Case No. 14-5249

IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

INDEPENDENCE INSTITUTE, a )

Colorado nonprofit corporation, )

)

Appellant, )

)

v. )

)

FEDERAL ELECTION )

COMMISSION, )

)

Appellee. )

Appellant Independence Institute’s Reply in Support

of Its Motion for Summary Reversal 

Allen Dickerson (D.C. Cir. No. 54137)

Tyler Martinez (D.C. Cir. No. 54964)

CENTER FOR COMPETITIVE POLITICS

124 S. West St., Suite 201

Alexandria, VA 22314

(703) 894-6800

Fax: (703) 894-6811

adickerson@campaignfreedom.org

December 29, 2014

USCA Case #14-5249 Document #1529443 Filed: 12/29/2014 Page 1 of 13
INTRODUCTION

Unless the Independence Institute’s claim has been necessarily foreclosed by 

a decision of the Supreme Court, this case must be heard by a three-judge district 

court. 52 U.S.C. § 30110 note. The Parties disagree on two substantive questions. 

First, when the Supreme Court reviewed commercial advertisements for a feature 

film designed to defeat Hillary Clinton’s presidential candidacy, did the Court also 

address advertisements not before it that simply take a position on specific 

legislation? Second, what is the legal effect of a recent change in campaign finance 

law due to Van Hollen v. FEC, 2014 U.S. Dist. LEXIS 164833 (D.D.C. Nov. 25, 

2014)? That case substantially broadened the scope of publicized donor disclosure 

beyond that reviewed by the Supreme Court in Citizens United v. FEC, 558 U.S. 

310 (2010) and the district court below.

If the answer to the first question is “no,” or the Institute is correct that Van 

Hollen changes the legal landscape so as to present legal questions that have not 

been heard in the Supreme Court, summary reversal is appropriate.

i. Citizens United does not foreclose the Institute’s claim.

Under the statute challenged here, a non-political, non-profit organization 

may be required to publicly disclose all of its significant donors as a condition of 

asking citizens to contact their representatives concerning a pending piece of 

legislation. The FEC does not dispute that this is a correct description of the 

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statute. Nor does the Commission have a substantive response to the fact that 

Buckley v. Valeo—as heard both in the Supreme Court and, en banc, by this 

Court—puts the constitutionality of such statutory schemes in serious doubt.

Appellant Combined Mot. for Summ. Rev. and Response to FEC Mot. for Summ. 

Affirmance at 14-22, 29 (“II Cross-Mot.”); Buckley v. Valeo, 519 F.2d 821, 869-

870, 878 (D.C. Cir. 1975) (en banc) (unconstitutional to require generalized donor 

disclosure when an organization “broadcast[] to the public any material referring to 

a 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)).” 

Nevertheless, the Commission insists that the Institute’s claim is not merely 

misguided or wrong, but that it is “insubstantial” and “wholly foreclose[d].” FEC 

Reply and Opp. at 3, 5 (“FEC Reply”). Its only support for this position is a 

truncated portion of a single decision—Citizens United—excised from the case as 

a whole and from the body of jurisprudence that surrounds and illuminates it. FEC 

Reply at 3-4, 10, 18 (The Institute “seeks to relitigate the precise constitutional 

question that the Supreme Court answered...in Citizens United v. FEC”; “Citizens 

United makes that conclusion inescapable”; “Citizens United...is squarely on all 

fours with this case”).

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The Commission’s misreading of Citizens United rests on three elementary 

errors. 

The first, and most basic, is a misunderstanding of exacting scrutiny, which 

has two components: a “sufficiently important” governmental interest, and a 

“’substantial relation’ between the disclosure requirement” and that interest. 

Citizens United, 558 U.S. at 366-67 (quoting Buckley v. Valeo, 424 U.S.1, 64, 66

(1976)). The Commission has consistently stated that “the EC disclosure 

requirements survive exacting scrutiny based on ‘the informational interest 

alone.’” FEC Reply at 11 (citing Citizens United, 558 U.S. at 369). But this point 

only goes to the first prong of exacting scrutiny. The question is what, precisely,

the “informational interest” includes, and whether the disclosure requirements 

imposed by BCRA—especially after Van Hollen—bear a substantial relation to 

that properly-constrained interest.

The FEC’s second, and related, error is its consistent failure to grapple with 

the Institute’s argument: that Buckley found disclosure requirements appropriately 

tailored only when limited to organizations engaged in “unambiguously campaign 

related” speech. Buckley, 424 U.S. at 81. Only this type of disclosure serves the 

informational interest by “help[ing] voters...define more of the candidates’ 

constituencies.” Id.; II Cross-Mot. at 16-17.

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The district court’s opinion does not so much as reference the 

“unambiguously campaign related” standard. For its part, the FEC finally grapples 

with this argument in its opposition brief by claiming that, because the Citizens 

United Court declined to limit BCRA’s disclosure requirements to “the functional 

equivalent of express advocacy,” that the Court, in essence, overruled Buckley’s 

limitation of disclosure to speech that is “unambiguously campaign related.” FEC 

Reply at 12. This is an odd reading, if only because the Citizens United Court 

failed to even mention the Buckley “unambiguously campaign related” standard.

The Commission’s view makes little sense on its face: express advocacy 

(and its equivalents) are but a small subset of speech that is related to campaigns.

To take only two examples, nonpartisan discussions of voting trends, or

advertisements intended to generally raise voter turnout, are related to campaigns,

but do not advocate for particular candidates. In essence, the FEC’s position is that 

because the Court has found that all apples (express advocacy and its equivalents) 

are fruit (unambiguously campaign related), therefore all produce (political speech 

that mentions a candidate) is fruit. FEC Reply at 12 (the Institute’s contention that 

“‘all of the communications at issue in Citizens United were unambiguously 

campaign related’ – is just a reformulation” of the claim that the ads in Citizens 

United were “the functional equivalent of express advocacy.”) (emphasis in 

original). But Buckley was very clear on this point. To press the analogy:

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disclosure can only be required of fruit sellers, and not all produce is fruit. 424 

U.S. at 80 (“To insure that the reach of [disclosure] is not impermissibly broad...[it 

must be] directed precisely to spending that is unambiguously related to the 

campaign of a particular federal candidate”). The Citizens United Court did not 

rule, contrary to Buckley, that any speech that merely names a candidate is subject 

to compulsory disclosure. 

The Commission’s third error is to conflate the advertisements at issue in 

Citizens United with those at issue here. That topic has already been adequately 

explored in the Institute’s opening brief on appeal. 1 II Cross-Mot. at 6-7, 7 n. 4 

(comparing text of ads for Hillary with the Institute’s proposed communication); 

29 (same). The Citizens United Court found “‘the informational interest alone is 

sufficient to justify application of [the EC disclosure requirements] to these ads.’” 

558 U.S. at 369 (emphasis supplied). Citizens United merely decided the case that 

was before the Court at that time—a case that is easily distinguished from this one.

1 The Hillary advertisements clearly discuss Senator Clinton’s candidacy generally 

and her fitness for office in particular. The Commission’s insistence that the 

Institute has “fail[ed] to identify any other references to Hillary Clinton that it 

contends are comments on her candidacy or fitness for office” outside of the 

context of the “Pants” ad—which suggests the only “kind word” that could be said 

about a candidate for the Presidency is that she has good fashion sense—is, simply, 

bluster. FEC Reply at 13. All of Citizens United’s ads center on a candidate for 

President, for the purpose of encouraging viewers to watch a movie that functioned 

as express advocacy against that candidate. See, e.g., Citizens United v. FEC, 530 

F. Supp. 2d 274,276, n. 4 (D.D.C. 2008) (advertisement stating “Hillary is the 

closest thing we have in America to a European socialist”).

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ii. The Van Hollen decision has materially altered the 

relevant law.

Even if Citizens United did foreclose the Institute’s case, the present BCRA 

disclosure regime bears little resemblance to the one reviewed by that Court or by 

Judge Kollar-Kotelly below. As the Institute anticipated when it brought its suit, 

the BCRA disclosure regime has been undone by the recent decision in Van Hollen 

v. FEC, which struck down 11 C.F.R. 104.20(c)(9). V. Compl. ¶55 (Dist. Ct. Dkt.

No. 1). The FEC specifically promulgated this regulation to prevent

“corporations...[from being] required to report the sources of funds that made up 

their general treasury funds.” 72 Fed. Reg. 72899, 72910 (Dec. 26, 2007).

Without the FEC’s narrowing construction, all of the Institute’s donors

giving over $1,000 in aggregate since “the first day of the preceding calendar 

year”—not simply those who earmark funds for an electioneering 

communication—must be publicly disclosed. 52 U.S.C. § 30104(f)(2)(F). Nothing 

in the Supreme Court’s terse discussion of disclosure under BCRA indicates that 

the Court would have approved of such a far-reaching scheme. Wisconsin Right to 

Life v. Barland, 751 F.3d 804, 836 (7th Cir. 2014) (“The [Citizens United] Court’s 

language relaxing the express-advocacy limitation applies only to the specifics of 

the disclosure requirement at issue there”) (emphasis supplied). If nothing else, this 

change in the law necessitates new, as-applied review by a three-judge court. The 

Supreme Court cannot foreclose that which it has not reviewed.

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 Nevertheless, the Commission makes the astonishing argument that 11 

C.F.R. § 104.20(c)(9) is “irrelevant” because it was merely “an FEC implementing 

regulation that is not at issue in this challenge to statutory provisions of the 

Federal Election Campaign Act...that the Supreme Court has twice upheld.” FEC 

Reply at 1 (emphasis FEC’s).

This is not only contrary to law—an agency’s properly-promulgated rules 

have the same effect as statutes—it is contrary to the FEC’s repeated assertions in 

this very case.

2 Below, the Commission averred that 11 C.F.R. § 104.20(c)(9) 

“remains valid, in force, and binding on the Commission.” FEC Opp. to Pl. App. 

for a Three-Judge Court (Dist. Ct. Dkt. No. 16) at 9 n. 5. It stated that “[t]he 

disclosure requirements for [the Institute], however, are even narrower than the 

statute, because...FEC regulations limit the scope of disclosure.” FEC Mem. of 

Law in Opp. to Pl.’s Mot. for Prelim. Injunction (Dist. Ct. Dkt. No. 19) at 33. And 

the Commission attempted to limit the constitutional harm at issue here, and have 

the Institute’s case dismissed, by stating that “[t]o the extent plaintiff’s alleged 

injury is fear of having to disclose every donor who gives more than $1,000 to the 

organization even if such donors do not earmark their donation or have no 

knowledge of the particular electioneering communication, that fear is baseless.” 

2 Contrary to its treatment of 11 C.F.R. § 104.20(c)(9) in this case, “the FEC did 

not appeal the decision” to strike that regulation down under Chevron step one.

Van Hollen, 2014 U.S. Dist. LEXIS 164833 at 2. Consequently, the successful 

defense of that regulation on appeal was left to third-party intervenors. Id. at 3.

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Id. (second emphasis supplied, citation and quotation marks omitted). In fact, the 

Commission maintained that “the applicable regulation, 11 C.F.R. § 104.20(c)(9), 

expressly preclude[d] such an interpretation.” Id. 

Now, by contrast, the Commission states that the Institute’s reference to the 

nullification of that same regulation, a limiting rule relied upon below by the FEC, 

is merely “a last-ditch effort to reinvigorate [this] appeal.” FEC Reply at 15.

The FEC attempts to argue that the Supreme Court never “relied upon...the 

regulation struck by the Van Hollen court.” FEC Reply at 16. This is misleading. 

The regulation was a part of the record: the opinion from which the Citizens United 

appeal arose explicitly cited 11 C.F.R. § 104.20(c)(9) in describing how BCRA’s 

electioneering communications disclosure regime functioned. Citizens United, 530 

F. Supp. 2d at 280. Moreover, the Citizens United Court simply reviewed the law 

before it, and in explaining that law, the Commission noted the limitations of 11 

C.F.R. 104.20(c) several times. Brief for Appellee at 5, 30, Citizens United v. FEC, 

No. 08-205 (“The statement must identify... all those who contributed ‘$1,000 or 

more to the corporation...for the purpose of furthering electioneering 

communications.’ 11 C.F.R. 104.20(c)”; “During discovery, appellant disclosed 

only those donations of $1000 or more that were made or pledged for the purpose 

of furthering the production or public distribution of appellant’s films regarding 

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then-Senators Clinton and Obama. See...11 C.F.R. 104.20(c)(9)” (emphasis in 

original)).

The Commission argues that 11 C.F.R. § 104.20(c)(9) was struck down on 

administrative law grounds, which, while certainly true, hardly mitigates the new 

burden imposed on the Institute, particularly in light of the FEC’s obvious 

intention to enforce the new, broader reading of the law against the Institute. FEC 

Reply at 16-17. No court, let alone the Supreme Court, has reviewed the BCRA 

disclosure regime, as modified by Van Hollen, under a First Amendment analysis. 

This alone necessitates the composition of a three-judge court to hear the 

Institute’s case.

Finally, the Institute has noted the somewhat uncomfortable fact that, under 

current law, it would have to provide greater disclosure for its planned ad than for 

an advertisement (which it may not legally run) stating “vote for Candidate Smith.” 

II Cross-Mot. at 24. The FEC responds that because “[t]he EC provisions were part 

of an effort by Congress to address gaps in the preexisting disclosure regime... [i]t 

is thus unsurprising that the EC provisions are in some respects more 

comprehensive than the disclosure requirements for [express advocacy].” FEC 

Reply at 18-19. Perhaps so. But the Commission can point to no court ruling 

stating that it is constitutional to regulate the mere mention of a candidate more 

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strongly than an explicit endorsement. Again, this significant change alone

necessitates the empaneling of a three-judge court to hear the Institute’s case.

The FEC is wrong to contend that a regulation it considered key to defeating 

the Institute’s case in its earlier briefing, a regulation that limited the constitutional 

harm of the EC regime, and which was explained to both the district court here and 

the Supreme Court in Citizens United, is in fact irrelevant.3

 

CONCLUSION

Because Citizens United does not foreclose the Institute’s claim, especially 

in light of Van Hollen v. FEC, summary reversal is appropriate.

Respectfully submitted,

Allen Dickerson (D.C. Cir. No. 54137)

Tyler Martinez (D.C. Cir. No. 54964)

CENTER FOR COMPETITIVE POLITICS

124 S. West St., Suite 201

Alexandria, VA 22314

December 29, 2014 (703) 894-6836

3 The Commission raises a number of other points that are quickly dispatched. It 

complains of the Independence Institute’s “baseless allegations of procedural 

deficiencies,” and that the Institute has “repeat[ed] the same arguments it made to 

the district court.” FEC Reply at 10, 1, 3, The Institute does not complain that the 

district court reached the merits, but rather that a single judge of the district court 

did so, as opposed to the statutorily mandated three-judge court. Similarly, it is the 

nature of appellate review to present arguments already reviewed by the district 

court. To do otherwise would risk waiver of those argument. Lemusu v. U.S. Dep’t 

of Justice, 344 Fed. Appx. 621, 622 (D.C. Cir. 2009). These various objections, 

which take up pages of the FEC’s brief, are groundless and distract from the 

relevant issues in this appeal.

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IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

INDEPENDENCE INSTITUTE, a )

Colorado nonprofit corporation, )

)

Appellant, )

)

v. ) Case No. 14-5249

)

FEDERAL ELECTION ) CERTIFICATE OF SERVICE

COMMISSION )

)

Appellee. )

CERTIFICATE OF SERVICE

I hereby certify that on December 29, 2014, I electronically filed the 

Independence Institute’s Combined Reply in Support of Its Motion for Summary 

Reversal and in Opposition to Appellee’s Cross-Motion for Summary Affirmance

with the Clerk of the United States Court of Appeals for the D.C. Circuit by using 

the Court’s CM/ECF system, and I caused four paper copies to be delivered to the 

Court pursuant to Circuit Rule 27(b). 

Service was made on the following through CM/ECF:

Erin Rebecca Chlopak, echlopak@fec.gov

Michael Andrew Columbo, mcolumbo@fec.gov

Kevin Andrew Deeley, kdeeley@fec.gov

Federal Election Commission

999 E Street, N.W.

Washington, D.C. 20463

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/s/ Allen Dickerson

Allen Dickerson (D.C. Cir. No. 54137)

CENTER FOR COMPETITIVE POLITICS

124 S. West St., Suite 201

Alexandria, VA 22314

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