IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF THE DISTRICT OF COLUMBIA

INDEPENDENCE INSTITUTE, a Colorado 

nonprofit corporation,

Plaintiff,

v.

FEDERAL ELECTION COMMISSION,

Defendant.

)

)

)

)

)

) Civil Action No 1:14-cv-01500-CKK

)

)

)

)

)

)

MOTION FOR A PRELIMINARY INJUNCTION

Plaintiff Independence Institute, by and through undersigned counsel, moves this Court 

for a preliminary injunction. The Independence Institute asks that the Federal Election 

Commission (“FEC”) be enjoined from enforcing provisions of the Bipartisan Campaign Reform 

Act of 2002 (“BCRA”) Pub. L. No. 107-155 § 201, 116 Stat. 81, 88 (2002) (codified at 52 

U.S.C. § 30104(f)), and the BCRA’s implementing regulations which, taken together, appear to 

require the Independence Institute to report its planned activity as an electioneering 

communication.

As set forth in the accompanying Memorandum of Law in Support of this Motion, if the 

Independence Institute is required to report its activity as an electioneering communication, it 

will be subject to burdensome registration and reporting requirements. These requirements 

violate the Independence Institute’s First Amendment rights to free speech and free association. 

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Case 1:14-cv-01500-CKK Document 5 Filed 09/04/14 Page 1 of 2
Reasonably fearing that the FEC will enforce these provisions, the Independence Institute will 

not speak absent an injunction from this Court.

While a copy of the Summons and Complaint has been mailed to the FEC and various 

other officers of the United States, service upon the FEC and the United States has not yet been 

effectuated, nor has Defendant entered an appearance in this case. Nevertheless, Plaintiff has 

informally provided electronic copies of filings in this case to the FEC’s Office of General 

Counsel, and intends to do the same here. Plaintiff expects that this Motion will be opposed.

Respectfully submitted this 4th day of September, 2014.

/s/ Allen Dickerson

Allen Dickerson (DC Bar No. 1003781)

Center for Competitive Politics

124 S. West Street, Suite 201

Alexandria, Virginia 22314

Telephone: 703-894-6800

Facsimile: 703-894-6811

adickerson@campaignfreedom.org

Counsel for Plaintiff

2

Case 1:14-cv-01500-CKK Document 5 Filed 09/04/14 Page 2 of 2
IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA

INDEPENDENCE INSTITUTE, a Colorado 

nonprofit corporation,

Plaintiff,

v.

FEDERAL ELECTION COMMISSION,

Defendant.

)

)

)

) 

)

) Civil Action No. 1:14-cv-01500-CKK

)

)

)

)

)

)

MEMORANDUM OF LAW 

IN SUPPORT OF MOTION FOR A PRELIMINARY INJUNCTION

/s/ Allen Dickerson

Allen Dickerson (DC Bar No. 1003781)

Tyler Martinez*

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

*Admission pro hac vice pending

Case 1:14-cv-01500-CKK Document 5-1 Filed 09/04/14 Page 1 of 33
Table of Contents 

Table of Contents............................................................................................................................. i

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

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

Facts.................................................................................................................................................1

Summary of the Argument...............................................................................................................4

Argument .........................................................................................................................................7

I. The standard for granting a motion for preliminary injunction. ....................................7

II. The Independence Institute has a substantial likelihood of success on the 

merits in this as-applied challenge.................................................................................7

a. Because compelled disclosure infringes the freedom of association, 

disclosure laws must survive exacting scrutiny. .....................................................7

b. In the foundational case of Buckley v. Valeo, the Supreme Court 

specifically protected organizations engaging in issue speech from the 

burdens of campaign finance disclosure. .................................................................8

c. The Supreme Court’s decisions in McConnell and Citizens United do 

not predicate disclosure upon neutral, nonpartisan issue speech and do not 

overturn Buckley. ...................................................................................................11

i. McConnell and its progeny limited state regulation to the 

“functional equivalent” of Buckley’s “express advocacy” both 

facially and on an as-applied basis.............................................................12

ii. The 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......................14

iii. Citizens United did not discuss the particular burden of disclosing 

donors to a 26 U.S.C. § 501(c)(3) organization.........................................18

d. The D.C. Circuit recognized the need to protect issue speech in Buckley v. 

Valeo, which remains binding precedent in this Circuit........................................18

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Case 1:14-cv-01500-CKK Document 5-1 Filed 09/04/14 Page 2 of 33
e. BCRA’s electioneering communications definition and disclosure 

regulations unconstitutionally burden the rights of the Independence 

Institute and its donors to freedom of speech and association...............................20

i. BCRA failed to tailor its disclosure demand to an appropriate 

governmental interest.................................................................................21

ii. BCRA’s electioneering communication disclosure system is overly 

broad and makes no exception for genuine issue speech. .........................22

iii. BCRA’s electioneering communication disclosure system is 

burdensome to the Independence Institute and its donors. .......................23

III. First Amendment violations, even for a brief time, are irreparable harm....................25

IV. The balance of interests favors granting the Independence Institute’s motion............25

V. The public interest is served by protecting the First Amendment rights to 

speech and association. ................................................................................................26

Conclusion .....................................................................................................................................26

ii

Case 1:14-cv-01500-CKK Document 5-1 Filed 09/04/14 Page 3 of 33
Table of Authorities

Cases

Bates v. City of Little Rock, 

361 U.S. 516 (1960)...................................................................................................7, 9, 20

* Buckley v. Valeo,

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

* Buckley v. Valeo, 

519 F.2d 821 (D.C. Cir. 1975).........................................................................18, 19, 20, 22

California Bankers Ass’n v. Shultz, 

416 U.S. 21 (1974)...............................................................................................................9

Carey v. FEC, 

791 F. Supp. 2d 121 (D.D.C. 2011).....................................................................................7

Center for Individual Freedom v. Van Hollen, 

694 F.3d 108 (D.C. Cir. 2012)...........................................................................................24

Citizens United v. FEC, 

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

Citizens United v. FEC, 

530 F. Supp. 2d 274 (D.D.C. 2008).......................................................................16, 17, 18

Elrod v. Burns, 

427 U.S. 347 (1976)...........................................................................................................25

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

479 U.S. 238 (1986)...........................................................................................................14

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

551 U.S. 449 (2007).........................................................................................12, 13, 14, 16

Gordon v. Holder, 

721 F.3d 638 (D.C. Cir. 2013)...........................................................................................26

McConnell v. FEC, 

540 U.S. 93 (2003).......................................................................................................11, 12

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Case 1:14-cv-01500-CKK Document 5-1 Filed 09/04/14 Page 4 of 33
McCutcheon v. FEC, 

572 U.S. ___, 134 S.Ct. 1434 (2014)...................................................................................8 

McCullen v. Coakley,

573 U.S. ___, 134 S. Ct. 2518 (2014)................................................................................21

NAACP v. Ala. ex rel. Patterson, 

357 U.S. 449 (1958)...............................................................................................7, 8, 9, 20

NAACP v. Button, 

371 U.S. 415 (1963).........................................................................................................8, 9

Real Truth About Abortion, Inc. v. FEC, 

681 F.3d 544 (4th Cir. 2012) .............................................................................................17

Thomas v. Collins, 

323 U.S. 516 (1945)...........................................................................................................25

Winter v. NRDC, Inc., 

555 U.S. 7 (2008).................................................................................................................7

* Wis. Right to Life, Inc. v. Barland, 

751 F.3d 804 (7th Cir. 2014) .............................................................................8, 14, 15, 16

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

546 U.S. 410 (2006)...........................................................................................................13

Constitutions, Statutes, and Regulations

2 U.S.C. § 437a..............................................................................................................................18

52 U.S.C. § 30104(f)......................................................................................................................26

52 U.S.C. § 30104(f)(1).............................................................................................................3, 23

52 U.S.C. § 30104(f)(2)(E)..................................................................................................4, 23, 24

52 U.S.C. § 30104(f)(2)(F) ................................................................................................21, 23, 24

52 U.S.C. § 30104(f)(3)(A)(i)............................................................................................11, 21, 22

52 U.S.C. § 30104(f)(3)(C)............................................................................................................11

52 U.S.C. § 30104(f)(4).................................................................................................................23

52 U.S.C. § 30118..........................................................................................................................14

52 U.S.C. § 30118(b)(2) ................................................................................................................12

26 U.S.C. § 170(b)(1)(A)(vi)...........................................................................................................1

26 U.S.C. § 501(c)(3)...................................................................................................................1, 2

26 U.S.C. § 501(h)...........................................................................................................................2

26 U.S.C. § 501(h)(2)(B).................................................................................................................2

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Case 1:14-cv-01500-CKK Document 5-1 Filed 09/04/14 Page 5 of 33
26 U.S.C. § 501(h)(2)(D).................................................................................................................2

26 U.S.C. § 6104(b).......................................................................................................................23

26 U.S.C. § 6104(c)(3)...................................................................................................................18

26 U.S.C. § 6104(d)(3)(A).........................................................................................................2, 18

Bipartisan Campaign Reform Act of 2002, 

Pub. L. 107-155, 116 Stat. 81 (2002).................................................................................11

Federal Election Campaign Act Amendments of 1976 

Pub. L. 94-283, 90 Stat. 475 (1976)...................................................................................18

11 C.F.R. § 100.29.........................................................................................................................22

11 C.F.R. § 100.29(b)(2)................................................................................................................22

11 C.F.R. § 104.20(b) ....................................................................................................................24

11 C.F.R. § 104.20(c)(9)................................................................................................................24

26 C.F.R. § 1.501(c)(3)-1(3)............................................................................................................2

Other Authorities

Statement of Rep. William Frenzel, floor debate of FECA

120 CONG. REC. H. 10333 (daily ed., Oct. 10, 1974) ........................................................19

FEDERAL ELECTION COMMISSION, Colorado 2014 Federal Election Compliance Information

http://www.fec.gov/info/ElectionDate/2014/CO.shtml ................................................... 2-3

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Introduction

This case asks whether a communication that in no way “electioneers” may nonetheless 

be labeled an “electioneering communication” and regulated as such. 

The Independence Institute—a well-established Colorado think tank—wishes to produce 

an advertisement that asks Senator Mark Udall, together with his colleague from Colorado, to 

take action concerning federal sentencing reform. The advertisement takes no position 

whatsoever on Senator Udall as a political candidate. Nevertheless, the Bipartisan Campaign 

Reform Act (“BCRA”) would classify this issue speech as an “electioneering communication,” 

forcing the Institute to file reports publically identifying its donors. Because that requirement 

violates the First Amendment rights of the Institute and its supporters, a preliminary injunction is 

appropriate.

Facts

Founded in 1985, the Independence Institute is one of the oldest state-based think tanks 

in the country. Focusing on Colorado public policy, the Independence Institute conducts research 

and educates the public on issues including taxation, health care, and justice policy. It is 

organized under Internal Revenue Code (26 U.S.C.) § 501(c)(3), and is a charitable foundation. 

26 U.S.C. §§ 501(c)(3) (charity status); 170(b)(1)(A)(vi) (foundation status for revenue 

generated by donations from the general public). 

Organizations exempt from taxation under § 501(c)(3) may not engage in activity 

supporting or opposing a candidate. 26 U.S.C. § 501(c)(3) (banning “participat[ion] in, or 

interven[tion] in (including the publishing or distributing of statements), any political campaign 

on behalf of (or in opposition to) any candidate for public office”). The privacy of § 501(c)(3) 

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organizations’ donors is protected by federal law. See, e.g., 26 U.S.C. § 6104(d)(3)(A) 

(prohibiting “the disclosure of the name and address of any contributor to the [§ 501(c)(3)]

organization”).

“Public charity” § 501(c)(3) organizations may engage in limited lobbying activity—

including “grassroots lobbying” where an organization encourages citizens to call their leaders 

and request official action. 26 U.S.C. § 501(c)(3) (decreeing that “no substantial part of [a § 

501(c)(3) organization’s] activities” shall consist of “carrying on propaganda, or otherwise 

attempting, to influence legislation”); 26 C.F.R. § 1.501(c)(3)-1(3). Since “substantial” is 

undefined and difficult to discern, Congress provided a safe harbor under 26 U.S.C. § 501(h), 

which permits a § 501(c)(3) organization to spend a defined portion of its budget on lobbying

and grassroots lobbying. 26 U.S.C. §§ 501(h)(2)(B) and (D). The Independence Institute elects

treatment under § 501(h).

Consistent with its § 501(h) designation, the Independence Institute wishes to run an 

advertisement calling for Coloradoans to support federal sentencing reform. The advertisement 

will encourage Coloradoans to call Senators Mark Udall and Michael Bennet and request that 

they support the Justice Safety Valve Act. The advertisement will be approximately 30 seconds 

in length, and be distributed over local broadcast radio in Colorado. Since this is an election year, 

but advertisements take time to produce, the advertisement will run after the start of BCRA’s

electioneering communications window for the general election.1 The advertisement will be as 

follows:

1 Since the general election is on November 4, 2014, sixty days prior to this year’s general 

election is Friday, September 5, 2014. See, FEDERAL ELECTION COMMISSION, Colorado 2014 

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Case 1:14-cv-01500-CKK Document 5-1 Filed 09/04/14 Page 8 of 33
Independence Institute

Radio :60

“Let the punishment fit the crime” 

Let the punishment fit the crime.

But for many federal crimes, that’s no longer true.

Unfair laws tie the hands of judges, with huge increases in prison costs that help 

drive up the debt.

And for what purpose?

Studies show that these laws don’t cut crime.

In fact, the soaring costs from these laws make it harder to prosecute and lock up 

violent felons.

Fortunately, there is a bipartisan bill to help fix the problem – the Justice Safety 

Valve Act, bill number S. 619.

It would allow judges to keep the public safe, provide rehabilitation, and deter 

others from committing crimes.

Call Senators Michael Bennet and Mark Udall at 202-224-3121. Tell them to 

support S. 619, the Justice Safety Valve Act. 

Tell them it’s time to let the punishment fit the crime.

Paid for by Independence Institute, I2I dot org. Not authorized by any candidate 

or candidate’s committee. Independence Institute is responsible for the content of 

this advertising.

Radio advertisements are expensive. Running this advertisement will cost well in excess 

of $10,000—triggering BCRA’s electioneering communication threshold. See 52 U.S.C. § 

30104(f)(1). In order to fund this communication, the Independence Institute wishes to solicit 

donations. The organization will seek donations greater than $1,000 from individual donors to 

Federal Election Compliance Information http://www.fec.gov/info/ElectionDate/

2014/CO.shtml (last accessed Sept. 4, 2014).

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pay for the advertisement. But BCRA § 201 requires that such donors be disclosed on an 

electioneering communications report. 52 U.S.C. § 30104(f)(2)(E). 

The Institute does not wish to disclose and report its donors and, as it is not engaging in 

electioneering, does not believe it may be constitutionally required to do so. Consequently, the 

Independence Institute faces a dilemma: it may remain silent on issues important to its mission, 

or it may speak on the issue of federal sentencing guidelines, but disclose its donors and destroy 

their associational privacy. 

Facing that choice, the Independence Institute filed a Verified Complaint seeking 

declarations that BCRA’s electioneering communications definition and accompanying 

disclosure system are overbroad as applied to the Independence Institute’s planned activity. 

Because the general election—and consequently, the electioneering communications window—

is rapidly approaching, the Independence Institute seeks a preliminary injunction from this Court 

allowing it to speak without disclosing its donors or facing legal sanctions for failing to do so.

Summary of the Argument

Speech about public issues lies at the core of the First Amendment. But the Bipartisan 

Campaign Reform Act of 2002 (“BCRA”) does not exclude issue speech from its regulation of 

“electioneering communications.” That term captures advertisements that merely mention a 

candidate within two months of the general election. 

The Independence Institute’s challenge presents two issues for this Court. First, whether 

BCRA’s electioneering communications definition is overly expansive, reaching and chilling 

issue speech that does not, under any reasonable interpretation, advocate for or against a 

candidate for office. Second, whether the disclosure demanded by law in connection with 

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electioneering communications is insufficiently tailored to the government’s legitimate interests, 

and consequently constitutes an unconstitutional violation of donors’ privacy.

The Supreme Court in the civil rights era championed a fundamental principle: compelled 

disclosure threatens the freedom of association. The foundational campaign finance case—

Buckley v. Valeo—specifically applied this principle to campaign finance disclosure. 

Recognizing the harm to associational liberties inherent in the forced disclosure of donors, the 

Court differentiated between candidate advocacy—which may be regulated—and issue 

advocacy, which generally may not. Under that decision, donors may be disclosed only when a 

group makes expenditures that expressly advocate a particular election result, or where the 

organization’s major purpose is electoral advocacy.

After passage of the Bipartisan Campaign Reform Act of 2002, the Supreme Court 

reviewed a new form of regulated speech: the electioneering communication. McConnell v. FEC

upheld the new regime facially, at least insofar as the regulated advertisements contain express 

advocacy or its functional equivalent. In FEC v. Wis. Right To Life, Inc., the Court applied the 

“functional equivalent of express advocacy test” in the context of a ban on corporate 

electioneering communications. The Court, in an as-applied challenge, narrowed the law to reach 

only those advertisements that were “susceptible of no reasonable interpretation other than as an 

appeal to vote for or against a specific candidate.”

In Citizens United v. FEC, the Court briefly considered BCRA’s disclosure regime and 

rejected Citizens United’s request that disclosure be limited to communications containing the 

functional equivalent of express advocacy. But Citizens United’s terse language was dicta—the 

communications in question had already been found to be the functional equivalent of express 

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advocacy. Likewise, the advertisements were run by a § 501(c)(4)—not (c)(3)—organization 

known for its political advocacy.

The en banc D.C. Circuit’s decision in Buckley provides further guidance. In a section of 

the opinion unmodified by the Supreme Court, the D.C. Circuit demanded a nexus between 

disclosure and direct political activity—mere incidental impact on elections is not enough. The 

Independence Institute’s mention of Senator Udall does not create a sufficient nexus to an 

election to justify compelled disclosure. The D.C. Circuit’s protection of issue speech remains

good law.

But BCRA § 201 does not provide a limiting test for issue speech. The law does not 

distinguish between “electioneering communications” that in some way “electioneer” and those 

which merely mention a sitting officeholder who also happens to be a candidate for office. 

Therefore, the Institute’s proposed advertisement exposes its donors to public disclosure of their 

names and addresses. This compelled disclosure is itself a grave First Amendment harm that 

cannot be remedied once imposed. Consequently, the Institute seeks this Court’s protection

before speaking. 

The advertisement presented here is pure issue advocacy. It does not support or oppose 

Senator Udall’s reelection, and in fact make no reference to his candidacy. Therefore, BCRA’s 

electioneering communications definition and accompanying disclosure requirements are 

unconstitutional as applied to the Independence Institute and its specific advertisement. Plaintiff 

consequently has a substantial likelihood of success on the merits. 

Satisfying the merits factor, the Independence Institute also satisfies the non-merits 

factors for a preliminary injunction. Restrictions on First Amendment rights, even for a minimal 

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time, do irreparable harm. Because an injunction would protect First Amendment freedoms as 

applied to the Independence Institute, the balance of interests favors the granting the injunction. 

Enforcing the First Amendment always serves the public interest. 

Argument

I. The standard for granting a motion for preliminary injunction.

Entry of a preliminary injunction is appropriate where the movant establishes that “(a) he 

is likely to succeed on the merits; (b) that he is likely to suffer irreparable harm in the absence of 

preliminary relief; (c) that the balance of equities tips in his favor; and (d) that an injunction is in 

the public interest.” Carey v. FEC, 791 F. Supp. 2d 121, 128 (D.D.C. 2011) (quoting and 

applying Winter v. NRDC, Inc., 555 U.S. 7, 20 (2008)). As established in the Verified Complaint, 

the Independence Institute’s claims satisfy all four prongs.

II. The Independence Institute has a substantial likelihood of success on the 

merits in this as-applied challenge.

a. Because compelled disclosure infringes the freedom of association, 

disclosure laws must survive exacting scrutiny.

As a first principle, the disclosure of an organization’s contributors is disfavored. NAACP 

v. Ala. ex rel. Patterson, 357 U.S. 449, 462 (1958) (“NAACP v. Alabama”) (“It is hardly a novel 

perception that compelled disclosure of affiliation with groups engaged in advocacy may 

constitute a[n] effective... restraint on freedom of association....”). That is because there is a 

“vital relationship between freedom to associate and privacy in one's associations.” Id. 

The freedom of association must be protected “not only against heavy-handed frontal 

attack, but also from being stifled by more subtle governmental interference” such as disclosure

and its attendant sanctions for failing to disclose. Bates v. City of Little Rock, 361 U.S. 516, 523 

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(1960). The freedoms of speech and association are “delicate and vulnerable” to “[t]he threat of 

sanctions [which] may deter their exercise almost as potently as the actual application of 

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

In the campaign finance context, it has “long [been]... recognized that significant 

encroachments on First Amendment rights of the sort that compelled disclosure imposes cannot 

be justified by a mere showing of some legitimate governmental interest.” Buckley v. Valeo, 424 

U.S. 1, 64 (1976). It is not enough that the government have some interest—its interest must be 

substantial enough to pass “exacting scrutiny.” Id. 

Exacting scrutiny is “not a loose form of judicial review.” Wisc. Right to Life v. Barland, 

751 F.3d 804, 840 (7th Cir. 2014). In order for any disclosure law to survive this strong review, 

“the subordinating interests of the State must... [possess] a ‘substantial relation’ between the 

governmental interest and the information required to be disclosed.” Buckley, 424 U.S. at 64 

(quoting NAACP v. Alabama, 357 U.S. at 463). This tailoring requirement is a “strict test.” Id. at 

66.

b. In the foundational case of Buckley v. Valeo, the Supreme Court 

specifically protected organizations engaging in issue speech from the 

burdens of campaign finance disclosure. 

Buckley v. Valeo serves as the starting point for all campaign finance jurisprudence in the 

modern era. See, e.g., McCutcheon v. FEC, 572 U.S. ___, ___, 134 S.Ct. 1434, 1444 (2014) 

(applying Buckley to aggregate contribution limits). Buckley specifically incorporated the civil 

rights cases’ reasoning when dealing with campaign finance generally and disclosure 

specifically. See, e.g., Buckley, 424 U.S. at 15 (quoting NAACP v. Alabama, 357 U.S. at 460); id.

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at 64-66 (applying associational privacy principles from cases such as NAACP v. Alabama, 357 

U.S. at 460-61; Bates, 361 U.S. at 522-523; and NAACP v. Button, 371 U.S. at 438).

In Buckley, the Supreme Court examined the interplay between the government’s desire 

for disclosure, and the First Amendment’s robust protection of the freedoms of speech and 

association. The Buckley Court determined that “[t]he constitutional right of 

association...stem[s] from the...recognition that ‘[e]ffective advocacy of both public and private 

points of view...is undeniably enhanced by group association.’” Buckley, 424 U.S. at 15 (quoting 

NAACP v. Alabama, 357 U.S. at 460). Acting to safeguard this associational liberty, the Court 

noted explicitly that “compelled disclosure has the potential for substantially infringing the 

exercise of First Amendment rights.” Id. at 66. The Court was further concerned with “the 

invasion of privacy of belief” generated by disclosure, given that “‘[f]inancial transactions can 

reveal much about a person’s activities, associations, and beliefs.’” Id. (quoting California 

Bankers Ass’n v. Shultz, 416 U.S. 21, 78-79 (1974) (Powell, J., concurring)).

Consequently, the Court placed the burden of defending a disclosure regime’s 

constitutionality on the government. Id. at 65. And Buckley was no outlier: the Court 

incorporated the long-mandated rule that disclosure survive “exacting scrutiny.” Id. at 64-65 

(citing NAACP v. Alabama, 357 U.S. at 463). Therefore, the FEC must show a “relevant 

correlation” or “substantial relation” between the disclosure required and a sufficiently important 

governmental interest. Id. at 64 (internal citation omitted). 

The Federal Election Campaign Act (“FECA”), the law challenged by the Buckley 

plaintiffs, required disclosure from “political committees”—a term defined only as organizations 

making “contributions” or “expenditures” over a certain threshold amount. Id. at 79. Both 

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“contributions” and “expenditures” were defined in terms of “the use of money or other objects 

of value ‘for the purpose of... influencing’ the nomination or election of any person to federal 

office.” Id. at 63. Since such a vague definition “could be interpreted to reach groups engaged 

purely in issue discussion,” the Court, performing its duty to save, if possible, legislative intent, 

promulgated the “major purpose” test. Id. at 79. The test is straightforward: the government may 

compel contributor information from “organizations that are under the control of a candidate or 

the major purpose of which is the nomination or election of a candidate.” Id. In this context, such 

an organization’s expenditures “are, by definition, campaign related.” Id. 

However, in the context of an organization without “the major purpose” of supporting or 

opposing a candidate, the Court deemed disclosure constitutionally appropriate only:

(1) when [organizations] make contributions earmarked for political purposes or 

authorized or requested by a candidate or his agent, to some person other than a 

candidate or political committee, and (2) when [organizations] make expenditures 

for communications that expressly advocate the election or defeat of a clearly 

identified candidate.

Id. at 80. The Court narrowly defined the term “expressly advocate” to encompass only “express 

words of advocacy of election or defeat, such as ‘vote for,’ ‘elect,’ ‘support,’ ‘cast your ballot 

for,’ ‘Smith for Congress,’ ‘vote against,’ ‘defeat,’ [and] ‘reject.’” Id. at 80 n. 108, incorporating 

by reference id. at 44 n. 52. Such communications have a “substantial connection with the 

governmental interests” in disclosure, because they involve “spending that is unambiguously 

related” to electoral outcomes. Id. at 80, 81.

To summarize, the Buckley Court held that compelled disclosure of contributors is 

constitutionally disfavored. Disclosure can only be required of groups that exist to actively 

advocate for a particular electoral result. And such disclosure regimes must withstand “exacting 

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scrutiny”—under which the burden of persuasion falls upon the state. Buckley, 424 U.S. at 25 

(burden is on “the State [to] demonstrate[] a sufficiently important interest and employ[] means 

closely drawn to avoid unnecessary abridgment of associational freedoms”). 

c. The Supreme Court’s decisions in McConnell and Citizens United do not 

predicate disclosure upon neutral, nonpartisan issue speech and do not 

overturn Buckley.

In 2002, Congress overhauled the federal campaign finance laws, creating a new category 

of speech called “electioneering communications.” Bipartisan Campaign Reform Act of 2002 

(“BCRA”), Pub. L. 107-155 § 201, 116 Stat. 81, 88 (2002) (definition codified at 52 U.S.C. § 

30104(f)(3)(A)(i)); McConnell v. FEC, 540 U.S. 93, 189 (2003) overruled in part by Citizens 

United v. FEC, 558 U.S. 310, 366 (2010). In the federal system, such electioneering 

communications are

[A]ny broadcast, cable, or satellite communication which--(I) refers to a clearly 

identified candidate for Federal office; (II) is made within—(aa) 60 days before a 

general, special, or runoff election for the office sought by the candidate; or (bb) 

30 days before a primary or preference election, or a convention or caucus of a 

political party that has authority to nominate a candidate, for the office sought by 

the candidate; and (III) in the case of a communication which refers to a 

candidate for an office other than President or Vice President, is targeted to the 

relevant electorate. 

52 U.S.C. § 30104(f)(3)(A)(i). “Targeted to the relevant electorate” was defined to mean that 

“the communication can be received by 50,000 or more persons” in the relevant jurisdiction. 52 

U.S.C. § 30104(f)(3)(C). These provisions, along with others from BCRA, became the 

background to several constitutional challenges, often in the context of bans on speech rather 

than disclosure requirements. The cases are instructive, however, in that they show the Supreme 

Court’s continued commitment to protecting issue speech from undue capture by overbroad state 

regulation.

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i. McConnell and its progeny limited state regulation to the 

“functional equivalent” of Buckley’s “express advocacy” both 

facially and on an as-applied basis.

McConnell was an omnibus facial challenge to BCRA. 540 U.S. at 194. There, the 

Supreme Court reviewed the new federal regulation of “electioneering communications,” and 

upheld a ban on electioneering communications by corporations and unions. Id. at 206 

(examining BCRA § 203 (codified at 52 U.S.C. § 30118(b)(2)). 

In its analysis, the Court noted that BCRA was a response to the rise of “sham issue 

advocacy...candidate advertisements masquerading as issue ads.” McConnell, 540 U.S. at 132 

(internal quotations and citations omitted). It singled out a study in the McConnell record that 

found “the vast majority of ads” which would be regulated as electioneering communications 

“clearly had” an electioneering purpose. Id.at 206. Therefore, because many ads “broadcast 

during the 30- and 60-day periods preceding federal primary and general elections are the 

functional equivalent of express advocacy,” the electioneering communication definition had 

some constitutionally sound applications and withstood a facial challenge. Id. (emphasis added); 

FEC v. Wis. Right to Life, Inc., 551 U.S. 449, 456 (2007) (“WRTL II”) (“The [McConnell] Court 

concluded that there was no overbreadth concern to the extent the speech in question was the 

‘functional equivalent’ of express campaign speech”) (applying McConnell, 540 U.S. at 204-205, 

206).

But the McConnell Court “assume[d] that the interests that justify the regulation of 

campaign speech might not apply to the regulation of genuine issue ads,” and thus left open the 

possibility for future, as-applied challenges. Id. at 206, n. 88 (emphasis added). The Court would 

hear just such an as-applied challenge when a nonprofit corporation, Wisconsin Right to Life 

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wished to run advertisements discussing the Senate’s filibuster of federal judicial nominees. 

WRTL II, 551 U.S. at 458-59.

2 The proposed ads in WRTL II, like the Independence Institute’s 

proposed advertisement, simply referenced a (then) current political issue—the confirmation of 

judicial nominees—and encouraged viewers to contact their senators. Id. at 458-459.

Chief Justice Roberts’s controlling opinion in WRTL II expounded upon McConnell’s 

holding, and demarcated the difference between the functional equivalent of express advocacy—

the “sham issue” advertisements that McConnell addressed—and genuine issue speech. Id. at 

470. The WRTL II Court held that the government could only regulate the former. In particular, 

the Court found that the relevant governmental “interest [could] not justify regulating” the 

nonprofit’s advertisements. Id. at 479. They were “not the functional equivalent of express 

advocacy.” Id. at 478 (emphasis in original). Consequently, the statute flunked the required 

tailoring analysis.

The controlling opinion defined the functional equivalence of express advocacy as a 

communication which is “susceptible of no reasonable interpretation other than as an appeal to 

vote for or against a specific candidate.” Id. at 469-70. Furthermore, the Chief Justice noted the 

difficulty in divining the line “between discussion of issues on the one hand and advocacy of 

election or defeat of candidates on the other...” and therefore declined to “analyz[e] the question 

in terms ‘of intent and of effect’” as doing so “would afford ‘no security for free discussion.’” Id. 

at 467 (quoting Buckley, 424 U.S. at 43). Accordingly, to determine whether speech is the 

2 Wisc. Right to Life, Inc. v. FEC, 546 U.S. 410 (2006)(“WRTL I”) focused on whether 

McConnell had foreclosed as-applied challenges to the corporate electioneering 

communications ban. A unanimous Supreme Court determined “[i]n upholding [BCRA] against 

a facial challenge, we did not purport to resolve future as-applied challenges.” Id. at 411-12.

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functional equivalent of express advocacy, courts must look no further than the “four corners” of 

a proposed advertisement. Id. at 461 (internal quotation marks and citation omitted).

WRTL II arose in the context of a ban on speech, not a forced disclosure regime. But it 

nonetheless serves as strong authority for the continued vitality of Buckley’s separation of issue 

speech from express advocacy and, while acknowledging that some issue speech may indeed be 

a “sham,” provides an authoritative roadmap for courts seeking to make that determination. A 

communication is the “functional equivalent of express advocacy” only if—within the four 

corners of the communication—no reasonable person can read it as anything other than as an 

appeal to vote in a particular way.

ii. The 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. 

In time, the Supreme Court struck down the corporate and union independent expenditure 

ban (both BCRA § 203 and other parts of 52 U.S.C. § 30118) in Citizens United, 558 U.S. 310, 

372 (2010). As the Seventh Circuit recently noted, Citizens United discussed electioneering 

communication disclosure but “this part of the opinion is quite brief.” Wis. Right to Life, Inc. v. 

Barland, 751 F.3d 804, 824 (7th Cir. 2014). 

In its truncated discussion, the Court noted Citizens United’s claim “that, in any event, 

the disclosure requirements in § 201 must be confined to speech that is the functional equivalent 

of express advocacy.” It then “reject[ed] this contention.” Citizens United, 558 U.S. at 368-69. 

The Court held that disclosure is “a less restrictive alternative to more comprehensive regulations 

of speech.” Id. at 369 (citing FEC v. Mass. Citizens for Life, Inc., 479 U.S. 238, 262 (1986) and 

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Buckley, 424 U.S. at 75-76). But as Citizens United, like this case, was an as-applied challenge, 

the specific facts of the case are dispositive.

Citizens United produced a film called Hillary: The Movie (“Hillary”) and several 

advertisements to promote the film. Id. at 319-20. Because of the decision in WRTL II, a key 

question was whether Hillary and its supporting advertisements were express advocacy or its 

functional equivalent. Id. at 324-25. The Court explicitly held that Hillary was express advocacy. 

Id. at 325. 

When the Court turned to the advertisements for Hillary, it found that “[t]he ads f[e]ll 

within BCRA's definition of an ‘electioneering communication’” because “[t]hey referred to 

then-Senator Clinton by name shortly before a primary and contained pejorative references to 

her candidacy.” Id. at 368 (emphasis added). Given that the Court already found Hillary to be the 

functional equivalent of express advocacy and the advertisements for that express-advocacy 

communication to be “pejorative,” this holding does not address advertisements that are pure 

issue advocacy. 

As the Seventh Circuit reasoned, “the Court declined to apply the express-advocacy 

limitation to the federal disclosure...requirements for electioneering communications.... This 

was dicta. The Court had already concluded that Hillary and the ads promoting it were the 

equivalent of express advocacy.” Barland, 751 F.3d at 836 (citations omitted). Indeed,

“[l]ifting the express-advocacy limitation more broadly would have been a major 

departure from Buckley and is not likely to have been left implicit. Citizens 

United approved event-driven disclosure for federal electioneering 

communications—large broadcast ad buys close to an election. In that specific 

and narrow context, the Court declined to enforce Buckley's express-advocacy 

limitation, but it went no further than that.” 

Id.

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As Buckley observed, “the distinction between discussion of issues and candidates and 

advocacy of election or defeat of candidates may often dissolve in practical application.” 

Buckley, 424 at 42. Speech exists on a spectrum, and—importantly for this litigation—the 

Citizen United communications and the Independence Institute’s proposed advertisement sit on 

different parts of that spectrum.

On one end sits express advocacy—candidate speech using Buckley’s magic words of 

“support” or “reject” or their synonyms. See, id. at 44 n. 52. Next to express advocacy sit 

communications that do not use Buckley’s magic words but nevertheless clearly advocate on 

behalf of or against a candidate—the “functional equivalent of express advocacy,” as applied by 

WRTL II. 551 U.S. at 469-70. This category includes Citizens United’s “pejorative” 

communications. Citizens United, 558 U.S. at 325, 368; Barland, 751 F.3d at 823 (“The 

[Citizens United] Court began by holding that Hillary and the ads promoting it were the 

functional equivalent of express advocacy under Wisconsin Right to Life II”).

But on the other end of the spectrum is pure issue advocacy—discussion of public policy 

in the context of asking leaders to take action. The Independence Institute’s advertisement is 

pure issue advocacy—it educates the public about public policy and asks Coloradoans to seek 

action from their elected representatives. It does not support or oppose Senator Udall, or even 

allude to his candidacy. 

The contrast with Citizens United’s communications is marked. One advertisement began 

with “a kind word about Hillary Clinton,” and after complimenting Mrs. Clinton’s fashion sense, 

announced that Hillary was “a movie about the [sic] everything else.” Citizens United v. FEC, 

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530 F. Supp. 2d 274, 276 n. 3 (D.D.C. 2008). Another advertisement claimed Senator Clinton 

was “the closest thing we have in America to a European socialist.” Id. n. 4. 

Electioneering communications considered by other courts have generally been in a 

similar vein. For instance, in one case, the Fourth Circuit was confronted with an advertisement 

called “Change.” Real Truth About Abortion, Inc. v. FEC, 681 F.3d 544, 546 (4th Cir. 2012). 

The advertisement asked, “[j]ust what is the real truth about Democrat Barack Obama's position 

on abortion?” Id. After detailing alleged policy positions taken by then-candidate Obama, the 

advertisement ended, “Now you know the real truth about Obama's position on abortion. Is this 

the change you can believe in?” Id. Another advertisement ended, “Obama's callousness in 

denying lifesaving treatment to tiny babies who survive abortions reveals a lack of character and 

compassion that should give everyone pause.” Id. at 547. 

Advertisements like these were the sort of “sham issue advocacy” described in 

McConnell. These communications encourage a specific electoral outcome—namely, the defeat 

of Hillary Clinton or Barack Obama. The Citizens United Court recognized this. It described the 

organization’s advertisements for Hillary as “pejorative,” and held that Hillary itself functioned 

as a “feature-length negative advertisement.” Citizens United, 558 U.S. at 368; id. at 325. By

contrast, the Independence Institute’s proposed advertisement is genuine issue speech. From 

within the “four corners” of the proposed advertisement, one would not know that Senator Udall

is seeking office; indeed, he is listed equally with Senator Bennet, who is not. Instead, the 

advertisement is focused on federal sentencing reform, the Independence Institute’s belief that 

the Justice Safety Valve Act should be passed, and encourages the viewer to contact her 

senators—who have the ability to support or oppose bills introduced in the Senate.

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iii. Citizens United did not discuss the particular burden of disclosing 

donors to a § 501(c)(3) organization. 

Citizens United is, and at the time of its case was, a § 501(c)(4) organization. Citizens 

United, 530 F. Supp. 2d at 275. The Independence Institute is organized under § 501(c)(3). These 

two sections of the tax code, while differing by only one digit, describe markedly different types 

of organizations. These differences exacerbate the burdens of forced donor disclosure.

Consistent with this difference in permitted activity, donors to § 501(c)(4) organizations 

are generally offered less protection than those to § 501(c)(3) groups. See, e.g., 26 U.S.C. § 

6104(c)(3) (differentiating between disclosure to state officials of donors to § 501(c)(3) 

organizations and other § 501(c) organization types). The tax code specifically protects § 

501(c)(3) donor lists from public disclosure. 26 U.S.C. § 6104(d)(3)(A). Indeed, the Citizens 

United Court specifically noted that that organization had disclosed its donors in the past, 

something the Independence Institute has not done, and will not do. Citizens United, 558 U.S. at 

370 (“Citizens United has been disclosing its donors for years”) (emphasis added). 

d. The D.C. Circuit recognized the need to protect issue speech in Buckley v. 

Valeo, which remains binding precedent in this Circuit.

In Buckley v. Valeo, prior to the Supreme Court’s decision, the D.C. Circuit en banc 

rejected FECA’s attempt to reach organizations 

who publish[] or broadcast[] to the public any material referring to a candidate 

(by name, description, or other reference) advocating the election or defeat of 

such candidate, setting forth the candidate's position on any public issue, his 

voting record, or other official acts (in the case of a candidate who holds or has 

held Federal office), or otherwise designed to influence individuals to cast their 

votes.

Buckley v. Valeo, 519 F.2d 821, 869-870 (D.C. Cir. 1975) (emphasis added) (quoting 2 U.S.C. § 

437a (repealed by Federal Election Campaign Act Amendments of 1976 Pub. L. 94-283 § 105 90 

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Stat. 475, 481 (1976))) aff’d in part and rev’d in part 424 U.S. 1 (1976). This portion of the 

Circuit’s decision was not appealed. Buckley, 424 U.S. at 11 n. 7. Consequently, it remains the 

law of this Circuit.

The Buckley decision noted that “section 437a [was] susceptible to a reading 

necessitating reporting by groups whose only connection with the elective process arises from 

completely nonpartisan public discussion of issues of public importance.” Buckley, 519 F.2d at 

870 (emphasis added). For example, the court highlighted that the statute “also demand[ed] 

disclosure by plaintiff New York Civil Liberties Union” among other examples of established 

public policy organizations. Id. at 871. Despite the civil liberty organization’s internal ban on 

supporting or opposing to candidates, § 437a would still have triggered disclosure because “[t]he 

organization also publicize[d] in newsletters and other publications the civil liberties voting 

records, positions and actions of elected public officials, some of whom [were] candidates for 

federal office.” Id. at 871.

Left unchecked, the statute in Buckley 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)). Judge Tamm, writing 

separately, said he could “hardly imagine a more sweeping abridgement of first amendment 

associational rights... I can conceive of no governmental interest that requires such sweeping 

disclosure of all groups who take a stand on a public issue or report voting records....” Id. at 914 

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

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Like the subsequent Supreme Court opinion, the D.C. Circuit’s Buckley opinion 

recognized that “compelled disclosure...can work a substantial infringement on the associational 

rights of those whose organizations take public stands on public issues.” Id. at 872 (citing 

NAACP v. Alabama, 357 U.S. at 462; Bates, 361 U.S. at 522-524). Even though “discussion of 

important public questions can possibly exert some influence on the outcome of an election," 

organizations engaged in such speech may have only a "tenuous" connection to elections when 

compared to explicitly political groups. Id. at 872-73. Simply put, “groups seeking only to 

advance discussion of public issues or to influence public opinion cannot be equated to groups 

whose relation to political processes is direct and intimate.” Id. at 873. And where it does equate 

these groups, the government fails to tailor its interest in an informed electorate to the 

infringement of a donor’s right to anonymously associate with non-electoral entities.

These principles—unmodified by the subsequent Supreme Court decision—remain good 

law in this Circuit. As a group that advances the discussion of issues, the Independence Institute 

“cannot be equated to groups whose relation to political processes is direct and intimate.” Id. at 

873. Yet by running an issue advertisement, the organization is caught in the net of BCRA’s 

electioneering communications definition and disclosure provisions. That result is 

unconstitutional.

e. BCRA’s electioneering communications definition and disclosure 

regulations unconstitutionally burden the rights of the Independence 

Institute and its donors to freedom of speech and association.

The Independence Institute’s planned advertisement is genuine issue speech. Because of 

BCRA’s expansive definition of “electioneering communication,” mere mention of a candidate 

in an advertisement 30 days before a primary or 60 days before a general election triggers 

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reporting and disclosure requirements. See 52 U.S.C. § 30104(f)(3)(A)(i). Issue speech is not 

exempted or otherwise protected. 

Further, the electioneering communications disclosure law impermissibly burdens the 

freedom of association of the Independence Institute’s donors. Their privacy is destroyed by the 

public disclosure of their names and addresses. 52 U.S.C. § 30104(f)(2)(F).

i. BCRA fails to tailor its disclosure demand to an appropriate 

governmental interest

The Independence Institute concedes that speech advocating for an electoral result may 

constitutionally trigger disclosure. Buckley, 424 U.S. at 80 (“as construed [the statute] bears a 

sufficient relationship to a substantial governmental interest... for it only requires disclosure of 

those expenditures that expressly advocate a particular election result”). In such instances, there 

is a “strong” governmental interest in “disclosure [which] helps voters to define more of the 

candidates’ constituencies.” Id. at 81. But BCRA captures too much speech for too little purpose, 

and accordingly, is not “closely drawn to avoid unnecessary abridgment of associational 

freedoms.” Id. at 25. The Institute is not a “constituency” of any candidate. Issue speech, such as 

the Independence Institute’s proposed advertisement, does not encourage an electoral outcome.

Without a valid informational interest in the Institute’s donors, the electioneering 

communication regime fails exacting scrutiny, which “demand[s] a close fit between ends and 

means... [to] prevent[] the government from too readily sacrificing speech for efficiency.” 

McCullen v. Coakley, 573 U.S. ___, ___, 134 S. Ct. 2518, 2534-2535 (2014) (internal citation 

and punctuation omitted). American voters may have an interest in knowing who is supporting 

and opposing candidates—a valid “end”—but that interest is not implicated here. And the chosen 

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“means”—disclosure of donors to an educational nonprofit that merely mentions a state’s sitting 

U.S. senators—has no connection, in this case, to that ephemeral interest.

ii. BCRA’s electioneering communication definition is overly broad 

and makes no exception for genuine issue speech.

Because of BCRA’s expansive definition of electioneering communication, mere mention 

of a candidate in an advertisement 60 days before a general election triggers reporting and 

disclosure requirements. 52 U.S.C. §§ 30104(f)(3)(A)(i); 11 C.F.R. § 100.29. This provision 

impermissibly blurs the line between candidate advocacy, which may be regulated, and issue 

advocacy, which generally cannot. See Buckley, 424 U.S. at 42-44. Thus, the law chills the 

Independence Institute’s speech by forcing the organization to register and report its

advertisement as an electioneering communications in order to engage in issue advocacy.

It is true that the line between issue advocacy and the candidate advocacy may not always 

be clear. Buckley, 424 U.S. at 42 (“the distinction between discussion of issues and candidates 

and advocacy of election or defeat of candidates may often dissolve in practical application”). 

But the express advocacy and functional equivalent of express advocacy tests, as articulated by 

the Supreme Court, are designed to prevent campaign finance law from capturing issue speech. 

The D.C. Circuit’s Buckley opinion demonstrated this, by requiring a nexus between the 

disclosure and actual political activity—not the mere mention of a candidate, his voting record, 

or his policy positions. Buckley, 519 F.2d at 872-73.

BCRA § 201 fails this test. By regulation, the use of a candidate’s nickname, likeness, or 

photograph qualifies as mention of a clearly identified candidate. 11 C.F.R. § 100.29(b)(2). This 

leaves the Independence Institute with the difficult choice between remaining silent on an 

important issue, or risking regulation and disclosure under the electioneering communications 

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provisions of BCRA. Even though the proposed advertisement is not an appeal to vote for or 

against Senator Udall, nor is it pejorative, the nonprofit is regulated as if it is conducting 

electoral activity. BCRA chills speech because it fails to exempt the genuine issue speech of the 

Independence Institute, and thus fails the “strict test” of exacting scrutiny. Buckley, 424 U.S. at 

66.

All of this might make sense in the context of actual “electioneering.” But the 

Independence Institute is prohibited by the tax laws from advocating for or against candidates.

Its advertisement does not do so. Put differently, the constitutional objection to donor disclosure 

can be put aside for “political committees” or “election” advertisements. But as the Institute is 

not a political committee, and its advertisement does not even allude to an election, the 

governmental interests undergirding these burdensome requirements simply do not apply.

iii. BCRA’s electioneering communication disclosure system is 

burdensome to the Independence Institute and its donors. 

Once triggered, BCRA’s electioneering communication disclosure system is burdensome: 

speakers must reveal the names and addresses of donors who give $1,000 or more. 52 U.S.C. §§ 

30104(f)(2)(E) and (F). It is particularly pernicious to § 501(c)(3) organizations, whose donors 

are usually protected from public disclosure by the Internal Revenue Code. 26 U.S.C. § 6104(b). 

The Independence Institute is left with the unconstitutional choice between staying silent on 

issues important to its mission or disclosure of its donors. 

An organization must file an electioneering communications report once it spends more 

than $10,000 on qualifying communications. 52 U.S.C. § 30104(f)(1). The report is required 

within approximately 24 hours of the disbursement of funds. 52 U.S.C. § 30104(f)(1); 52 U.S.C. 

§ 30104(f)(4) (defining “disclosure date” as “the first date during any calendar year by which a 

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person has made [qualifying] disbursements for... electioneering communications...; and any 

other date during such calendar year by which a person has made [qualifying] disbursements 

for... electioneering communications... since the most recent disclosure date for such calendar 

year”); but see 11 C.F.R. § 104.20(b) (“[e]very person who has made an electioneering 

communication, as defined in 11 C.F.R. 100.29... shall file a statement with the Commission by 

11:59 p.m. Eastern Standard/Daylight Time on the day following the disclosure date”). 

The report requires the name and address of anyone who gives more than $1,000 for an 

electioneering communication—if the funds to pay for the electioneering communication came 

out of a special, segregated account described in 52 U.S.C. § 30104(f)(2)(E). But if the funds 

used to pay for the electioneering communication came from an account not described in 52 

U.S.C. § 30104(f)(2)(E), then “the names and addresses of all contributors who contributed an 

aggregate amount of $1,000 or more to the person” must be disclosed. 52 U.S.C. § 

30104(f)(2)(F) (emphasis added). While the FEC has interpreted BCRA disclosure under 52 

U.S.C. § 30104(f)(2)(E) as limited to donations earmarked for electioneering communications, 

the status of the FEC’s regulation is in doubt. 11 C.F.R. § 104.20(c)(9); Center. for Individual 

Freedom v. Van Hollen, 694 F.3d 108, 112 (D.C. Cir. 2012) (ordering FEC to consider a 

proposed rulemaking to clarify the justification of the rule, or absent a new rulemaking, ordering 

the district court to perform a Chevron step two analysis). Thus an organization faces the very 

real possibility of being required to disclose all of its donors, should it disseminate an 

electioneering communication. But even disclosure of some of its donors poses grave First 

Amendment harm. 

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This harm is significant. If it wishes to run its advertisement, the Institute must choose 

whether to disclose its donors or risk violating the law. 

III. First Amendment violations, even for a brief time, are irreparable harm.

The Supreme Court has directly held that “[t]he loss of First Amendment freedoms, for 

even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 

U.S. 347, 373 (1976) (internal citation and quotation marks omitted).

Here, federal electioneering communication disclosure laws impose an unconstitutional 

restriction on the activity of the Independence Institute by regulating as “electioneering” what is, 

in fact, a discussion of public policy with no connection to a political campaign. During the 

electioneering communications window, BCRA effectively silences the Independence Institute 

by forcing it to otherwise waive its First Amendment rights. This is no small constitutional 

curtailment. As the Supreme Court expressed in Thomas v. Collins: 

The restraint is not small when it is considered what was restrained. The right is a 

national right, federally guaranteed. There is some modicum of freedom of 

thought, speech and assembly which all citizens of the Republic may exercise 

throughout its length and breadth, which no State, nor all together, nor the Nation 

itself, can prohibit, restrain or impede. 

323 U.S. 516, 543 (1945). The rights of the Independence Institute and its members are 

restrained by BCRA’s broad electioneering communication regulation. Such injury is irreparable. 

IV. The balance of interests favors granting the Independence Institute’s motion.

Absent intervention by this Court, the Independence Institute fears its proposed 

advertisement will trigger regulation and disclosure as an electioneering communication. 

Without this Court’s protection, it will have to remain silent. And while this case involves the 

very real and important rights the First Amendment guarantees, it examines only a small portion 

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of the nation’s campaign finance laws: a challenge to the electioneering communication rules as 

applied to a particular issue advertisement. The injunction would reach no further than the 

specific activity of the Independence Institute. 

Therefore, while the public interest in upholding the Independence Institute’s rights is

great, the relative impact on the administration of BCRA’s campaign finance laws is slight. The 

balance of harms favors the Independence Institute.

V. The public interest is served by protecting the First Amendment rights to 

speech and association. 

Since no party has an interest in the enforcement of an unconstitutional law, the public 

interest is best protected by issuing a preliminary injunction. Gordon v. Holder, 721 F.3d 638, 

653 (D.C. Cir. 2013) (“the court acknowledged the obvious: enforcement of an unconstitutional 

law is always contrary to the public interest”) (internal citations omitted). 

Conclusion

For the foregoing reasons, a preliminary injunction should be issued preventing 

Defendant from enforcing BCRA’s electioneering communications definitions and disclosure

laws—52 U.S.C. § 30104(f) —as applied to the specified activity of the Independence Institute. 

Respectfully submitted this 4th day of September, 2014. 

s/ Allen Dickerson

Allen Dickerson (DC Bar No. 1003781)

Tyler Martinez*

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

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Counsel for Plaintiff

*Admission pro hac vice pending

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IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA

INDEPENDENCE INSTITUTE, a Colorado 

nonprofit corporation,

Plaintiff,

v.

FEDERAL ELECTION COMMISSION,

Defendant.

)

)

)

)

)

) Civil Action No. 1:14-cv-01500-CKK

)

)

)

)

)

)

CERTIFICATE OF SERVICE

I hereby certify that on the 4th day of September, 2014, the foregoing Motion for a 

Preliminary Injunction and Memorandum of Law in Support of Motion for a Preliminary 

Injunction were served on the following, via first class mail:

Lisa J. Stevenson, 

Deputy General Counsel – Law

Federal Election Commission

999 E Street, N.W.

Washington, D.C. 20436

Phone: 202.694.1650

Facsimile: 202.219.0260

Counsel for Defendant, FEC

Eric H. Holder,

United States Attorney General

U.S. Department of Justice

950 Pennsylvania Avenue, N.W.

Washington, D.C. 20530

Nancy Erickson

Secretary of the Senate

United States Senate

Washington, D.C. 20510-6601

Karen L. Haas

Clerk of the House of Representatives

U.S. House of Representatives

U.S. Capitol, Room H154

Washington, D.C. 20515-6601

Civil Process Clerk

U.S. Attorney’s Office

555 Fourth Street, N.W.

Washington, D.C. 20530

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/s/ Allen Dickerson

Allen Dickerson (DC Bar No. 1003781)

Center for Competitive Politics

124 S. West Street, Suite 201

Alexandria, Virginia 22314

Telephone: 703-894-6800

Facsimile: 703-894-6811

adickerson@campaignfreedom.org

Counsel for Plaintiff

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Case 1:14-cv-01500-CKK Document 5-3 Filed 09/04/14 Page 2 of 2