No. 16-743

In the

Supreme Court of the United States

On Appeal from the United States Distr

for the District of 

BRIEF OF THE CHAMBER OF COMMERCE 

OF THE UNITED STATES AS AMICUS 

CURIAE IN SUPPORT OF APPELLANT’S 

JURISDICTIONAL STATEMENT

270290

INDEPENDENCE INSTITUTE,

Appellant,

v.

FEDERAL ELECTION COMMISSION,

Appellee.

Lily Fu Cl

Ryan Meyer

U.S. Chamber of

1615 H Street, NW

Washington, DC 20062

(202) 463-5576

Kate Comerford

Warren Post

U.S. Cha

Litigation Center,

1615 H Street, NW

Washington, DC 20062

(202) 463-5337

Jan Witold B

Counsel of Record

Thomas W. K

Caleb P. Bu

Wiley Rein 

1776 K Street, NW

Washington, DC 20006

(202) 719-7000

jbaran@wileyrein.com

Counsel for Amicus Curiae

January 9, 2017
i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS .

TABLE OF CITED AUTHORITIES . 

INTEREST OF AMICUS CURIAE 

INTRODUCTION & SUMMARY 

OF THE ARGUMENT 

ARGUMENT 

I. This Appeal Presents A Substantial First 

Amendment Challenge To An Expansive 

Application Of BCRA’s Disclosure 

Provision To Policy Advocacy 

A. This Court has never removed policy 

advocacy from the full protections 

of the First Amendment 

B. BCRA’s disclosure requirement 

violates the First Amendment as 

applied to policy advocacy, even 

under “exacting scrutiny” .

II.	 ThisCaseRaisesIssuesOfBroadSignificance

That Warrant Immediate Review .

CONCLUSION .
ii

TABLE OF CITED AUTHORITIES

Page

CASES

Am. Tradition P’ship, Inc. v. Bullock, 

132 S. Ct. 2490 (2012) 

Bd. of Trustees of State Univ. of N.Y. v. Fox, 

492 U.S. 469 (1989) .

Buckley v. Valeo, 

424 U.S. 1 (1976) . . . 

Citizens United v. FEC, 

558 U.S. 310 (2010) . . . 

Connick v. Myers, 

461 U.S. 138 (1983) 

Ctr. for Individual Freedom v. Madigan, 

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

Davis v. FEC, 

554 U.S. 724 (2008) . . .

Family PAC v. McKenna, 

685 F.3d 800 (9th Cir. 2012) .

FEC v. Mass. Citizens for Life, Inc., 

479 U.S. 238 (1986) . . 

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

551 U.S. 449 (2007) . . 
iii

Cited Authorities

Page

First Nat’l Bank of Boston v. Bellotti, 

435 U.S. 765 (1978) . . .

Garrison v. Louisiana, 

379 U.S. 64 (1964) 

Hicks v. Miranda, 

422 U.S. 332 (1975) 

Independence Inst. v. Williams, 

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

John Doe No. 1 v. Reed, 

561 U.S. 186 (2010)  

Majors v. Abell, 

361 F.3d 349 (7th Cir. 2004) 

McConnell v. FEC, 

540 U.S. 93 (2003) . . . 

McCutcheon v. FEC, 

134 S. Ct. 1434 (2014) . . .

McIntyre v. Ohio Elections Comm’n, 

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

N.Y. Times Co. v. Sullivan, 

376 U.S. 254 (1964) .

NAACP v. Button, 

371 U.S. 415 (1963)  .
iv

Cited Authorities

Page

NAACP v. State of Alabama ex rel. Patterson, 

357 U.S. 449 (1958) . .

Republican Party of Minn. v. White, 

536 U.S. 765 (2002) 

Richmond Newspapers v. Virginia, 

448 U.S. 555 (1980) 

Schenck v. Pro-Choice Network, 

519 U.S. 357 (1997) 

Thornhill v. Alabama,

310 U.S. 88 (1940)  

Va. State Bd. of Pharmacy v. 

Va. Citizens Consumer Council, Inc., 

425 U.S. 748 (1976) 

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

546 U.S. 410 (2006) 

STATUTES AND OTHER AUTHORITIES

52 U.S.C. § 30104(f)(2)(E) .

52 U.S.C. § 30104(f) . . . 

52 U.S.C. § 30104(f)(1) .
v

Cited Authorities

Page

52 U.S.C. § 30104(f)(3)(A)(i)(I)  .

52 U.S.C. § 30104(f)(3)(A)(i)(II) . . . 

145 Cong. Rec. S12575 (daily ed. Oct. 14, 1999)  .

Ala. Code § 17-5-2(a)(6) .

Mass. Gen. Laws ch. 55, § 1 . . . . . . . . . . . . . . . . . . . . . . .20

Mass. Gen. Laws ch. 55, § 18F .

Md. Code, Elec. Law § 13-307(a)(3)(i)  .

N.Y. Comp. Codes R. & Regs. tit. 19, § 938.3 (2016)  .

Wash. Rev. Code § 42.17A.750 .

Wash. Rev. Code § 42.17A.765(5) .

Elizabeth Mendes, Amer icans Down on 

Congress, OK with Own Representative, 

Gallup (May 9, 201

Jesse Holcomb, How the Lehman Bros. Crisis 

Impacted the 2008 Presidential Race, 

Pew Research Ctr. (Sept. 19, 201

Kendall Breitman, Po l l : Ma jo r i t y o f 

Millennials Can’t Name a Senator from 

Their Home State, Politico (Feb. 3, 201
vi

Cited Authorities

Page

S. Shapiro, K. Geller, T. Bishop, E. Hartnett, & 

D. Himmelfarb, Supreme Court

(10th ed. 2013) 

Statement of Candidacy of Lloyd Doggett for the

2016 Election (filed Nov. 5, 2014)  .
1

INTEREST OF AMICUS CURIAE1

The Chamber of Commerce of the United States of 

America (“Chamber”) is the world’s largest federation 

of businesses and business associations. It represents 

300,000 direct members and indirectly represents the 

interests of more than three million companies and 

professional organizations of every size, in every industry 

sector, and from every region of the nation. The Chamber 

advocates for its members’ interests before Congress, 

the executive branch, and the courts, and it regularly 

files amicus curiae briefs in cases raising issues of vital 

importance to the business community. 

The Chamber has a strong interest in this important 

case. The Chamber and its members support policy 

advocacy on a broad range of issues at the federal and state 

level. That advocacy often concerns pending legislation, 

and it often urges the public to contact their legislators. 

The district court’s decision, however, subjects all that 

advocacy to the onerous disclosure requirements of the 

Bipartisan Campaign Reform Act (“BCRA”), 52 U.S.C. 

§ 30104(f). This is a serious concern for the Chamber, its 

affiliates, and its members.

Without anonymity, Chamber members and donors 

will be deterred from supporting policy advocacy—to 

1. No counsel for a party authored this brief in whole or in 

part, and no such counsel or party made a monetary contribution 

intended to fund the preparation or submission of this brief. No 

person, other than amicus curiae, its members, and its counsel, 

made a monetary contribution that was intended to fund preparing 

or submitting this brief. The parties have received notice and 

consented to the filing of this brief.
2

the detriment of the public and the interest of healthy 

democratic debate. Perhaps worse, the decision below 

will encourage states to impose disclosure requirements 

based on tangential connection to candidates or elections, 

a worrying possibility given that states have been even 

more adventurous than Congress in creating onerous 

disclosure requirements. For these reasons, the Chamber 

supports the Independence Institute’s request for the 

Court to note probable jurisdiction and set this appeal 

for oral argument.

INTRODUCTION & SUMMARY 

OF THE ARGUMENT

The Court notes probable jurisdiction in direct 

appeals and grants plenary review so long as the question 

is “a substantial one.” Hicks v. Miranda, 422 U.S. 332, 344 

(1975). That standard is not demanding. Plenary review is 

warranted unless “after reading the condensed arguments 

presented by counsel in the jurisdictional statement and 

the opposing motion, as well as the opinion below, the 

Court can reasonably conclude that there is so little doubt 

as to how the case will be decided that oral argument and 

further briefing would be a waste of time.” S. Shapiro, K.

Geller, T. Bishop, E. Hartnett, & D. Himmelfarb, Sup

Court Practice 304 (10th ed. 20

The Court should grant plenary review. This appeal 

involves an application of BCRA’s disclosure requirement 

to an “electioneering communication” that is not related 

to any election. The advertisement at issue urges viewers 

to contact both of Colorado’s senators to urge them to 

support pending legislation. One of them, Mark Udall, was 

seeking reelection within 60 days of the advertisement’s 
3

planned broadcast. The advertisement otherwise made 

no reference to any election, campaign, or voting. See 

Jurisdictional Statement (“JS”) 5-7. Thus, the Institute’s 

advertisement is the archetype of policy advocacy—public 

discourse that goes to the heart of the right to free speech 

that the First Amendment protects.

Yet the district court rejected the Institute’s asapplied challenge to BCRA’s disclosure requirement, 52 

U.S.C. § 30104(f). The district court read this Court’s 

precedent as broadly rejecting any distinction between 

speech that advocates particular policies and speech that 

supports or opposes candidates for election. See JS App. 

19-29. So long as an advertisement is covered by BCRA—

i.e., so long as it costs at least $10,000 to run and refers to 

a candidate by name within 60 days of an election (or 30 

days of a primary)—Congress can constitutionally force 

contributors to disclose their identities. JS App. 22. Such 

advertisements are always election-related, in the district 

court’s view, because “linking candidates with proposed 

legislation” can have an “electoral impact” and because 

urging constituents to contact their elected representatives 

“implies” thatthe official seeking reelection “is not already

on board” with the policy. JS App. 25. Furthermore, 

because BCRA’s disclosure requirement “‘‘impose[s] no 

ceiling on campaign related activities,’” and “‘do[es] not 

prevent anyone from speaking,’” it is always narrowly 

tailored. Id. at 31 (quoting Citizens United v. FEC, 558 

U.S. 310, 366 (2010)).

The district court’s analysis is subject to substantial 

doubt and warrants this Court’s review:
4

First, the decision below obliterates the distinction 

between campaign speech and policy advocacy. From 

the Founding, all speech on matters of public concern 

has been subject to the most rigorous First Amendment 

protection. Unfortunately, the Court has abandoned that 

venerable tradition in the context of campaign speech out 

of concern for quid pro quo corruption. In recognition of 

the danger posed to political speech, though, the Court 

has confined that rationale to the narrowest category

of speech possible; policy advocacy that is marginally 

connected to campaigns receives full protection. The same 

holds true for disclosure requirements. While disclosure 

laws may sweep slightly more broadly than substantive 

restrictions, the Court has upheld them only as applied to 

advertisements that are unambiguously election-related.

In so doing, the Court appropriately has recognized 

“that the interests that justify the regulation of campaign 

speech might not apply to the regulation of genuine issue 

ads.” McConnell v. FEC, 540 U.S. 93, 206 n.88 (2003). The 

district court ignored that admonition, however. Indeed, it 

applied something akin to rational-basis review instead of 

exacting scrutiny. In the district court’s view, the public’s 

generic interest in information trumps the speaker’s right 

to anonymity so long as a candidate’s name is mentioned 

near an election. It ignored that the interests which made 

BCRA’s disclosure requirement avoid facial invalidity—

anticorruption, anticircumvention, and information about 

campaign speech—are entirely absent in the context of a 

genuine issue advertisement like the Institute’s. Either 

policy advocacy is entitled to heightened First Amendment 

protection against disclosure laws, or the district court’s 

ruling is correct. It cannot be both. 
5

Second, the district court’s uncritical acceptance of 

disclosure requirements has no limiting principle. The 

First Amendment, according to the district court, allows 

Congress to require full-blown disclosure based on the 

most tangential of connections to an election: the mere 

mention of a legislator’s name who also happens to be 

seeking reelection. The consequences for federal elections 

are dire. Policy advocates can either watch their money 

dry up, or censor their speech by omitting information that 

tells constituents how to achieve their goals, by staying 

silent whenever issues arise during campaign season, or 

by running their advertisements when the public is not 

paying attention. But the consequences for state elections 

could be worse. The district court’s decision, and similar 

decisions, send a message to states that no disclosure 

requirement, no matter how onerous, will violate the First 

Amendment. As states continue to pass laws that target 

issue advocacy under the guise of regulating “election 

speech,” that is the wrong message to send, and this is 

the wrong time to send it. This Court should intervene.

ARGUMENT

This Court should note probable jurisdiction for two 

reasons. First, the Institute’s as-applied challenge to the 

constitutionality of BCRA is compelling. In rejecting it, 

the district court failed to credit the important distinction 

between restrictions on election-related speech (exacting 

scrutiny) and restrictions on policy advocacy (strict 

scrutiny). Even under exacting scrutiny, the district 

court erred by upholding BCRA’s disclosure requirement 

even though none of its purported goals is meaningfully 

furthered when applied to policy advocacy. Second, the 

district court’s decision gives a constitutional pass to every 
6

disclosure requirement that has even a remote connection 

to an election or candidate. The ruling sets a dangerous 

precedent that will substantially chill core political speech 

at a time when states are passing ever-more-restrictive 

disclosure requirements.

I. This Appeal Presents A Substantial First Amendment 

Challenge To An Expansive Application Of BCRA’s 

Disclosure Provision To Policy Advocacy.

A. This Court has never removed policy advocacy 

from the full protections of the First 

Amendment.

This Court has always understood that speech “on 

matters of public concern” is one of the “classic forms 

of speech that lie at the heart of the First Amendment.”

Schenck v. Pro-Choice Network, 519 U.S. 357, 377 (1997). 

Uninhibited debate on important policy issues is crucial. 

The clash of ideas in the public square is what ignites 

democracy; “it has a structural role to play in securing 

and fostering our republican system of self-government.” 

Richmond Newspapers v. Virginia, 448 U.S. 555, 587 

(1980). At bottom, the right to speak freely “concerning 

public affairs is more than self-expression; it is the essence 

of self-government.” Garrison v. Louisiana, 379 U.S. 64, 

74-75 (1964).

Speech “on any subject, cultural, philosophical, or 

political” thus is entitled to the utmost protection from 

government interference. Va. State Bd. of Pharmacy 

v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 

761 (1976); see also Connick v. Myers, 461 U.S. 138, 145 

(1983) (holding that “speech on public issues occupies the 
7

highest rung of the hierarchy of First Amendment values, 

and is entitled to special protection”). In other words, 

government regulation of political speech—speech “about 

which information is needed or appropriate to enable 

members of society to cope with the exigencies of their 

period,” Thornhill v. Alabama, 310 U.S. 88, 102 (1940)—

is subject to strict scrutiny. The government must show 

that the burdens on political speech are both necessary 

and narrowly tailored to satisfy a compelling government 

interest. See Citizens United, 558 U.S. at 340; FEC v. Wis. 

Right to Life, Inc., 551 U.S. 449, 464 (2007) (op. of Roberts, 

C.J.) (“WRTL II”).

In the context of regulating elections, however, the 

Court has tolerated greater interference with political 

speech than the First Amendment ought to allow. See 

Buckley v. Valeo, 424 U.S. 1 (1976); McConnell, 540 

U.S. 93.2 To square that circle, the Court has held that 

there is “a ‘sufficiently important’ governmental interest

in ‘the prevention of corruption and the appearance of 

corruption’” out of concern that “large contributions could 

be given ‘to secure a political quid pro quo.’” Citizens 

United, 558 U.S. at 345 (quoting Buckley, 424 U.S. at 

26). But the Court has ensured that these interests are 

not wielded expansively to censor political speech. Where 

2. The Chamber has consistently taken the position that the 

freedom of speech deserves the same rigorous protection in the 

context of elections that it does in other contexts. See, e.g., Am. 

Tradition P’ship, Inc. v. Bullock, 132 S. Ct. 2490 (2012) (amicus); 

Citizens United v. FEC, 558 U.S. 310 (2010) (amicus); Wis. Right 

to Life, Inc. v. FEC, 546 U.S. 410 (2006) (amicus); McConnell v. 

FEC, 540 U.S. 93 (2003) (party); Republican Party of Minn. v. 

White, 536 U.S. 765 (2002) (amicus); FEC v. Mass. Citizens for 

Life, Inc., 479 U.S. 238 (1986) (amicus).
8

a restriction on political speech has been divorced from 

the corruption rationale, it has not been sustained. See 

id. at 361 (“An outright ban on corporate political speech 

during the critical preelection period is not a permissible 

remedy. Here Congress has created categorical bans on 

speech that are asymmetrical to preventing quid pro quo

corruption.”).

The Court has extended that line of reasoning to 

election-related disclosure laws. See id. at 369. At least 

in some applications, such laws complement substantive 

restrictions on campaign speech by advancing the 

“important state interests” of “providing the electorate 

with information, deterring actual corruption and avoiding 

any appearance thereof, and gathering data necessary 

to enforce more substantive electioneering restrictions.” 

McConnell, 540 U.S. at 196; see also John Doe No. 1 

v. Reed, 561 U.S. 186, 191 (2010) (upholding state law 

requiring disclosure of referendum petitions as advancing 

Washington’s “interest in preserving the integrity of the 

electoral process”). Here too, though, the Court has been 

careful to ensure that election-related interests are not 

misused to criminalize anonymous policy advocacy. JS 

15-21.

Indeed, there is no doubt that such laws would be 

unconstitutional outside the election setting. See Majors 

v. Abell, 361 F.3d 349, 355-56 (7th Cir. 2004) (Easterbrook, 

J., dubitante). In NAACP v. State of Alabama ex rel. 

Patterson, 357 U.S. 449 (1958), for example, the Court 

famously defended the NAACP’s First Amendment right 

to protect the anonymity of its members. Disclosure would 

have imposed “a substantial restraint upon the exercise 

by [the NAACP’s] members of their right to freedom of 
9

association.” Id. at 462. Though the decision emphasized 

“that on past occasions revelation of the identity of its 

rank-and-file members has exposed these members to

economic reprisal, loss of employment, threat of physical 

coercion, and other manifestations of public hostility,” id., 

the Court more broadly recognized the “deterrent effect 

on the free enjoyment of the right to associate which 

disclosure of membership lists is likely to have,” id. at 466.

The Court again defended the First Amendment 

right to anonymous speech in McIntyre v. Ohio Elections 

Comm’n, 514 U.S. 334 (1995). Ohio’s ban on distribution 

of anonymous campaign literature was unconstitutional 

because “the interest in having anonymous works enter 

the marketplace of ideas unquestionably outweighs any 

public interest in requiring disclosure as a condition 

of entry.” Id. at 342. Nor was the law saved because it 

targeted only “unsigned documents designed to influence

voters in an election.” Id. at 344. To the contrary, as the 

Court had “explained on many occasions, the category of 

speech regulated by the Ohio statute occupies the core of 

the protection afforded by the First Amendment.” Id. at 

346. Furthermore, “[t]hat this advocacy occurred in the 

heat of a controversial referendum vote only strengthens 

the protection afforded to Mrs. McIntyre’s expression: 

Urgent, important, and effective speech can be no less 

protected than impotent speech, lest the right to speak 

be relegated to those instances when it is least needed. 

No form of speech is entitled to greater constitutional 

protection than Mrs. McIntyre’s.” Id. at 347 (internal 

citation omitted).

As cases such as NAACP and McIntyre underscore, 

the Court has validated the government’s election-related 
10

interest in disclosure only when the law “shed[s] the light 

of publicity on spending that is unambiguously campaign 

related.” Buckley, 424 U.S. at 81. That does not mean 

that legislatures lack the authority to redress efforts to 

evade restrictions directed at campaign speech. Indeed, 

Congress confronted the problem posed by “sham issue 

ads” that, although “functionally equivalent” to express 

candidate advocacy, lacked the “magic words” Buckley 

required. McConnell, 540 U.S. at 193. By regulating 

“electioneering communications,” 52 U.S.C. § 30104(f), 

federal law now subjects speech that is “‘the functional 

equivalent of express advocacy’ for or against a specific

candidate” to the same restrictions as express advocacy. 

Citizens United, 558 U.S. at 324 (quoting McConnell, 540 

U.S. at 206). The Court has afforded Congress similar 

latitude in keeping “independent groups” from “running 

election-related advertisements ‘while hiding behind 

dubious and misleading names.’” Id. at 367 (quoting 

McConnell, 540 U.S. at 197) (emphasis added). Therefore, 

although disclosure laws are not strictly “limited to speech 

that is the functional equivalent of express advocacy,” id.

at 369, they have been upheld “based on a governmental 

interest in ‘providing the electorate with information’ 

about the sources of election-related spending,” id. at 

367 (quoting Buckley, 412 U.S. at 66) (alteration omitted; 

emphasis added).

The Court is thus presented with a substantial 

question: whether the line between campaign speech 

and policy advocacy continues to have constitutional 

significance in the disclosure context. There is every

reason to believe that it should. The Court has held that 

as-applied challenges to disclosure laws will be heard, 

and that disclosure is a significant burden on speech.
11

See Buckley, 424 U.S. at 64; FEC v. Mass. Citizens for 

Life, Inc., 479 U.S. 238, 254 (1986). The Court also has 

emphasized that speech restrictions are on especially 

shaky First Amendment footing when it comes to advocacy 

that is designed to “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. 

Anticipating this very case, then, the Court has 

cautioned “that the interests that justify the regulation 

of campaign speech might not apply to the regulation of 

genuine issue ads.” McConnell, 540 U.S. at 206 n.88. Yet 

the lower courts—including the district court here—have 

bulldozed this distinction. In short, there is a substantial 

constitutional issue whether the First Amendment right to 

engage in policy advocacy directed at lawmakers triggers 

Congress’s authority to impose disclosure requirements 

simply because this political speech occurs in proximity to 

a federal election. This Court should grant plenary review 

to decide this important question.

B. BCRA’s disclosure requirement violates the 

First Amendment as applied to policy advocacy, 

even under “exacting scrutiny.”

Although BCRA’s disclosure requirement should be 

subject to strict scrutiny as it applies to the facts of this 

case, the law cannot withstand even “exacting scrutiny.” 

Exacting scrutiny requires “a sufficient relation between

the disclosure requirement and a sufficiently important

governmental interest.” Citizens United, 558 U.S. at 366-

67. This standard is not feeble or perfunctory; it is a “strict 

test.” Buckley, 424 U.S. at 66. The government must prove 
12

“a fit that . . . employs not necessarily the least restrictive 

means but . . . a means narrowly tailored to achieve the 

desired objective.” McCutcheon v. FEC, 134 S. Ct. 1434, 

1456-57 (2014) (second alteration in original) (quoting Bd. 

of Trustees of State Univ. of N.Y. v. Fox, 492 U.S. 469, 480 

(1989)). That standard is not easily met.

Yet the scrutiny the district court applied (if it can 

be called “scrutiny” at all) was anything but “exacting.” 

The court concluded that BCRA’s disclosure requirement, 

as applied to policy advocacy that merely mentions the 

name of a sitting legislator who happens to be running for 

reelection, furthers all three interests that this Court has 

recognized for disclosure requirements: anticorruption, 

anticircumvention (specifically, the ban on electioneering

communications by foreigners), and access to information. 

JS App. 30-33. This analysis does not pass muster.

To begin, the anticorruption interest is not possibly 

implicated. Policy advocacy is about “issues, not candidates 

for public office. The risk of corruption perceived in cases

involving candidate elections simply is not present . . . .” 

First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 790 

(1978) (citation omitted). If independent expenditures 

that expressly advocate for the election or defeat of a 

candidate “do not give rise to corruption or the appearance 

of corruption,” Citizens United, 558 U.S. at 357, a fortiori

policy advocacy that merely mentions a candidate for office

does not either.

Nor is the anticircumvention interest in preventing 

foreign influence implicated. This Court has never 

held that the government has a compelling interest in 

preventing foreign individuals from engaging in policy 
13

advocacy that happens to coincide with an election. 

In any event, BCRA’s disclosure requirement “is not 

limited to corporations or associations that were created 

in foreign countries or funded predominately by foreign 

shareholders. [The statute] therefore would be overbroad 

even if . . . the Government has a compelling interest in 

limiting foreign influence over our political process.” Id.

at 362.

The informational interest identified by the district

court does not fit this case either. This Court has always

described the public’s “informational interest” in 

candidate-specific terms. See, e.g., Buckley, 424 U.S. at 

66-67 (describing the informational interest as “aid[ing] 

the voters in evaluating those who seek federal office,”

“allow[ing] voters to place each candidate in the political 

spectrum more precisely,” and “alert[ing] the voter to 

the interests to which a candidate is most likely to be 

responsive . . . in office”); Citizens United, 558 U.S. at 369 

(“[T]he public has an interest in knowing who is speaking 

about a candidate shortly before an election.” (emphasis 

added)); McConnell, 540 U.S. at 206 n.88 (noting that 

“the interests that justify the regulation of campaign 

speech might not apply to the regulation of genuine issue 

ads”). Because genuine policy advocacy is not related to 

an election and does not express support or opposition to 

a candidate, these interests do not apply. All that is left, 

then, is the voters’ undifferentiated interest in knowing 

who is behind any statement about policy near an election. 

But that interest is insufficient to overcome the speaker’s

interest in anonymity. See McIntyre, 514 U.S. at 342.

The district court speculated that advertisements like 

the Institute’s—which urge the public to contact their 
14

representatives about a specific policy issue—necessarily

express electoral opposition because they “impl[y] that the 

candidate is not already on board” with the policy. JS App. 

25. That is not true, as a matter of logic (the candidate’s 

opponent might not be on board either). And it is not true 

here. The FEC has never argued that the Institute’s 

advertisement was a sham intended to advocate against 

Senator Udall’s reelection. No reasonable voter would view 

the advertisement—which mentioned both Senators from 

Colorado, including the one not running for reelection—as 

an attempt to defeat Senator Udall.

Even assuming the disclosure requirement in BCRA 

implicates an important governmental interest, the 

district court conducted virtually no analysis of narrow 

tailoring. “In the First Amendment context,” however, “fit

matters.” McCutcheon, 134 S. Ct. at 1456; see Buckley, 424 

U.S. at 64 (“[C]ompelled disclosure . . . cannot be justified

by a mere showing of some legitimate governmental 

interest.”). According to the district court, the disclosure 

requirement is narrowly tailored because it “impose[s] 

no ceiling on campaign related activities” and “do[es] not 

prevent anyone from speaking.” JS App. 31 (alterations 

in original; citation omitted). That is, BCRA’s disclosure 

requirement is narrowly tailored because it does not 

completely censor speech. But that is true of all disclosure 

requirements, and it is true of all but the most draconian 

restrictions on speech. This kind of analysis is not exacting 

scrutiny; it is a rubberstamp. 

In essence, the district court held that this Court’s 

precedent establishes a per se rule that disclosure may be 

imposed on policy advocacy that mentions the name of a 

candidate, even if that person is referenced only because 
15

he or she is an elected official, and even if the advocacy

includes no discussion of any election, candidacy, or voting. 

The district court basically held that First-Amendment 

review of policy advocacy is so weak that merely pointing 

in the general direction of a public informational interest 

will be enough to require disclosure. Unfortunately, it is 

not the first court to do so. See, e.g., Independence Inst. 

v. Williams, 812 F.3d 787, 795-96 (10th Cir. 2016); Ctr. for 

Individual Freedom v. Madigan, 697 F.3d 464, 481-83 

(7th Cir. 2012); Family PAC v. McKenna, 685 F.3d 800, 

808-10 (9th Cir. 2012).

This trend should be disturbing. The lower courts 

are ignoring that, in every case upholding a disclosure 

requirement, the speech at issue was express advocacy 

or its functional equivalent. See JS 21-22; e.g., Citizens 

United, 558 U.S. at 368 (explaining that the advertisement 

“contained pejorative references to [Senator Clinton’s] 

candidacy”). They are ignoring that the First Amendment 

still imposes a “strict test” in the disclosure context. 

Buckley, 424 U.S. at 66. And they are ignoring that here 

too “the strength ofthe governmental interest must reflect

the seriousness of the actual burden on First Amendment 

rights.” Davis v. FEC, 554 U.S. 724, 744 (2008). If the 

Court still believes that anything more than rational-basis 

review governs disclosure as applied to policy advocacy, 

it must grant plenary review.

II.	 This Case Raises Issues Of Broad Significance That

Warrant Immediate Review.

The district court’s decision is not just wrong; it is 

dangerous. By subjecting every piece of policy advocacy 

that even mentions a candidate’s name to BCRA’s onerous 
16

disclosure requirements, the ruling will substantially 

curtail political speech. And by endorsing the broadest 

possible justifications for disclosure requirements of any

stripe, the decision will have far-reaching effects on First 

Amendment freedoms. In short, the decision below (and 

the others like it) make it abundantly clear that the lower 

courts are unwilling to find any disclosure requirement 

unconstitutional in any circumstance. But there is a line to 

be drawn, and this Court should note probable jurisdiction 

and draw it. 

Most immediately, the district court’s decision will 

chill public advocacy on questions of government policy—

“the type of speech indispensable to decisionmaking in 

a democracy.” Bellotti, 435 U.S. at 777. This Court has 

“repeatedly” recognized that disclosure requirements 

“seriously infringe” political advocacy. Davis, 554 U.S. at 

744 (quoting Buckley, 424 U.S. at 64-65). Would-be donors 

have many legitimate reasons to insist on anonymity—

“fear of economic or official retaliation,” “concern about

social ostracism,” the assurance “that readers will not 

prejudge [a] message simply because they do not like its 

proponent,” or “merely [the] desire to preserve as much 

of one’s privacy as possible.” McIntyre, 514 U.S. at 341-42. 

Some Chamber members, for example, have made clear 

that they (or their donors) are not willing to be identified

and will withhold (or retract) their support if anonymity is 

jeopardized. BCRA assures that disclosure, as it requires 

every donor’s name and address to be published in a 

permanent and almost instant record that is available on 

the Internet. See FEC, Electioneering Communications 

Disclosure Data Catalog, goo.gl/Obn6gD.
17

If advocates want to comply with BCRA’s disclosure 

requirements, they must choose between two unpalatable 

options. They can edit their advertisements to omit any 

reference to elected officials who happen to be candidates.

See 52 U.S.C. § 30104(f)(3)(A)(i)(I). But that is easier said 

than done given the sheer number of federal legislators 

who are candidates in any given election cycle—virtually 

all members of the House and a third of the members of 

the Senate.3 More fundamentally, inhibiting this speech 

will omit crucial information from the advertisement, 

limiting the effectiveness of the call-to-action. Urging 

one’s fellow citizens to support a critical policy change is 

much less compelling if the listener does not know what to 

do or who to contact. See Kendall Breitman, Poll: Majority 

of Millennials Can’t Name a Senator from Their Home 

State, Politico (Feb. 3, 2015), goo.gl/oh7Bmx (report

that only 33% of Americans between 18 and 34 can name 

one of their Senators); Elizabeth Mendes, Americans 

Down on Congress, OK with Own Representative, Ga

(May 9, 2013), goo.gl/pp0VQy (finding that only 35% of all

Americans can name their House member). 

Alternatively, advocates can curtail their speech 

whenever a primary, general election, special election, 

runoff, convention, or caucus is approaching. See 52 U.S.C. 

§ 30104(f)(3)(A)(i)(II). But that will choke off a substantial 

amount of policy advocacy, since “campaigns themselves 

3. Indeed, members of Congress are often candidates 

throughout their entire tenure. Representative Lloyd Doggett, for 

example, filed his official Statement of Candidacy for the recently

held 2016 election the day after his election in 2014. See Statement 

of Candidacy of Lloyd Doggett for the 2016 Election (filed Nov. 5,

2014), http://docquery.fec.gov/pdf/791/14952573791/14952573791.

pdf. 
18

generate issues of public interest.” Buckley, 424 U.S. at 

42. Similarly, pulling issue advocacy near elections would 

seriously limit the size of the audience, as elections are 

precisely when voters are most attuned and receptive to 

discussions of policy. See 145 Cong. Rec. S12575 (daily ed. 

Oct. 14, 1999) (letter from Laura W. Murphy, Director, 

ACLU Washington Office) (“The [60-day] period when

non-PAC issue groups are locked out is the very time when 

everyone is paying attention!”).

Sometimes, moreover, urgent public policy issues 

arise during campaign season for reasons unrelated to the 

election calendar. In September 2008, for instance, while 

two sitting Senators were running for President, Lehman 

Brothers filed for bankruptcy, setting off a financial crisis

of historic magnitude. President George W. Bush quickly 

proposed the Emergency Economic Stabilization of Act 

of 2008, and Congress had to debate and vote on the 

proposal within weeks. Senator McCain even suspended 

his campaign for President to return to Washington and 

participate in the debate. See Jesse Holcomb, How the 

Lehman Bros. Crisis Impacted the 2008 Presidential 

Race, Pew Research Ctr. (Sept. 19, 2013), goo.gl/5V8s

To say that advocates who value anonymity had to refrain 

from urging these two Senators, as well as virtually 

every member of the House (most of whom were running 

for reelection), to vote for or against the bailout of the 

U.S. financial system during one of the worst economic

disasters in our history borders on the absurd.

Beyond its immediate consequences, the reasoning of 

the district court’s decision is more dangerous still, as it 

has no logical stopping point. Although the district court 

briefly mentioned the specific limits in BCRA, see JS App. 
19

22, it ultimately held that all disclosure requirements are 

constitutional. See id. at 23-24. After all, the mere mention 

of a lawmaker who is also a candidate, according to the 

district court, triggers all of the government’s interests in 

regulating speech because it “links an electoral candidate 

to a political issue.” Id. at 30. Similarly, all disclosure laws 

by definition are “tailored to substantially advance those

interests” because they burden speech but do not entirely 

prevent it. Id. at 31.

In other words, the specific limits set forth in BCRA

are merely a matter of legislative grace. A future Congress 

could lower the $10,000 threshold on advertisements 

or the $1,000 threshold on disclosure. 52 U.S.C. 

§ 30104(f)(1), (2)(E). Or Congress could expand the 30- and 

60-days-before-an-election requirements to 90 days, or 

180 days, or even 365 days. See id. § 30104(f)(3)(A)(i)(II). 

And why would it not; policy advocacy (unlike campaign 

speech) is aimed exclusively at incumbents for the obvious 

reason that only those in office can pass or defeat the

legislation to which such speech is addressed. 

These concerns are not hypothetical: many states 

have enacted disclosure requirements that sweep even 

more broadly than the federal regime. For example, 

some states cover more forms of media than just certain 

broadcasts. See, e.g., Md. Code, Elec. Law § 13-307(a)(3)(i) 

(covering “broadcast television or radio communication, 

a cable television communication, a satellite television or 

radio communication, a mass mailing, an e-mail blast, 

a text blast, a telephone bank, or an advertisement in a 

print publication”). Some states have considerably lower 

monetary thresholds. See, e.g., Mass. Gen. Laws ch. 55, 

§ 18F (requiring reporting for making expenditures of 
20

more than $250 per calendar year). Some states impose 

extreme penalties for violations. See, e.g., Wash. Rev. Code 

§§ 42.17A.750, 42.17A.765(5) (allowing for penalties triple 

the amount unreported). And some states expand the 

temporal window far beyond 60 days. See, e.g., Ala. Code 

§ 17-5-2(a)(6) (120 days before any election); Mass. Gen. 

Laws ch. 55, § 1 (90 days before any election); N.Y. Comp. 

Codes R. & Regs. tit. 19, § 938.3 (2016) (lobbyist disclosure 

law applied 365 days a year, including nonelection years, 

and applied to appointed as well as elected officials).

Given the neverending nature of modern political 

campaigns, there are no real limits on legislatures’ ability 

to impose disclosure requirements—at least under the 

district court’s reasoning. Indeed, if the district court is 

right, and political speech does not need a meaningful 

connection to an election before it can be subject to a 

disclosure requirement, then no organization is truly safe. 

In the name of the generic informational interest accepted 

by the district court, legislatures could demand the donor 

rolls of Planned Parenthood, Black Lives Matters, the 

Mexican American Legal Defense Fund, or any other 

group that raises the ire of those exercising political power 

based on a threadbare connection to elections. None of 

this bodes well for First Amendment freedoms, which 

are “delicate and vulnerable” and “need breathing space 

to survive.” NAACP v. Button, 371 U.S. 415, 433 (1963). 

And all of it directly contravenes our Nation’s “‘profound 

national commitment to the principle that debate on 

public issues should be uninhibited, robust, and wideopen.’” Buckley, 424 U.S. at 14 (quoting N.Y. Times Co. v. 

Sullivan, 376 U.S. 254, 270 (1964)).
21

CONCLUSION

The Court should note probable jurisdiction and set 

this case for oral argument.

Respectfully submitted,

Lily Fu Cl

Ryan Meyer

U.S. Chamber of

1615 H Street, NW

Washington, DC 20062

(202) 463-5576

Kate Comerford

Warren Post

U.S. Cha

Litigation Center,

1615 H Street, NW

Washington, DC 20062

(202) 463-5337

Jan Witold B

Counsel of Record

Thomas W. K

Caleb P. Bu

Wiley Rein 

1776 K Street, NW

Washington, DC 20006

(202) 719-7000

jbaran@wileyrein.com

Counsel for Amicus Curiae

January 9, 2017