United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 22, 2015 Decided March 1, 2016

No. 14-5249

INDEPENDENCE INSTITUTE, A COLORADO NONPROFIT 

CORPORATION,

APPELLANT

v.

FEDERAL ELECTION COMMISSION,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:14-cv-01500)

Allen Dickerson argued the cause for appellant. With 

him on the brief was Tyler Martinez. 

Herbert W. Titus, William J. Olson, John S. Miles, 

Jeremiah L. Morgan, and Robert J. Olson were on the brief for 

amici curiae Citizens United, et al. in support of appellant.

Greg J. Mueller, Attorney, Federal Election Commission, 

argued the cause for appellee. With him on the brief were 

Lisa J. Stevenson, Deputy General Counsel, Kevin Deeley, 

Acting Associate General Counsel, and Erin Chlopak, Acting 

Assistant General Counsel. Michael Columbo, Attorney, 

entered an appearance.

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J. Gerald Hebert, Lawrence M. Noble, Scott L. Nelson, 

Fred Wertheimer, Donald J. Simon, and Charles Fried were on 

the brief for amici curiae Campaign Legal Center, et al. in 

support of defendant-appellee. 

Before: GRIFFITH, KAVANAUGH, and WILKINS, Circuit 

Judges.

Opinion for the Court filed by Circuit Judge KAVANAUGH, 

with whom Circuit Judge GRIFFITH joins.

Dissenting opinion filed by Circuit Judge WILKINS.

KAVANAUGH, Circuit Judge: The Bipartisan Campaign 

Reform Act of 2002, known as BCRA or the McCain-Feingold 

Act, requires speakers who make “electioneering 

communications” to disclose some of their donors. An 

electioneering communication is a broadcast, cable, or satellite 

communication that refers to a candidate for federal office and

is aired within 60 days of a general election. See 52 U.S.C. 

§ 30104(f).

Independence Institute is a Section 501(c)(3) nonprofit 

organization located in Colorado. In 2014, the Institute

supported a proposed federal statute that would reform federal

sentencing. Independence Institute wanted to run a radio 

advertisement in favor of the proposed law. The 

advertisement would encourage citizens to express their 

support of the law to Colorado’s U.S. Senators, Mark Udall 

and Michael Bennet.

The Institute intended to air the advertisement in the fall of 

2014. At that time, however, Senator Udall was running for

re-election. The radio spot would therefore qualify as an 

electioneering communication within the meaning of BCRA. 

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As a result, Independence Institute would have to disclose

some of its donors.

Independence Institute says that 501(c)(3) nonprofit 

organizations possess a First Amendment right to air issue 

advertisements without disclosing their donors. 

Independence Institute therefore sued the FEC, arguing that 

BCRA’s disclosure requirement was unconstitutional as 

applied to this situation.

The Institute asked the District Court to convene a 

three-judge district court pursuant to the statutory provision 

that requires three-judge district courts for constitutional 

challenges to BCRA. See 52 U.S.C. § 30110 note. But the

District Court denied the Institute’s request for a three-judge 

district court. On the merits, the District Court held that 

Independence Institute’s claim was unavailing under 

McConnell v. FEC, 540 U.S. 93 (2003) and Citizens United v. 

FEC, 558 U.S. 310 (2010), which respectively upheld BCRA’s 

disclosure requirement against a facial challenge and against 

one particular as-applied challenge. See Independence 

Institute v. FEC, 70 F. Supp. 3d 502, 506-15 (D.D.C. 2014).

On appeal, Independence Institute argues that the District 

Court erred in denying the request for a three-judge district 

court. Our review of that question is de novo. See LaRouche 

v. Fowler, 152 F.3d 974, 981-86 (D.C. Cir. 1998).

* * *

On its face, BCRA requires that a three-judge district court

adjudicate Independence Institute’s First Amendment claim. 

The Act states that a constitutional challenge to one of BCRA’s

provisions “shall be heard by a 3-judge court convened 

pursuant to section 2284 of title 28.” 52 U.S.C. § 30110 note. 

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Section 2284 also says “shall”: A three-judge district court 

“shall be convened when otherwise required by Act of 

Congress,” such as BCRA. 28 U.S.C. § 2284.*

To be sure, Section 2284 is not absolute. It requires a 

three-judge district court “unless” the single district court 

judge “determines that three judges are not required.” Id. 

But in its recent decision in Shapiro v. McManus, the Supreme 

Court interpreted that language to mean that the single district 

court judge should determine only “whether the ‘request for 

three judges’ is made in a case covered by § 2284(a) – no more, 

no less.” 136 S. Ct. 450, 455 (2015), slip op. at 5.

Because Independence Institute’s complaint raises a First 

Amendment challenge to a provision of BCRA, Section 

2284(a) entitles it to a three-judge district court.

 

* In relevant part, the judicial review section of BCRA 

provides as follows: “(a) If any action is brought for declaratory or 

injunctive relief to challenge the constitutionality of any provision of 

this Act or any amendment made by this Act, the following rules 

shall apply: (1) The action shall be filed in the United States District 

Court for the District of Columbia and shall be heard by a 3-judge 

court convened pursuant to section 2284 of title 28, United States 

Code.” 52 U.S.C. § 30110 note (emphasis added). In turn, 28 

U.S.C. § 2284 provides in relevant part: “(a) A district court of 

three judges shall be convened when otherwise required by Act of 

Congress, or when an action is filed challenging the constitutionality 

of the apportionment of congressional districts or the apportionment 

of any statewide legislative body. (b) In any action required to be 

heard and determined by a district court of three judges under 

subsection (a) of this section, the composition and procedure of the 

court shall be as follows: (1) Upon the filing of a request for three 

judges, the judge to whom the request is presented shall, unless he 

determines that three judges are not required, immediately notify the 

chief judge of the circuit . . . .” 28 U.S.C. § 2284.

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The only remaining barrier to Independence Institute’s 

request for a three-judge district court is the general

jurisdictional requirement that a suit must raise a substantial 

federal question. As the Supreme Court explained in Shapiro: 

“Absent a substantial federal question, even a single-judge 

district court lacks jurisdiction, and a three-judge court is not 

required where the district court itself lacks jurisdiction of the 

complaint or the complaint is not justiciable in the federal 

courts.” Id. at 455, slip op. at 5-6 (internal quotation marks 

omitted).

But as the Shapiro Court stressed, the exception for 

insubstantial claims is narrow. It applies only when the case 

is “essentially fictitious, wholly insubstantial, obviously 

frivolous, and obviously without merit.” Id. at 456, slip op. at 

7 (quoting Goosby v. Osser, 409 U.S. 512, 518 (1973))

(internal quotation marks omitted). The Supreme Court has 

emphasized, moreover, that “the adverbs” are “no mere 

throwaways”: The “limiting words ‘wholly’ and ‘obviously’ 

have cogent legal significance.” Id. (quoting Goosby, 409 

U.S. at 518) (internal quotation marks omitted).

The bar that a complaint must clear is “low.” Id. at 456, 

slip op. at 7. “Constitutional claims will not lightly be found 

insubstantial for purposes of the three-judge-court statute.” 

Id. at 455, slip op. at 6 (alterations and internal quotation marks 

omitted).

The FEC argues that Independence Institute’s case fails to 

clear even that low bar because, according to the FEC,

McConnell and Citizens United render Independence 

Institute’s First Amendment claim “essentially fictitious, 

wholly insubstantial, obviously frivolous, and obviously 

without merit.” Id. at 456, slip op. at 7; see McConnell v. 

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FEC, 540 U.S. 93, 196-99 (2003); Citizens United v. FEC, 558 

U.S. 310, 366-69 (2010). We disagree.

BCRA requires speakers who make electioneering 

communications to disclose some of their donors. 52 U.S.C. 

§ 30104. In McConnell, the Supreme Court rejected a facial 

challenge to BCRA’s disclosure requirement. See 

McConnell, 540 U.S. at 196-99. But the Court allowed future

as-applied challenges. Id. at 199. In Citizens United, the 

Supreme Court rejected one such as-applied challenge, which 

attempted to limit BCRA’s disclosure requirement to those 

electioneering communications that constitute express 

advocacy or the functional equivalent of express advocacy for 

a candidate. See Citizens United, 558 U.S. at 368-69.

In this case, Independence Institute says that it is raising a 

different as-applied challenge to BCRA, and it asserts that 

Citizens United therefore is not controlling here. 

Independence Institute seeks to distinguish Citizens United on 

the ground that Independence Institute is a 501(c)(3) charitable 

nonprofit organization, whereas Citizens United was a 

501(c)(4) advocacy organization. According to Independence 

Institute, 501(c)(3) charitable groups serve different purposes 

and have greater interests in privacy than do 501(c)(4)

advocacy groups. It argues, moreover, that the Government 

has less of an interest in publicly identifying the donors to 

501(c)(3) groups. Independence Institute contends that the 

First Amendment therefore protects it against BCRA’s 

disclosure requirement.

In Citizens United, the Supreme Court 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. See 558 U.S. at 369. And the FEC 

cites no precedent from the Supreme Court (or any other court)

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rejecting the argument advanced here by Independence 

Institute. The nature of our system of legal precedent is that 

later cases often distinguish prior cases based on sometimes 

slight differences. See, e.g., Arizona Christian School Tuition 

Org. v. Winn, 563 U.S. 125 (2011); Michigan v. Bryant, 562 

U.S. 344 (2011); see generally Richard M. Re, Narrowing 

Precedent in the Supreme Court, 114 COLUM. L. REV. 1861 

(2014). Here, we cannot say that Independence Institute’s 

attempt to advance its as-applied First Amendment challenge is 

“essentially fictitious, wholly insubstantial, obviously 

frivolous, and obviously without merit.” Shapiro, 136 S. Ct. 

at 456, slip op. at 7. That is not to suggest that Independence 

Institute’s argument is a winner. Independence Institute’s 

501(c)(3) argument may or may not prevail on the merits, but 

Section 2284 “entitles” the Institute to make its case “before a 

three-judge district court.” Id.

Independence Institute also contends that the First 

Amendment bars compelled disclosure of donors unless the 

electioneering communication is unambiguously 

campaign-related. The FEC responds that McConnell and 

Citizens United squarely rejected that argument. Cf.

Republican National Committee v. FEC, 130 S. Ct. 3544 

(2010), affirming Republican National Committee v. FEC, 698 

F. Supp. 2d 150, 156-58 (D.D.C. 2010) (rejecting this

distinction of McConnell and Citizens United). We do not 

address that argument. Because Independence Institute has 

advanced at least one argument – the 501(c)(3) argument – that 

is not “essentially fictitious, wholly insubstantial, obviously 

frivolous, and obviously without merit,” the case must proceed 

to a three-judge court. Shapiro, 136 S. Ct. at 456, slip op. at 7. 

When a case falls within Section 2284 and requires a 

three-judge district court, “a single judge shall not . . . enter 

judgment on the merits” of any claim. 28 U.S.C. 

§ 2284(b)(3); see Shapiro, 136 S. Ct. at 455, slip op. at 5.

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* * *

Independence Institute is entitled to make its case to a 

three-judge district court. Therefore, we reverse the judgment 

of the District Court denying the request for a three-judge 

district court, vacate the judgment of the District Court in favor 

of the FEC, and remand the case to the District Court with 

directions for it to initiate the procedures to convene a 

three-judge district court.

So ordered.

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WILKINS, Circuit Judge, dissenting: Independence 

Institute believes that the definition of “electioneering 

communication” under the Bipartisan Campaign Reform Act 

of 2002 (“BCRA”), as well as the Act’s disclosure provisions

for electioneering communications, is unconstitutionally 

overbroad. In my view, a misreading of Buckley v. Valeo,

424 U.S. 1 (1976), underpins and is fatal to both of these

claims. As a result, I disagree that the several immaterial 

factual distinctions that the Institute offers to distinguish its 

challenge from that in Citizens United v. FEC, 558 U.S. 310 

(2010), such as its tax status, can transform its case into one 

presenting a substantial constitutional question. See Shapiro 

v. McManus, 136 S. Ct. 450, 455-56 (2015).

The Institute’s core contention in this lawsuit is that 

Buckley created an “unambiguously campaign related” gloss 

on the definition of electioneering communications. In its 

view, the only speech that should be considered an 

electioneering communication, and therefore trigger the 

BCRA’s reporting and disclosure requirements, is speech that 

is “unambiguously related” to a campaign. The Institute filed 

a two-count complaint, and this reading of Buckley is central 

to both causes of action. In its first count, the Institute 

premised its attack on the definition of electioneering 

communication on “the dichotomy between issue speech and 

political speech in Buckley,” Compl. ¶ 101, and it sought a 

declaration that its proposed advertisement does not constitute 

an “electioneering communication” under the BCRA, as 

properly defined, id. ¶¶ 113-114. In its second count, 

repeatedly citing Buckley, id. ¶¶ 120-122, the Institute 

attacked the BCRA disclosure requirements, alleging that “if 

a group does not have ‘the major purpose’ of political 

activity, only communications that ‘expressly advocate the 

election or defeat of a clearly identified candidate’ are subject 

to disclosure,” id. ¶ 122 (citing Buckley, 424 U.S. at 80). 

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Accordingly, the Institute made Buckley its centerpiece in 

its briefing before the district court. It urged that the BCRA’s 

definition of electioneering communication “impermissibly 

blurs the line between candidate advocacy, which may be 

regulated, and issue advocacy, which generally cannot.” See

Mot. Prelim. Inj. 22 (citing Buckley, 424 U.S. at 42-44). The 

Institute’s argument on disclosure was that no Supreme Court 

case since Buckley did away with the “unambiguously 

campaign related standard,” and that in particular “[t]he 

disclosure upheld in Citizens United was for donors who 

explicitly contributed for a communication that is the 

functional equivalent of express advocacy—not genuine issue 

speech.” Id. at 14; see also Appellant Br. 34 (“Neither 

Citizens United nor McConnell modified Buckley’s 

‘unambiguously campaign related’ limitation.”). 

There’s only one problem – the Institute’s reading of 

Buckley is squarely foreclosed by subsequent Supreme Court 

precedent. In McConnell v. FEC, the Court called the

argument that Buckley’s constitutional holding requires a 

gloss on the BRCA’s definition of “electioneering 

communication” to permit “so-called issue advocacy” a 

“misapprehen[sion] [of] our prior decisions,” and rejected the 

idea that “Buckley drew a constitutionally mandated line 

between express advocacy and so-called issue advocacy.” 

540 U.S. 93, 190 (2003), overruled on other grounds by 

Citizens United v. FEC, 558 U.S. 310 (2010); id. (“[T]he 

express advocacy restriction was an endpoint of statutory 

interpretation, not a first principle of constitutional law.”). 

More troublingly, the Institute asks us to overlook the 

fact that the Supreme Court expressly rejected its broader

argument in Citizens United. There, the Court said: “The 

principal opinion in [FEC v. Wisconsin Right to Life, Inc., 551 

U.S. 449 (2007)] limited 2 U.S.C. § 441b’s restrictions on 

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independent expenditures to express advocacy and its 

functional equivalent. Citizens United seeks to import a 

similar distinction into BCRA's disclosure requirements. We 

reject this contention.” Citizens United, 558 U.S. at 368-69

(citation omitted) (emphasis added).

I do not see how this lawsuit even “clears Goosby’s low 

bar” of substantiality. Shapiro, 136 S. Ct. at 456 (citing 

Goosby v. Osser, 409 U.S. 512 (1973)). Both claims raised 

by the Institute rely upon the contention that the BCRA’s 

disclosure provisions should only apply to unambiguously 

campaign related speech, but the “unsoundness [of that 

argument] so clearly results from the previous decisions of 

[the Supreme] Court as to foreclose the subject and leave no 

room for the inference that the questions sought to be raised 

can be the subject of controversy.” Goosby, 409 U.S. at 519 

(quoting Ex parte Poresky, 290 U.S. 30, 32 (1933), quoting in 

turn from Hannis Distilling Co. v. Baltimore, 216 U.S. 285, 

288 (1910)). 

There is an important difference between a plaintiff who 

offers a novel argument seeking to extend a holding, dictum, 

or even a suggestion from a previous majority or separate 

opinion, and a plaintiff who repackages an already foreclosed 

legal theory. The substantial federal question standard 

charges us with distinguishing between the two. The majority 

opinion evades the question of whether the “unambiguously 

campaign related” argument is insubstantial, and focuses

instead on the factual distinction of the Institute’s tax status. 

Majority Op. at 6-8. But what the Institute has never 

explained in its briefing, and what the majority does not 

explain in its opinion, is how the Institute can prevail on 

either of its causes of action without prevailing on its core 

contention that electioneering communications under the 

BCRA must be limited to speech that is “unambiguously 

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campaign related.” Without such an explanation, the factual 

distinctions being raised are of no consequence, and the 

claims remain “frivolous or immaterial.” Steel Co. v. Citizens 

for Better Environment, 523 U. S. 83, 89 (1998).

I would dismiss this case for lack of jurisdiction. I 

dissent.

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