

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IV. Granting summary judgment to the Institute preserves the vast majority of 

regulation and disclosure for electioneering communications while providing 

narrow, as-applied relief for the Institute’s issue advocacy.........................................22

a. Congress provided for a backup definition (PASO) in case the scope of 

“electioneering communications” regulation violated the First Amendment........22

b. The FEC can, and has, implemented as-applied rulings distinguishing 

among different forms of speech and different types of speakers. ........................23

Conclusion .....................................................................................................................................25

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Table of Authorities

Cases

Am. Meat Inst. v. United States Dep’t of Agric., 

760 F.3d 18 (D.C. Cir. 2014).............................................................................................16

Buckley v. Valeo, 

424 U.S. 1 (1976)............................................................................... 6-7, 11, 13, 14, 17, 20

Buckley v. Valeo, 

519 F.2d 821 (D.C. Cir. 1975).....................................................................................13, 14

Ctr. for Competitive Politics v. Harris, 

136 S. Ct. 480 (U.S. 2015).................................................................................................20

Ctr. for Competitive Politics v. Harris, 

784 F.3d 1307 (9th Cir. 2015) .....................................................................................20, 21

Ctr. for Individual Freedom v. Madigan, 

697 F.3d 464 (7th Cir. 2012) .......................................................................................10, 23

Ctr. for Individual Freedom v. Tennant, 

706 F.3d 270 (4th Cir. 2013) .............................................................................9, 10, 18, 19

Citizens United v. FEC, 

558 U.S. 310 (2010)...............................................1, 2, 3, 13, 15, 16, 18, 19, 21, 23, 24, 25

Citizens United v. FEC, 

530 F. Supp. 2d 274 (D.D.C. 2008)...............................................................................2, 23

Del. Strong Families v. Attorney General of Del.,

793 F.3d 304 (3d Cir. 2015).................................................................................................8

Del. Strong Families v. Denn, 

579 U.S. ___, 136 S. Ct. 2376 (2016)..................................................................................8

Doe v. Reed, 

561 U.S. 186 (2010)...........................................................................................................21

FEC v. Wis. Right to Life, Inc.,

551 U.S. 449 (2007)...................................................................................11, 12, 13, 23, 24

Free Speech v. FEC, 

720 F.3d 788 (10th Cir. 2013) ...........................................................................................10

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Hispanic Leadership Fund, Inc. v. FEC, 

897 F. Supp. 2d 407 (E.D. Va. 2012) ................................................................................16

Human Life of Wash., Inc. v. Brumsickle, 

624 F.3d 990 (9th Cir. 2010) ....................................................................................... 10-11

Indep. Inst. v. FEC, 

816 F.3d 113 (D.C. Cir. 2016).......................................................................................2, 14

Indep. Inst. v. FEC, 

70 F. Supp. 3d 502 (D.D.C. 2014).....................................................................................14

Indep. Inst. v. Williams, 

812 F.3d 787 (10th Cir. 2016) .............................................................................................7

McConnell v. FEC, 

540 U.S. 93 (2003)...................................................................................................1, 12, 22

McCutcheon v. FEC, 

572 U.S. ___, 134 S. Ct. 1434 (2014)................................................................5, 14, 15, 17

McIntyre v. Ohio Elections Comm’n, 

514 U.S. 334 (1995)...........................................................................................................18

NAACP v. Alabama, 

357 U.S. 449 (1958)...........................................................................................................17

NAACP v. Button, 

371 U.S. 415 (1963).............................................................................................................6

Nat’l Ass’n of Mfrs. v. Taylor, 

582 F.3d 1 (D.C. Cir. 2009)...............................................................................................18

Nat’l Ass’n of Mfrs. v. Taylor, 

549 F. Supp. 2d 33 (D.D.C. 2008).....................................................................................18

Nat’l Org. for Marriage v. McKee, 

649 F.3d 34 (1st Cir. 2011)..........................................................................................10, 23

Randall v. Sorrell, 

548 U.S. 230 (2006)...........................................................................................................18

Real Truth About Abortion v. FEC, 

681 F.3d 544 (4th Cir. 2012) .............................................................................................10

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R.J. Reynolds Tobacco Co. v. FDA, 

696 F.3d 1205 (D.C. Cir. 2012).........................................................................................16

Sampson v. Buescher, 

625 F.3d 1247 (10th Cir. 2010) .........................................................................................17

Shays v. FEC, 

414 F.3d 76 (D.C. Cir. 2005)...............................................................................................3

Shays v. FEC, 

337 F. Supp. 2d 28 (D.D.C. 2004)...................................................................................3, 9

Sorrell v. IMS Health Inc., 

564 U.S. 552 (2011)...........................................................................................................16

SpeechNow.org v. FEC, 

599 F.3d 686 (D.C. Cir. 2010)...........................................................................................10

Talley v. California, 

362 U.S. 60 (1960).......................................................................................................19, 20

United States v. Harriss, 

347 U.S. 612 (1954)...............................................................................................17, 18, 19

United States v. Williams, 

553 U.S. 285 (2008)...........................................................................................................16

Vt. Right to Life Comm., Inc. v. Sorrell, 

758 F.3d 118 (2d Cir. 2014).........................................................................................10, 23

Statutes

26 U.S.C. § 501(c)(3).......................................................................................................................3

26 U.S.C. § 504(a) ...........................................................................................................................5

26 U.S.C. § 527(k)(2)(C).................................................................................................................6

26 U.S.C. § 4955(a)(1).....................................................................................................................5

26 U.S.C. § 4955(a)(2).....................................................................................................................5

26 U.S.C. § 4955(b)(1) ....................................................................................................................5

26 U.S.C. § 4955(b)(2) ....................................................................................................................5

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26 U.S.C. § 4955(c)(1).....................................................................................................................5

26 U.S.C. § 4955(c)(2).....................................................................................................................5

26 U.S.C. § 4955(f)(2)(A)-(B).........................................................................................................5

26 U.S.C. §§ 6104(c)(3)...................................................................................................................6

26 U.S.C. §§ 6104(d)(3) ..................................................................................................................6

26 U.S.C. § 6104(d)(3)(A)...............................................................................................................6

26 U.S.C. § 6852(a) .........................................................................................................................5

26 U.S.C. § 7409(a) .........................................................................................................................5

26 U.S.C. § 7409(b).........................................................................................................................6

52 U.S.C. § 30104(f)(2)(E)............................................................................................................21

52 U.S.C. § 30104(f)(3)(A)(ii)...................................................................................................4, 22

52 U.S.C. § 30111(f)........................................................................................................................3

52 U.S.C. § 30112..........................................................................................................................21

Rules

11 C.F.R. § 100.29(c)(6)..............................................................................................................3, 9

11 C.F.R. § 104.20(c)(7)................................................................................................................21

26 C.F.R. § 1.501(c)(3)–1(c)(3)(iii).................................................................................................4

26 C.F.R. § 301.7409-1(b)...............................................................................................................5

I.R.S. Priv. Ltr. Rul. 1996-9652026 (Oct. 1, 1996) .........................................................................4

Rev. Rul. 81-95; 1981-1 C.B. 332 ...................................................................................................3

Rev. Rul. 2004-6, 2004-4 I.R.B. 328 ...............................................................................................4

Rev. Rul. 2007-41, 2007-25 I.R.B. 1421 .........................................................................................4

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Other Sources

FEC, Electioneering Communications, 

72 Fed. Reg. 72899 (Dec. 26, 2007)..................................................................................24

FEC, Express Advocacy; Independent Expenditures; Corporate and Labor Organization 

Expenditures, 60 Fed. Reg. 35292, 35296 (July 6, 1995)..................................................25

Federal Judicial Center, Bush v. Orleans Parish School Board and the Desegregation of New 

Orleans Schools: Biographies, Website 

http://www.fjc.gov/history/home.nsf/page/tu_bush_bio_naacp.html..................................6

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Introduction

The Federal Election Commission (“FEC” or “Commission”) has failed to provide any 

authority justifying the regulation of genuine issue advocacy, unconnected to any campaign or 

candidacy, as an electioneering communication. Consequently, it has failed to carry its burden 

under exacting scrutiny, and the Independence Institute is entitled to summary judgment. 

Argument

I. The Independence Institute differs sharply from Citizens United.

a. The FEC recycles its argument—already rejected by the D.C. Circuit—that 

McConnell and Citizens United foreclose the Institute’s challenge.

Principally, the FEC and its Amici rely on two Supreme Court cases: the facial ruling in 

McConnell v. FEC, 540 U.S. 93 (2003), and the as-applied ruling in Citizens United v. FEC, 558 

U.S. 310 (2010). See, e.g., FEC Br. at 18; Amici Campaign Legal Center (“CLC”) et al. Br. at 6. 

Neither case controls, because facial rulings do not foreclose as-applied challenges, and because

the facts of Citizens United differ significantly from those presented here.

First, McConnell was a facial ruling. As the McConnell Court itself said, “our rejection of 

plaintiffs’ facial challenge to the requirement to disclose individual donors does not foreclose 

possible future challenges to particular applications of that requirement.” Id. at 199.1

This leaves only Citizens United. See, e.g., FEC Br. at 25 (asserting “Citizens United 

directly and completely forecloses all of plaintiff’s constitutional arguments. . . .”). But the Court 

 

1 To the extent that the FEC relies upon converting the Institute’s case to a facial challenge, FEC 

Br. at 18 n.4, Citizens United addressed the issue, holding that “the distinction between facial 

and as-applied challenges is not so well defined that it has some automatic effect or that it must 

always control the pleadings and disposition in every case involving a constitutional challenge.” 

Citizens United, 558 U.S. at 331 (citing United States v. Nat’l Treasury Emp’s. Union, 513 U.S. 

454, 478 (1995)). That is because successful facial challenges are, appropriately, rare and the 

Supreme Court will “neither want nor need to provide relief to nonparties when a narrower 

remedy will fully protect the litigants.” Nat’l Treasury Emp’s. Union, 513 U.S. at 478. The 

Institute claims that the electioneering communications cannot be constitutionally applied to its 

intended speech, not that it is overbroad in every instance.

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of Appeals has already held that Citizens United does not foreclose this challenge. Indep. Inst. v. 

FEC, 816 F.3d 113, 116-17 (D.C. Cir. 2016); Mot. Sum. Judg. at 17. This is for two reasons. 

First, the Institute and Citizens United differ in organizational mission and activity, as reflected 

in their differing tax status. Second, the ad at issue in this case cannot be fairly compared to the 

ads at issue in Citizens United.2

Consequently, this Court must apply its own exacting scrutiny analysis to these 

particular, as-applied facts.

b. The difference between the Institute’s tax status and that of Citizens United 

is material.

After examining the Institute’s claims, the D.C. Circuit held: “Citizens United . . . did not 

address whether a speaker’s tax status or the nature of the nonprofit organization affects the 

constitutional analysis of BCRA’s disclosure requirement.” Indep. Inst., 816 F.3d at 116-17. 

Ignoring this clear and binding holding, the FEC claims that “[t]he fact that plaintiff is organized 

under a different subsection of the tax code than Citizens United does not render this case 

‘distinctly different’. . . .” FEC Br. at 29 (internal citation omitted). See also Mot. Summ. J. at 21 

(comparing Indep. Inst., 816 F.3d at 116 with V. Compl. at 20 ¶¶ 91-92 (ECF No. 1)).

i. As a § 501(c)(4) organization, Citizens United could engage in politics, 

something the Institute is barred from doing under § 501(c)(3).

Citizens United was (and remains) a § 501(c)(4) organization, a fact that was before the 

Supreme Court because it was specifically addressed in that case’s district court opinion. Citizens 

United v. FEC, 530 F. Supp. 2d 274, 275 (D.D.C. 2008) (three judge-court). And the Supreme 

Court noted that Citizens United had been “disclosing its donors for years.” Citizens United, 558 

 

2 The Court of Appeals did not reach this issue, reasoning that the Institute was entitled to a 

three-judge court based upon the nature of its nonprofit organization. Indep. Inst., 816 F.3d at 

117.

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U.S. at 370.3 Meanwhile, the Institute, as a § 501(c)(3) organization, may not intervene in 

political campaigns and its donor list is generally protected as a matter of federal law.

Congress has specifically commanded “the Commission and the Internal Revenue 

Service [to] consult and work together to promulgate rules, regulations, and forms which are 

mutually consistent.” 52 U.S.C. § 30111(f). Consequently, the very different missions and 

Internal Revenue Service (“IRS”) treatment of § 501(c)(3) and § 501(c)(4) organizations is 

relevant to this Court’s analysis of the ways in which BCRA burdens groups like the Institute 

more heavily than it burdens § 501(c)(4) groups.

4 Significantly, the IRS, through the tax code 

and its regulations, allow § 501(c)(4) organizations to engage in political activity. In stark 

contrast, the penalty for political intervention by a § 501(c)(3)’s is swift and severe. 

Section 501(c)(4) organizations, like Citizens United, can engage in activity supporting 

or opposing candidates—the very activity § 501(c)(3) organizations, like the Institute, are 

prohibited from doing. See 26 U.S.C. § 501(c)(3) (prohibiting “participat[ion] in, or 

intervene[ntion] in (including the publishing or distributing of statements), any political 

campaign on behalf of (or in opposition to) any candidate for public office.”). The only 

difference between what § 501(c)(4)s and § 527s, such as PACs, may do is that the former 

cannot engage in political activity as their primary purpose. See, e.g., Rev. Rul. 81-95; 1981-1 

 

3 The FEC claims Citizens United only disclosed “donors to its connected political committee or 

PAC.” FEC Br. at 32 (citing Citizens United, 558 U.S. at 370). Nothing in the cited page 

indicates a connected PAC, and the Court’s language strongly suggests that it viewed Citizens 

United itself as the disclosing entity. Perhaps the record was unclear on this point, but that is 

further reason to doubt Citizens United’s application here.

4

See Mot. Summ. J. at 21 n.12 (discussing 11 C.F.R. § 100.29(c)(6) and the FEC’s attempt to 

harmonize tax and campaign finance law regarding § 501(c)(3) activity). Because the FEC failed 

to address several considerations in its rulemaking, this Court set the rule aside and remanded for 

further action by the Commission on the rule. Shays v. FEC, 337 F. Supp. 2d 28, 127-28, 130 

(D.D.C. 2004), aff’d by 414 F.3d 76, 96 (D.C. Cir. 2005). The Commission failed to take any 

such action, leaving 11 C.F.R. § 100.29(c)(6) ineffective. 

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C.B. 332; I.R.S. Priv. Ltr. Rul. 1996-9652026 at *22 (Oct. 1, 1996) (“It follows that any 

activities constituting prohibited political intervention by a section 501(c)(3) organization are 

activities that must be less than the primary activities of a section 501(c)(4) organization, which 

are, in turn, activities that are exempt functions for a section 527 organization.”). The result is 

that the decision to label the Institute’s issue speech as “electioneering” necessarily bears the 

implication, and both the reputational and enforcement risk, that the Institute has done something 

illegal. A § 501(c)(4) organization faces no similar chill.

ii. Section 501(c)(3) organizations that violate the political activity 

prohibition face substantial penalties.

Under the tax regulations, organizations that participate in political campaigns are “action 

organizations.” See, e.g., 26 C.F.R. § 1.501(c)(3)–1(c)(3)(iii) (defining “action organization”). 

To determine if an § 501(c)(3) organization has tread into impermissible waters, and thus 

become an “action organization,” the IRS employs an eleven factor “facts and circumstances” 

test. See, e.g., Rev. Rul. 2004-6, 2004-4 I.R.B. 328, 330; Rev. Rul. 2007-41, 2007-25 I.R.B. 

1421. But the IRS specifically recognizes that “Section 501(c)(3) organizations may take 

positions on public policy issues. . .” so long as the issue advocacy does not “function[] as 

political campaign intervention.” Rev. Rul. 2007-41, 2007-25 I.R.B. at 1424. The IRS clarifies 

that this is not an express advocacy standard, but rather that “any message favoring or opposing a 

candidate” may trigger the prohibition. Id.

5

 

5 This bears some resemblance to the Promotes, Attacks, Supports, or Opposes standard in the 

backup definition for electioneering communications. 52 U.S.C. § 30104(f)(3)(A)(ii); see Section 

IV, infra. Although the IRS’s “facts and circumstances” test provides the Service with nearabsolute discretion to determine whether a particular action is campaign intervention, the FEC 

officially designating something an “electioneering communication” would likely be relevant to 

that determination.

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Violating this prohibition carries heavy penalties.6 The politically-active § 501(c)(3) 

faces an initial 10 percent tax on the amount of the political expenditure, 26 U.S.C. § 4955(a)(1), 

with a further penalty of up to 100 percent available if the violation is not corrected during the 

tax year. 26 U.S.C. § 4955(b)(1). Likewise, the § 501(c)(3) cannot simply convert to a

§ 501(c)(4) if it violates the anti-campaign rule. 26 U.S.C. § 504(a).

Illegal campaign intervention also triggers monetary penalties, levied as a tax, on the 

managers and employees7of the § 501(c)(3). For the initial penalty, the managers are taxed at 

2.5% of the amount of the political expenditure. 26 U.S.C. § 4955(a)(2). If the manager “refused 

to agree to part or all of the correction,” then she is subject to “a tax equal to 50 percent of the 

amount of the political expenditure.” 26 U.S.C. § 4955(b)(2). Managers are jointly and severally 

liable, 26 U.S.C. § 4955(c)(1), for up to $5,000 per initial violation and $10,000 for the failure to 

correct. 26 U.S.C. § 4955(c)(2). Thus, the individuals involved with impermissible political 

activity face personal consequences.8

 

6 Amici CLC et al. suggest that because some organizations and managers violate the tax code, 

then it is no protection against impermissible candidate activity by § 501(c)(3) organizations. 

Amici CLC et al. Br. at 21 n.7. That some break the tax law is no basis for the FEC to regulate 

the Institute, which does not, nor a sufficient basis upon which to set aside decades of precedent 

specifically protecting the discussion of political issues by civil society groups. To the contrary, 

the Supreme Court has consistently demanded a tight fit rather than the “prophylaxis upon 

prophylaxis approach” to campaign finance regulation Amici suggest. McCutcheon v. FEC, 572 

U.S. ___, ___, 134 S. Ct. 1434, 1458 (2014) (Roberts, C.J., plurality opinion) (collecting cases).

7 The political activity penalty can be applied to “any officer, director, or trustee of the 

organization” or “any employee of the organization having authority or responsibility with 

respect to [a political] expenditure.” 26 U.S.C. § 4955(f)(2)(A)-(B). 

8 These penalties are not mere threats. Under 26 U.S.C. § 6852(a), the IRS may immediately 

assess these “taxes” (that is, the Service need not wait until the end of the taxable year). 

Congress also allows the IRS to seek an injunction to stop further violations of the § 501(c)(3) 

prohibition on political activity, 26 U.S.C. § 7409(a). The Treasury Regulations provide for a 

quick resolution of flagrant political activity by a § 501(c)(3) organization. Under 26 C.F.R. 

§ 301.7409-1(b), the violating organization has only ten calendar days to reply to the IRS’s letter 

notifying of the violations. Thereafter, the Commissioner of the IRS may “personally determine 

whether to forward to the Department of Justice a recommendation that it immediately bring an 

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Taken together, the Internal Revenue Code provides the IRS with substantial penalties 

applicable to any § 501(c)(3) or its officers that “intervene” in a campaign. The FEC’s 

confidence that its labeling an entirely-permissible issue advertisement as “electioneering” will 

not draw these penalties down upon the Institute is cold, and baseless, comfort.

iii. Tax law and Supreme Court precedent protect donors to § 501(c)(3) 

organizations to a greater extent than donors to § 501(c)(4) groups.

26 U.S.C. §§ 6104(c)(3) and (d)(3) highlight that, unless there is a specific reason to do 

so, the tax code abhors general public disclosure—except when an organization has the major 

purpose of participating in politics. See, e.g., 26 U.S.C. § 6104(d)(3)(A) (removing the 

exemption from public disclosure, and thereby permitting disclosure of contributors, to “a 

political organization exempt from taxation under [26 U.S.C.] section 527”).

9

Supreme Court precedent specifically protects nonprofits from expansive donor 

disclosure—particularly when not discussing candidacies. See, e.g., Mot. for Sum. J. at 11. For 

example, in NAACP v. Button, 371 U.S. 415, 417 (1963), the national civil rights organization 

partnered with its newly-formed sister organization, the NAACP Legal Defense and Education 

Fund10 to challenge Virginia’s ban on attorney solicitation. Id. at 419. That case, in turn, helped 

formed the basis for the Supreme Court’s ruling, in Buckley v. Valeo, “that compelled disclosure, 

 

action to enjoin the organization from making further political expenditures.” Id. The U.S. 

District Courts are empowered to issue the injunctions in such matters. 26 U.S.C. § 7409(b).

9 Cf. 26 U.S.C. § 527(k)(2)(C) (providing that the IRS “shall make the entire database of notices 

and reports which are made available to the public under paragraph (1) searchable by the 

following items. . . (C) Contributors to the organizations”).

10 As noted in its coverage of the Bush v. Orleans Parish School Board, 364 U.S. 500 (1960), the 

Federal Judicial Center’s research found that “[i]n 1940, the [NAACP] established the Legal 

Defense and Educational Fund, Inc., to direct its litigation efforts. . . [and] was established to 

accept tax-deductible contributions that could not be accepted by the NAACP because of its 

status as a lobbying organization.” Federal Judicial Center, Bush v. Orleans Parish School Board 

and the Desegregation of New Orleans Schools: Biographies, Website 

http://www.fjc.gov/history/home.nsf/page/tu_bush_bio_naacp.html. In other words, the NAACP 

set up a § 501(c)(3) arm to separate its lobbying and political activity from other charitable work. 

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in itself, can seriously infringe on privacy of association and belief guaranteed by the First 

Amendment.” 424 U.S. 1, 64 (1976) (per curiam) (citing Button among other civil rights cases).

In short, when speaking of privacy of association and belief in the context of issue advocacy, the 

Court was referring specifically to action by § 501(c)(3) analogues.

iv. The out-of-circuit authority supplied by the Commission and Amici is

inapposite.

To support its view that Citizens United forecloses any distinction among entities based 

upon their tax status, the Commission cites a number of out-of-circuit cases. See FEC Br. at 19.

None are controlling.

First, in what the FEC misnames “Independence Institute II,”11 a Colorado provision 

regulating electioneering communications survived an as-applied challenge. FEC Br. at 19 

(discussing Indep. Inst. v. Williams, 812 F.3d 787, 794 (10th Cir. 2016)).

12 But the underlying 

communication at issue in Williams spoke directly about a single candidate running for governor, 

and suggested his position on the issue being discussed. Williams, 812 F.3d at 790. By contrast, 

the communication that the Institute seeks to make about the Justice Safety Valve Act 

encourages Coloradoans to contact both of the state’s U.S. senators, not merely the one running 

for re-election. And Williams presented a potential difficulty in determining a remedy: unlike the 

federal statute at issue here, Colorado law did not and does not contain an unquestionably 

 

11

“Independence Institute II” is misleading as that matter is entirely unconnected to the question 

before this Court. There, the Tenth Circuit examined a state law provision, and not BCRA, and 

the FEC was not a party. The Institute will consequently refer to that matter as Williams.

12 Williams examined a state law that specifically allowed for the disclosure of only earmarked

contributions. Williams, 812 F.3d at 790 n.1 (“The Secretary interprets the [disclosure] 

requirement to apply only to donations specifically earmarked for electioneering 

communications. In other words, the donor must intend the donations be used for electioneering 

communications and not for other activities of the speaker.”). The Institute preserves its 

argument that the FEC’s lackluster defense of 11 C.F.R. § 104.20(c)(9) in the Van Hollen

litigation still leaves the earmarking limitation in doubt, which affects the burdens on and harm 

to the Institute. See Mot. for Summ. J. at 9 n.3. 

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constitutional back-up definition addressing speech supporting or opposing (as opposed to 

merely naming) candidates. 

Many of the Commission’s remaining cases involve not genuine issue speech, but rather 

communications that more comfortably rest within the “unambiguously campaign related”

standard applicable here. Furthermore, many of those cases involve statutes that would have 

protected the Institute’s speech from being regulated in the first instance. 

In its analysis of Delaware Strong Families v. Attorney General of Delaware, the FEC

ignores the Institute’s argument that there be some connection between electioneering 

communications regulation and actual election activity, and instead focuses on the Third 

Circuit’s language on express advocacy. FEC Br. at 19 (discussing 793 F.3d 304 (3d Cir. 2015)

(“DSF”), cert. denied sub nom. Del. Strong Families v. Denn, 579 U.S. ___, 136 S. Ct. 2376 

(2016)) (“disclosure requirements are not limited to express advocacy and that there is not a rigid 

barrier between express advocacy and so-called issue advocacy”) (internal quotation marks and 

citation omitted). The Third Circuit, however, applied exacting scrutiny to the specific facts of 

that as-applied case, just as this Court must do here.

As a result of the FEC’s emphasis on the lack of “express advocacy” in DSF, rather than 

the “fit” between the communication at issue there and Delaware’s disclosure requirements, the 

Commission glosses over the substantial difference between these cases. The plaintiffs in DSF

were engaged in the distribution of voter guides, which the Third Circuit specifically found to be 

“election-related.” DSF, 793 F.3d at 308. That voter guide was designed to “impact voter choice” 

by informing the electorate of stances taken by major-party candidates for office. Id. But the 

Institute’s ad does not speak to stances already taken by candidates—it asks that the people of 

Colorado ask their senators, one of whom happened to be a candidate for re-election, to sponsor 

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a specific piece of legislation. Even if a voter could physically take the Institute’s proposed 

broadcast directly into the voting booth, as she might have done with the DSF voter guide, it 

would not provide her with very much useful information with which to analyze the candidates. 

It would not tell her if either senator supported the measure, or why they opposed it, or even 

where opposing candidates stand on the Act. The DSF voter guide did all of these things, and 

was consequently “unambiguously campaign related.”

Center for Individual Freedom v. Tennant, 706 F.3d 270 (4th Cir. 2013) fares no better.

Amici CLC Br. at 3-4; id. at 20. That case, a general challenge to West Virginia’s electioneering 

communication regime, was brought by a pair of “§ 501(c)(4) organizations that engage,” unlike 

the Institute, “in election-related speech.” Tennant, 706 F.3d at 275. The § 501(c)(4) 

organizations sought to invalidate, as underinclusive, id. at 285, West Virginia’s statute 

exempting § 501(c)(3) organizations from that electioneering communications regime. The 

Fourth Circuit struck the provision, which was “identical” to a regulatory exception that existed 

under BCRA. Id. at 289; 11 C.F.R. § 100.29(c)(6) (repealed Jan. 19, 2006). The court then 

observed that “legislatures must base their conclusions on substantial evidence,” and relied on 

this Court’s administrative law decision in Shays, 337 F. Supp. at 126-128, for the proposition 

that the West Virginia legislature could not have based its exception on “substantial evidence.” 

Id.; see Shays, 337 F. Supp. 2d at 128 (finding that Defendant FEC “failed to conduct a 

‘reasoned analysis’” in promulgating the exception). Such a concern is unnecessary here, where 

the Parties have provided enough information for this Court to conduct a reasoned, exacting 

analysis of the application of the law to a specific § 501(c)(3) organization producing specific

non-election-related content. 

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Moreover, amici miss the Tennant Court’s far more consequential holding relating to the 

§ 501(c)(4) plaintiffs’ challenge to West Virginia’s “grassroots lobbying” provision, which 

exempted communications similar to the Institute’s from being regulated as electioneering 

communications at all. Applying exacting scrutiny, the Fourth Circuit upheld the provision, 

finding that language similar to BCRA’s backup definition—the “Promote, Attack, Support, 

Oppose,” or “PASO,” standard—survived constitutional scrutiny, Tennant, 706 F.3d at 287,13

while observing that the exception properly worked to “avoid burdening pure issue advocacy.” 

Id. at 288. Tennant works for, not against, the Institute. 

The FEC’s remaining cases, buried in a string cite, are all inapposite. FEC Br. at 21. Ctr. 

for Individual Freedom v. Madigan, 697 F.3d 464, 471 (7th Cir. 2012) (comprehensive facial 

challenge brought by a § 501(c)(4) to an Illinois statute that, inter alia, exempted § 501(c)(3) 

organizations); Vt. Right to Life Comm., Inc. v. Sorrell, 758 F.3d 118, 122 (2d Cir. 2014) 

(unsuccessful challenge by § 501(c)(4) organization and its § 527 affiliate to an electioneering 

statute reaching only speech meeting the PASO standard); Real Truth About Abortion v. FEC, 

681 F.3d 544, 545 (4th Cir. 2012) (vagueness challenge to federal rules determining PAC status, 

not electioneering communications reporting duties, brought by a § 527 political organization); 

Free Speech v. FEC, 720 F.3d 788, 791 (10th Cir. 2013) (same challenge, brought by a 

Wyoming entity); SpeechNow.org v. FEC, 599 F.3d 686, 697 (D.C. Cir. 2010) (challenge to 

PAC requirements by a group seeking to expressly advocate, and which specifically disclaimed 

any challenge to one-time independent expenditure reporting); Nat’l Org. for Marriage v. 

McKee, 649 F.3d 34, 60 (1st Cir. 2011) (facial challenge brought against an electioneering 

communications statute requiring no donor disclosure); Human Life of Wash., Inc. v. Brumsickle, 

 

13 See infra at Section IV.

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624 F.3d 990, 1018 (9th Cir. 2010) (upholding disclosure statute because, in that court’s view, 

the state’s informational interest in disclosure is higher for ballot-measure elections than in 

candidate elections).

This Court has a duty to perform an independent analysis of the record and apply 

exacting scrutiny. None of the FEC’s, or Amici’s, out-of-circuit authority stands against that 

proposition, and none of their proffered cases involve comparable circumstances.

II. Not all speech that mentions a candidate is electioneering, and the Institute’s ad 

is far from any gray area, for it is entirely focused on a legislative issue.

Speaking about a political issue, discussing an election, discussing a candidate as such, 

and advocating for or against that candidate’s election, are not all the same thing. But the FEC 

has conflated them. FEC Br. at 1. Still, the commonsense fact remains: even if some issue 

discussions are cloaked invitations to vote a particular way, and even if those communications 

are sufficient to facially uphold a law, it does not follow that this is true of the Institute’s 

particular speech. Exacting scrutiny requires a more careful approach than the reductionist model 

preferred by the Commission. In short, there is a range of political discussion that has nothing to 

do with candidate advocacy, and the Institute’s proposed ad is far from that line.

a. Express advocacy is a subset of “unambiguously campaign related” speech.

Express advocacy and its functional equivalent are not the only form of speech other than 

“genuine issue speech.”14 This is obvious: commercial speech is one example that addresses 

neither issues nor elections. But even political speech is on a spectrum: at one end is genuine 

issue speech, and at the other end sits express advocacy to vote for or against a candidate. See V. 

 

14 Buckley clarifies that speech must be “unambiguously campaign related” to compel disclosure 

under campaign finance laws. See, 424 U.S. at 81. It may well be that the functional equivalent 

of express advocacy test from FEC v. Wis. Right to Life, Inc., 551 U.S. 449, 469-70 (2007)

(“WRTL II”), is the best test, in practice, for drawing this distinction. But it is not the only test

under which the Institute prevails. See Section IV, infra, (discussing the statutory backup 

“PASO” definition and its use in the states). 

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Compl. at 19-20, ¶¶ 89-90 (ECF No. 1). In the middle is speech that is clearly related to the 

campaign and candidate, but does not contain an express call to vote. This was the speech at 

issue in Citizens United: to the extent it was political at all, it discussed then-Senator Clinton’s 

candidacy, her fitness for office, and her character. The Institute’s ad is issue speech focused on 

a legislative bill, entirely divorced from any candidacy.

The FEC is confused, believing that express advocacy and its functional equivalent are

the same “repackaged” idea as Buckley’s “unambiguously campaign related” test. FEC Br. at 16. 

It is not. Instead, express advocacy and its functional equivalent is a subset of “unambiguously 

campaign related” speech. So while express advocacy and its functional equivalent is necessarily

“unambiguously campaign related,” other, non-express advocacy communications can also be 

about a campaign, without taking a position on the campaign. 

If an ad comes close to outright advocacy, but does not use express words to that effect, it 

is what the McConnell Court called the “functional equivalent” of express advocacy which are 

“ads aired during those periods if the ads are intended to influence the voters’ decisions and have 

that effect.” McConnell, 540 U.S. at 206. The WRTL II Court further provided that an ad is the 

functional equivalent of express advocacy if it “is susceptible of no reasonable interpretation 

other than as an appeal to vote for or against a specific candidate.” WRTL II, 551 U.S. at 470. 

Even still, in describing the scope of its “functional equivalent of express advocacy” test, the 

WRTL II Court also described a genuine issue ad—another, distinct, category of speech. Such

ads “focus on a legislative issue, take a position on the issue, exhort the public to adopt that 

position, and urge the public to contact public officials with respect to the matter.” Id. at 470.

Even under the FEC’s interpretation, the Citizens United ads—the only precedent that 

could possibly bind this court and overrule Buckley’s protection of genuine issue speech—sit in 

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this gray area on the issue-speech-to-express-advocacy spectrum. As this case exemplifies, the 

Citizen United ads may not have been the functional equivalent of express advocacy (although 

Hillary: The Movie unquestionably was) because they could be interpreted “other than as an 

appeal to vote for or against a specific candidate.” WRTL II, 551 U.S. at 470.15 The FEC itself 

believes that the Citizen United ads were commercial transactions. See, e.g., FEC Br. at 22; cf. 

Mot. for Summ. J. at 35 n.22 (“To the extent they did not function as express advocacy, the 

Citizen United ads were commercial speech. . . .”) . But the Citizens United ads clearly did not fit 

within WRTL II’s description of an issue ad. They did not “focus on a legislative issue, take a 

position on the issue, exhort the public to adopt that position, and urge the public to contact 

public officials with respect to the matter.” WRTL II, 551 U.S. at 470.

The “unambiguously campaign related” standard provides the valuable service of 

categorizing speech that is clearly about a candidacy, but nevertheless falls shy of advocating for 

or against a candidate. Indeed, WRTL II clarified that issue speech would “not mention an 

election, candidacy, political party, or challenger; and [would] not take a position on a 

candidate's character, qualifications, or fitness for office.” Id. These are not characteristic of the 

Hillary ads. See Citizens United, 558 U.S. at 320 (“Each ad includes a short (and, in our view, 

pejorative) statement about Senator Clinton . . . ”); id. at 368 (“The ads . . . contained pejorative 

references to [Clinton’s] candidacy”) (emphasis added).

This distinction can also be found in the D.C. Circuit’s en banc decision in Buckley v. 

Valeo, 519 F.2d 821 (D.C. Cir. 1975) (en banc) (“Buckley ’75”) aff’d in part and rev’d in part, 

424 U.S. 1 (1976). The FEC does not believe that decision is relevant because it “‘bears no 

 

15 The Institute has argued, and preserves the argument, that the ads were in fact express 

advocacy or its functional equivalent. But even if this Court disagrees, that does not mean the ads 

were not unambiguously related to the 2008 presidential election. See Mot. for Summ. J. at 34.

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resemblance to the disclosure requirements in BCRA section 201 and sheds no light on the 

Court’s consideration of them’” FEC Br. at 35 (quoting Indep. Inst. v. FEC, 70 F. Supp. 3d 502,

514-15 n.17 (D.D.C. 2014), rev’d in part 816 F.3d 113 (D.C. Cir. 2016)). But Buckley ’75 is 

highly relevant, for the scope of § 437a allowed a similar regulatory scope: any mention of a 

candidate, regardless of whether that mention was related to his or her campaign. Mot. for 

Summ. J. at 28 n.18; Buckley, 519 F.2d at 870 (section 437a could extend to “groups whose only 

connection with the elective process arises from completely nonpartisan public discussion of 

issues of public importance”). Left unchecked, § 437a would have reached the issue-focused 

activity of groups such as “Common Cause, the American Conservative Union, the American 

Civil Liberties Union and... environmental groups.” Id. at 877 (quoting floor statement of Rep. 

William Frenzel, 120 Cong. Rec. H. 10333 (daily ed., Oct. 10, 1974)).16 The Independence 

Institute falls in the same category as the American Civil Liberties Union or Common Cause: 

educational charities speaking out on issues and official actions, not participating in politics.

This portion of Buckley ’75 was unreviewed by the Supreme Court or any subsequent en 

banc decisions of the Circuit, and its holding—that it is unconstitutional to regulate nonprofit, 

nonpartisan speech unrelated to campaigns—remains binding authority. Buckley, 424 U.S. at 11 

n.7.

III. The government cannot carry its burden under exacting scrutiny in this narrow, 

as-applied challenge.

Exacting scrutiny is a “strict test,” Buckley, 424 U.S. at 66, that demands careful review 

of both the asserted governmental interest and whether the law is tailored to that interest. 

McCutcheon, 134 S. Ct. at 1456 (“In the First Amendment context, fit matters.”). The federal 

 

16 Amici believe that the concern over § 437a was about political committee status. Amici CLC 

Br. at 11. Judge Tamm’s concerns about disclosure refute that reading of Buckley ’75. See id. at 

914 (Tamm, J., concurring in part and dissenting in part).

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campaign finance laws’ intrusions on issue speech and associational privacy can only be justified 

by the informational interest—by providing information that informs the public about those 

supporting or opposing candidates. But that interest does not extend to the communication here, 

and expanding the informational interest to all communications even mentioning a candidate, 

regardless of other content, unnecessarily burdens issue speech calling for official action. 

a. The FEC has no legitimate interest in issue speech that in no way 

electioneers.

The FEC confuses the interests at issue here, and it thus treats issue speech as less worthy 

of First Amendment protection than political speech in other areas where the government’s 

interests are much clearer. It even suggests that the discussion of political issues is less protected 

than commercial speech or lobbying. But the Supreme Court has repeatedly held that the 

Commission “operate[s] in an area of the most fundamental First Amendment activities,” 

McCutcheon, 134 S. Ct. at 1444 (Roberts, C.J., plurality op.), and that—as discussed below—the 

First Amendment gives special protection to issue speech in particular. 

For example, the FEC takes statements in Citizens United out of context to suggest that 

issue speech is less protected than commercial speech. See FEC Br. at 21-22. In the passages 

quoted, however, the Citizens United Court was addressing the argument that several ads 

attacking Hillary Clinton were merely commercial advertisements encouraging people to see a 

movie and thus should not be regulated under BCRA. The Supreme Court saw these ads for what 

they were: “pejorative” statements about Hillary Clinton. Citizens United, 558 U.S. at 320. 

Because the ads carried information about Hillary Clinton, and were intimately tied to those 

opposing her through the related movie, the Supreme Court concluded that the informational 

“interest in knowing who is speaking about a candidate shortly before an election” justified 

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application of the law to the ads. Id. at 369. The FEC fails to note that this case has nothing to do 

with speaking about legislators, but with speaking to them about important public issues. 

Furthermore, the FEC commits a basic category error in using cases permitting control of 

commercial speech to justify the control of political speech.17 The Government’s interests in the 

two contexts are dissimilar. See Sorrell v. IMS Health Inc., 564 U.S. 552, 579 (2011) (“[T]he 

government’s legitimate interest in protecting consumers from ‘commercial harms’ explains 

‘why commercial speech can be subject to greater governmental regulation than noncommercial 

speech.’”) (citation omitted).

18 Put simply, the argument that the ads in Citizens United should 

not be regulated because they were mere commercial speech—speech entitled to comparativelyslight constitutional protection—failed before the Supreme Court. But that does not mean that 

the Court’s ruling reached genuine issue ads, which are entitled to far greater protection.19

The FEC also errs in simply assuming that the entire range of issue speech may be 

regulated because the Supreme Court has blessed the regulation of advocacy concerning ballot 

initiatives, where the people act directly as the legislative branch.

20 The biggest difference 

between this case and the ballot issues context is that ballot advocacy is unambiguously 

 

17 See FEC Br. at 20. 

18 See also United States v. Williams, 553 U.S. 285, 298 (2008) (noting that “the First 

Amendment status of commercial speech” is “less privileged” than other forms of speech). In 

fact, the government may compel speech in the commercial context in a way it cannot for 

discussions of public policy. Am. Meat Inst. v. United States Dep’t of Agric., 760 F.3d 18, 31 

(D.C. Cir. 2014) (“The Government has long required commercial disclosures to prevent 

consumer deception or to ensure consumer health or safety”); see also R.J. Reynolds Tobacco 

Co. v. FDA, 696 F.3d 1205, 1211 (D.C. Cir. 2012) (noting that there was no dispute about 

Congress’s authority to require health warnings on cigarette packages).

19 Likewise, the Commission’s citation to Hispanic Leadership Fund v. FEC is inapposite. 897 F. 

Supp. 2d 407 (E.D. Va. 2012). That case largely turned on whether or not five specific 

communications were electioneering communications at all. Id. at 416. In any event, the 

plaintiff’s communications were dissimilar from the Institute’s. Each ad criticized a specific, 

ongoing policy of the Obama administration, and encouraged viewers to take action against that 

policy, just before the 2012 Presidential election. Id. at 416-418. 

20 See FEC Br. at 22-23; see also Amici CLC Br. at 16.

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campaign related—it involves express advocacy concerning specific measures that will be on a 

ballot. The same interest is not present here, because BCRA’s disclosure rules give no 

information about those supporting or opposing any question being put to the voters. 

The FEC further errs in attempting to justify its restrictions on political activity using 

lobbying disclosure laws. The FEC relies on United States v. Harriss, 347 U.S. 612 (1954), FEC 

Br. at 24, but both the FEC and the courts citing to Harriss have acted as if the state of campaign 

finance regulation has stayed in stasis ever since 1954. The Supreme Court has not revisited 

lobbying disclosure in the last 60 years, but it has drastically altered the range of constitutional 

protection for associational privacy, in decisions from NAACP v. Alabama and Buckley to 

McConnell and Citizens United. And the changes brought on by these cases are immense: The 

Supreme Court in NAACP v. Alabama, 357 U.S. 449, 460 (1958), recognized the rights to both 

political association and political expression, including the right to anonymity in membership 

lists. Id. at 462. The Court has articulated a “strict standard of scrutiny,” one in line with NAACP 

v. Alabama, to protect “the right of associational privacy.” Buckley, 424 U.S. at 75. Furthermore, 

“the Supreme Court has recognized three proper justifications for reporting and disclos[ure]” 

laws: the anticircumvention, anticorruption, and informational interests. Sampson v. Buescher, 

625 F.3d 1247, 1256 (10th Cir. 2010) (quoting Buckley, 424 U.S. at 67-68).21 Given that Harriss 

was decided before the Supreme Court recognized the right of associational privacy and the 

 

21 These three proper justifications for disclosure are circumscribed. The McCutcheon Court, for 

example, limited the anticorruption interest to quid pro quo corruption (or its appearance), which 

requires the exchange of an official act for money. 134 S. Ct. at 1441, 1451. With regard to the 

informational interest, the Buckley Court limited that interest to disclosure that “increases the 

fund of information concerning those who support the candidates.” 424 U.S. at 81. And, as the 

Tenth Circuit has noted, the Supreme Court has limited even that to those who “have a financial 

interest in the outcome of the election.” Sampson, 625 F.3d at 1259. The FEC however, would 

expand the informational interest to cover any important public issue, based on the principle that 

enquiring minds want to know. See FEC Br. at 23 n.5.

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dangers of compelled disclosure to association, it is doubtful that donor privacy concerns were 

considered when the Supreme Court decided Harriss.

22

Furthermore, although Harriss was decided before the Supreme Court articulated the 

interests the government must meet to pass scrutiny, the Court has begun to interpret and apply 

Harriss in light of those interests. In McIntyre v. Ohio Elections Comm’n, 514 U.S. 334 (1995), 

for example, the Supreme Court stated that it had upheld “limited disclosure requirements for 

lobbyists” in Harriss and noted the “appearance of corruption” created by “lobbyists who have 

direct access to elected representatives.” Id. at 356 n. 20 (emphasis added); cf. Randall v. Sorrell, 

548 U.S. 230, 274 (2006) (Stevens, J., dissenting) (stating that Buckley overturned Harriss, 

which had allowed limitations on expenditures as permissible regulations of conduct). The FEC 

has not demonstrated any risk of corruption or its appearance related to the Independence 

Institute’s activities. Citizens United, 558 U.S. at 357 (Buckley “did not extend [the anticorruption] rationale to independent expenditures, and the Court does not do so here”).

Furthermore, the McIntyre Court’s discussion of the anticorruption interest highlights 

another problem with the FEC’s misappropriation of Harriss: that case dealt with professional 

lobbyists who were paid “to communicate face-to-face with members of Congress, at public 

functions and committee hearings, [and] to induce” letter writing campaigns. Harriss, 347 U.S. 

at 615. This case deals with neither professional lobbyists nor professional lobbyists meeting 

face-to-face with members of Congress, wining and dining them. Lobbying disclosure, in short, 

 

22 Moreover, as this court and other courts have recognized, there is uncertainty even about what 

standard the Supreme Court applied in Harriss. Nat’l Ass’n of Mfrs. v. Taylor, 549 F. Supp. 2d 

33, 49 (D.D.C. 2008) (applying strict scrutiny without deciding whether strict or heightened 

scrutiny applies); see also Tennant, 706 F.3d at 287 (requiring that provisions of lobbying 

regulation scheme meet exacting scrutiny); Nat’l Ass’n of Mfrs. v. Taylor, 582 F.3d 1, 10 (D.C. 

Cir. 2009) (holding that lobbying disclosure statute must meet strict or heightened scrutiny). 

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is a “self-protection”

23 mechanism intended to limit corruption, while the Supreme Court has 

explicitly stated that independent speech of the type suggested here does not implicate the 

government’s anticorruption interest.

The FEC has failed to demonstrate that it has a “sufficiently important governmental 

interest” in the disclosure here. Citizens United, 558 U.S. at 359; id. at 366-67; see also Tennant, 

706 F.3d at 287 (noting that “the Supreme Court has been loath to endorse” regulation of “true 

issue advocacy.”). The information requested would tell voters nothing about those supporting or 

opposing a candidate. 

b. The harm imposed upon the Institute outweighs the FEC’s interest in 

disclosure for issue advocacy not related to any candidacy or election.

i. The harm of public disclosure goes beyond threats, harassment, or 

reprisals.

Under the FEC’s theory of disclosure, the only viable as-applied challenge is one where 

there are documented threats, harassments, or reprisals. FEC Br. 36. The Institute does not assert 

a specifically higher risk of threats, harassment, or reprisals. Joint Stipulation and Order at 1 

(ECF No. 14). But the Supreme Court has long recognized the general and universal danger of 

threats, harassments, and reprisals, and it is for precisely that reason that disclosure provisions 

are required to survive exacting scrutiny. Moreover, unlike the Buckley, McConnell, or Citizens 

United plaintiffs, the Independence Institute is a non-political think tank that does not disclose its 

donors. Disclosure itself is the harm. 

Talley v. California, 362 U.S. 60 (1960), establishes that the right to private association is 

not limited to individuals or groups subject to threats, harassments, or reprisals. The record in 

that case was “barren of any claim, much less proof, that [Talley would] suffer any injury 

 

23 Harriss, 347 U.S. at 625 (observing that to deny Congress the ability to know the identities of 

those “being hired, who is putting up the money, and how much” would deny it “the power of 

self-protection”).

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whatever by identifying the handbill with his name.” Id. at 69 (Clark, J. dissenting). Indeed, the 

dissent claimed that Talley’s case was “[u]nlike NAACP v. Alabama... [in that] no proof [was 

proffered] that Talley or any group sponsoring him would suffer economic reprisal, loss of 

employment, threat of physical coercion [or] other manifestations of public hostility.” Id.

(internal citation and quotation marks omitted, emphasis added). Nevertheless, the majority held, 

“there are times and circumstances when States may not compel members of groups engaged in 

the dissemination of ideas to be publicly identified. . . . The reason for those holdings was that 

identification and fear of reprisal might deter perfectly peaceful discussions of public matters of 

importance.” Id. at 65 

While Buckley approved disclosure, it did so only for narrowly-defined organizations (or 

activities) that were unambiguously campaign related. 424 U.S. at 81. Because Buckley was a 

facial ruling, it could not have been premised upon a record concerning the threats, harassment, 

or reprisal of particular donors. It nevertheless held that privacy of association is a protected 

constitutional right. Id. at 80. In reserving the future possibility that a particular political 

committee—as defined under a narrowed, constitutional statute—could bring an as-applied 

challenge on the basis of threats, harassment, or reprisals, it was not undoing the underlying 

work that narrowed FECA’s reach. Id. at 74. Nor was it stating that this was the only ground

upon which an as-applied case could be brought.24

To counter this analysis, the FEC cites an unrelated case, Center for Competitive Politics 

v. Harris, 784 F.3d 1307 (9th Cir. 2015), cert. denied, 136 S. Ct. 480 (U.S. 2015). FEC Br. at 32. 

Harris, however, is not a campaign finance case, and in that case “the disclosure would not be 

 

24 This is obvious from the as-applied challenges that were, in fact, subsequently brought. See, 

e.g., FEC v. Mass. Citizens for Life, Inc., 479 U.S. 238 (1986) (“MCFL”).

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public.” Id. at 1316. In stark contrast, electioneering communications reports are published

world-wide on the Internet. 52 U.S.C. § 30112.

25 The case is simply inapplicable. 

Consequently, the lack of specific threats does not change the fact that forced public

disclosure is inherently risky—particularly for § 501(c)(3) organizations–and that this case is 

subject to heightened constitutional scrutiny.

ii. The alternative “separate bank account” to protect general donor 

disclosure is burdensome.

The FEC argues that only earmarked donations are publically disclosed.26 FEC Br. at 37. 

But, in the alternative, the FEC proposes a separate segregated account under 52 U.S.C. 

§ 30104(f)(2)(E) and 11 C.F.R. § 104.20(c)(7)—an idea that has been repeatedly rebuffed by the 

Supreme Court because it inherently restricts organizational fundraising. In fact, the Citizens 

United Court expressly rejected the “separate bank account” theory in part because it severely 

limits who may contribute to the account. 558 U.S. at 328. 

The FEC’s interest in such segregated funds is clearer if they are used to pay for ads that 

actually electioneer for or against candidates. But, here, such limitations hamper an organization 

speaking about public policy. Limiting funding sources to nonprofits is a key consideration in 

finding a campaign finance provision too burdensome. See, e.g., MCFL, 479 U.S. at 266 

(O’Connor, J., concurring) (“additional requirements [must] further the Government's 

informational interest in campaign disclosure. . . .”). Where, as here, the FEC would impose an 

additional administrative burden upon a nonprofit discussing an issue of public importance, and 

 

25 This universal dissemination of campaign finance reports only heightens the risk of 

harassment. See Doe v. Reed, 561 U.S. 186, 242 (2010) (Thomas, J., dissenting) (recognizing 

“the state of technology today creates at least some probability that signers of every referendum 

will be subjected to threats, harassment, or reprisals if their personal information is disclosed”)

(emphasis in original).

26 Of course, the balance of harm to the Institute and its donors would tilt even further in its 

direction if Van Hollen is overturned. The Institute preserves that point in the event the en banc 

D.C. Circuit overturns the panel’s decision. See Mot. for Summ. J. at 9 n.3.

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hamper its ability to fund that speech from its general treasury, its interest is simply too slight to 

justify the restriction.

IV. Granting summary judgment to the Institute preserves the vast majority of 

regulation and disclosure for electioneering communications while providing 

narrow, as-applied relief for the Institute’s issue advocacy.

Ruling in favor of the Institute’s as-applied challenge would not prevent the regulation of 

most electioneering communications. Congress in fact anticipated constitutional issues like those 

raised here and provided a backup definition for electioneering communications—the so-called 

PASO (Promotes, Attacks, Supports, or Opposes) standard. That standard has been blessed by 

the Supreme Court and has proven useful to courts examining similar state statutes. Moreover, a 

ruling for the Institute will provide the Commission with an opportunity to adjust its regulations 

to provide better-tailored guidance to the regulated community.

a. Congress provided for a backup definition (PASO) in case the scope of 

“electioneering communications” regulation violated the First Amendment.

Under BCRA’s backup definition, any communication in the electioneering 

communications window that Promotes, Attacks, Supports, or Opposes (“PASO”) a candidate 

may be regulated “regardless of whether the communication expressly advocates a vote for or 

against a candidate.” 52 U.S.C. § 30104(f)(3)(A)(ii); see Mot. for Summary J. at 38. In short, 

even if the Institute wins this challenge, the overwhelming majority of material the Commission 

has an interest in regulating would remain firmly within its jurisdiction.

The PASO standard already enjoys the Supreme Court’s approval. McConnell, 540 U.S. 

at 170 n.64. Discussing a facial vagueness claim, the McConnell Court stated that “The words 

‘promote,’ ‘oppose,’ ‘attack,’ and ‘support’ clearly set forth the confines within which potential 

party speakers must act in order to avoid triggering the provision.” Id. 

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Moreover, the PASO standard has proven workable in the states. The First Circuit used a 

similar promotes or opposes construction to narrow an otherwise overbroad Maine law. See 

McKee, 649 F.3d at 62-63. As the First Circuit noted, such a standard “succeeds both in 

‘provid[ing] explicit standards for those who apply’ the provisions at issue here and in ensuring 

that persons of average intelligence will have reasonable notice of the provisions’ coverage.” Id. 

at 67 (citation omitted) (alteration in McKee). Other circuits have followed the McKee decision 

in approving similar PASO standards for other state campaign finance regimes. In Madigan, for 

example, the Seventh Circuit upheld an Illinois law using the PASO standard. 697 F.3d at 486. 

Similarly, and even more recently, the Second Circuit upheld Vermont’s PASO standard in a law 

regulating electioneering communications. Vt. Right to Life Comm, 758 F.3d at 128-29 

(comparing Vermont’s law with the federal PASO standard).

Indeed, one need only look to the effect, or lack thereof, that adoption of the PASO 

standard would have had on Citizens United. Those “pejorative” ads, Citizens United, 558 U.S. 

at 320, are precisely the types of campaign speech meant to be regulated under the PASO 

standard, as they attacked and opposed then-Senator Clinton. See Citizens United, 530 F. Supp. 

2d at 276 n.2-4 (setting forth ad scripts).

b. The FEC can, and has, implemented as-applied rulings distinguishing among 

different forms of speech and different types of speakers.

An as-applied ruling narrowing the field of political regulation would not be 

unprecedented and would not create havoc. The Commission has adjusted to such ruling before, 

with notable success—even in cases where the law did not provide a backup standard. Examples 

include new rules implementing WRTL II and the fact-specific ruling in MCFL.

In WRTL II, the Supreme Court examined a ban on speech by corporations during the 

electioneering communication window, 551 U.S. at 455-56, and set about separating “corporate 

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campaign speech or its functional equivalent” from “issue advocacy.”27 Id. at 457. The 

controlling opinion contrasted the “functional equivalent of express advocacy” with issue 

advocacy that merely mentions a candidate and prohibited FEC regulation of the latter category. 

Id. at 469-70.28

Within six months of the decision,29 the FEC promulgated rules giving effect to WRTL II

in analogous future circumstances. FEC, Electioneering Communications, 72 Fed. Reg. 72899, 

72900 (Dec. 26, 2007). After taking public testimony, the Commission created a “non-exclusive 

list of examples that will be considered to ‘mention’ an election, candidacy, political party, 

opposing candidate or voting by the general public” that could trigger electioneering 

communication regulation and disclosure. 72 Fed. Reg. at 72903. These rules successfully 

differentiated between “tag lines that suggest voting by the general public in elections, such as 

‘Vote. It’s important to your future,’” and issue speech “such as ‘ask Congressman Smith to 

support the Voting Rights Bill.’” Id.

30

The rulemaking after the Court’s MCFL ruling shows that the FEC’s ability to 

incorporate judicial reasoning after WRTL II was not an outlier, but instead a normal practice for 

the administrative agency. In MCFL the Supreme Court considered whether a nonprofit 

corporation could be constitutionally prohibited from creating a voter guide shortly before an 

 

27 The Institute asserts that “unambiguously campaign related” speech, including express 

advocacy and its functional equivalent, is distinct from issue advocacy that merely mentions a 

candidate. Issue advocacy has been protected from federal campaign finance law since Buckley.

28 Chief Justice Roberts’ WRTL II test for deciphering the functional equivalent of express 

advocacy was a plurality opinion on the narrowest grounds, but a five vote majority of the 

Supreme Court approved it in Citizens United. See 558 U.S. at 324-25; id. at 334-35.

29 WRTL II came down on June 25, 2007. 551 U.S. at 449.

30 Nor is the FEC likely to go beyond a successful as-applied challenge to damage the effective 

regulation of electioneering communications. In its rulemaking after WRTL II, the Commission 

was careful not to go beyond the scope of the Supreme Court’s holding in WRTL II. See 72 Fed. 

Reg. at 72901.

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election.31 479 U.S. at 241. In granting MCFL as-applied relief, the Court noted three key 

“features essential to [its] holding that [MCFL] may not constitutionally be bound by [52 U.S.C. 

§ 30118]’s restriction on independent spending.” Id. at 263-64. Subsequently, the Commission 

recognized the Court’s three-factor test and promulgated a rule for groups, “Qualifying

Nonprofit Corporations,” meeting that standard. FEC, Express Advocacy; Independent 

Expenditures; Corporate and Labor Organization Expenditures, 60 Fed. Reg. 35292, 35296 (July 

6, 1995) (applying MCFL, 479 U.S. at 264). 

Under either the PASO backup definition or this Court’s application of the 

“unambiguously campaign related” test, the FEC will have all the tools necessary to uphold the 

electioneering communications law where it regulates actual electioneering, while protecting the 

First Amendment right to discuss public policy without reporting to the government. 

Conclusion

Summary judgment should be granted to the Institute.

Dated: August 12, 2016

Respectfully submitted, 

s/ Allen Dickerson

Allen Dickerson (D.C. Bar No. 1003781)

Tyler Martinez (D.C. Bar No. 1022937) 

Center for Competitive Politics

124 S. West Street, Suite 201

Alexandria, Virginia 22314

Telephone: 703.894.6800

Facsimile: 703.894.6811

adickerson@campaignfreedom.org

tmartinez@campaignfreedom.org

Counsel for Plaintiff

 

31 At the time, federal law prohibited “corporations from using treasury funds to make an 

expenditure ‘in connection with’ any federal election, and require[d] that any expenditure for 

such purpose be financed by voluntary contributions to a separate segregated fund.” Id. (quoting 

52 U.S.C. § 30118). This provision of federal campaign finance law was found unconstitutional 

in Citizens United, 558 U.S. at 372.

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CERTIFICATE OF SERVICE

I hereby certify that I electronically filed the foregoing Independence Institute’s 

Consolidated Opposition to Defendant’s Cross-Motion for Summary Judgment and Reply in 

Support of Its Motion for Summary Judgment using the court’s CM/ECF system. A Notice of 

Docket Activity will be emailed to all registered attorneys currently participating in this case, 

constituting service on those attorneys:

For the Federal Election Commission:

Erin Chlopak

echlopak@fec.gov

Gregory Mueller

gmueller@fec.gov

Joseph Hebert

ghebert@campaignlegalcenter.org

For Amici Curiae Free Speech Defense and Education Fund, et al.

William Olson

wjo@mindspring.com

For Amici Curiae Campaign Legal Center, et al.

Joseph Hebert

ghebert@campaignlegalcenter.org

Dated: August 12, 2016

/s Allen Dickerson

Allen Dickerson

Case 1:14-cv-01500-CKK-PAM-APM Document 46 Filed 08/12/16 Page 34 of 34