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.

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) Case No. 14-5249

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Appellant Independence Institute’s Combined

Motion for Summary Reversal and Response to Federal Election 

Commission’s Motion for Summary Affirmance

Introduction

Appellant Independence Institute hereby responds to the Federal Election 

Commission’s (“FEC” or “Commission”) Motion for Summary Affirmance. 

Additionally, Appellant moves for summary reversal of the district court’s ruling

and an order convening a three-judge district court pursuant to the Bipartisan 

Campaign Reform Act of 2002 (“BCRA”) Pub. L. No. 107-155 § 403, 116 Stat. 

81, 113-14 (2002) (codified at 52 U.S.C. § 30110 note). 

The Independence Institute sought to air a radio advertisement in the weeks 

leading up to the 2014 election. That advertisement dealt solely with a legislative 

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issue: federal sentencing reform. The advertisement exhorted the listener to contact 

his or her United States senators and tell them to support a particular sentencing 

reform measure, the Justice Safety Valve Act. One of the two senators mentioned 

in the ad, Mark Udall, was seeking re-election. Even though the ad does not, in any 

sense, “electioneer,” it falls within the Bipartisan Campaign Reform Act’s 

definition of an “electioneering communication.” Because of this fact, if the 

Institute runs its ad, federal law requires the Institute to publicly disclose its 

donors.

This raises two constitutional issues. First, in the campaign finance context,

the Supreme Court has explicitly limited donor disclosure to situations where an 

organization’s speech is “unambiguously campaign related,” so as to protect issue 

speech from governmental regulation. While it is true that the Court has upheld 

donor disclosure for “electioneering communications” facially (in McConnell v. 

FEC, 540 U.S. 93 (2003)) and as-applied to commercial advertisements for a film 

critical of then-Senator Hillary Clinton’s 2008 presidential candidacy (in Citizens 

United v. FEC, 558 U.S. 310 (2010)), it has never been asked to rule on an asapplied challenge concerning the sort of genuine issue speech involved here. 

Indeed, the last time the government sought to regulate issue speakers in a similar 

matter, the Supreme Court narrowed the reach of the statute to protect genuine 

issue speakers. Buckley v. Valeo, 424 U.S. 1, 44, 79-80 (1976). 

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Second, at the time of filing, the FEC insisted that only contributors who 

earmarked their contributions for “electioneering communications” would be 

publicly disclosed, pursuant to a Commission regulation. Mere hours after the FEC 

filed its Motion, a federal court struck down that regulation. This significantly 

raises the stakes in this case, as the Institute explicitly noted when it filed its 

lawsuit. If the ad at issue here were to air in sufficient proximity to an election, all 

donors who gave more than $1,000 to the Institute—a Section 501(c)(3) charity 

whose donors are kept private by operation of federal tax law—would be publicly 

disclosed. See, e.g., 26 U.S.C. 6104(d)(3)(A) (a § 501(c)(3) Form 990 “shall not 

require the disclosure of the name or address of any contributor of the 

organization”); 26 U.S.C. § 6104(b) (providing for disclosure of the organization’s 

name and address, but “[n]othing in this subsection shall authorize the Secretary 

[of the Treasury] to disclose the name or address of any contributor to any 

organization or trust”). This is, again, a circumstance the Supreme Court has never 

addressed, for the simple reason that this was not the law when Citizens United 

was decided. Citizens United v. FEC, 540 F. Supp. 2d 274, 280 (D.D.C. 2008) 

(“requiring that any corporation spending more than $10,000 in a calendar year to 

produce or air electioneering communications must file a report with the FEC that 

includes—among other things—the names and addresses of anyone who 

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contributed $1,000 or more in aggregate to the corporation for the purpose of 

furthering electioneering communications”) (emphasis supplied). 

This is not a brief on the merits of either claim. That is because Congress has 

commanded that constitutional questions of this type must be heard by a threejudge district court. This is a novel challenge that deals with distinct facts and law 

that were not before the Citizens United Court. Consequently, the district court

below erred in determining, without holding a hearing, that Supreme Court 

precedent necessarily forecloses the Institute’s claims. The appropriate remedy is 

to summarily reverse that decision, and allow for full consideration of the merits as 

Congress intended. 52 U.S.C. § 30110 note (constitutional challenges “shall be 

filed in the United States District Court for the District of Columbia and shall be 

heard by a 3-judge court convened pursuant to section 2284 of title 28, United 

States Code”) (emphasis supplied).

Factual and Legal Background

I. In district court, the Independence Institute challenged BCRA’s 

electioneering communication disclosure as applied to a proposed 

advertisement discussing federal sentencing reform.

The Independence Institute is a Denver, Colorado-based nonprofit 

corporation organized under the Internal Revenue Code and Colorado law. 26 

U.S.C. §§ 501(c)(3) (charity status) and 170(b)(1)(A)(vi) (public charityfoundation status for revenue generated by donations from the general public); 

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COLO. REV. STAT. §§ 6-16-103(1) (defining “charitable organization”); 7-121-101 

et seq. (“Colorado Revised Nonprofit Corporation Act”) (2014). Established in 

1985, the Independence Institute has a long history of conducting research and 

educating the public on various aspects of public policy, including taxation, 

education policy, health care, and justice policy.

To further this mission, the Institute wished to run a radio advertisement

supporting the Justice Safety Valve Act. The ad would urge viewers to contact 

both of Colorado’s sitting senators and express support for the Act, which is 

pending before the Senate. One of Colorado’s senators, Mark Udall, also happened 

to be a candidate for reelection.1 The proposed advertisement did not discuss or 

refer to his candidacy in any way. Nevertheless, the Institute’s proposed ad would 

qualify as an electioneering communication under BCRA, simply because it 

mentioned Udall’s name within 60 days of the general election.

Much of the FEC’s motion for summary affirmance seeks to apply Citizens 

United to the facts of this litigation. See Mot. for Summ. Affirm. at 16. Since both 

cases are as-applied challenges, it is helpful to compare the ads at issue in each. 

1 The Institute brought the action just before the BCRA’s electioneering 

communications window. The 2014 election passed. But the Institute agrees with 

the FEC: this case fits “within the exception to mootness for disputes capable of 

repetition, yet evading review.” Mot. for Summ. Affirm. at 10 n.2. (citing FEC v. 

Wis. Right to Life, 551 U.S. 449, 461-64 (2007) (“WRTL II”)). 

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Independence Institute’s Ad2 Citizens United’s Ad3

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. 

The script for the television 

advertisement, "Wait" reads as follows:

[Image(s) of Senator Clinton on screen]

"If you thought you knew everything 

about Hillary Clinton . . . wait 'til you 

see the movie." 

[Film Title Card] 

[Visual Only] Hillary: The Movie. 

[Visual Only] 

www.hillarythemovie.com

2 V. Compl. ¶ 35, ECF 1; cf Mem. Op. at 2 n.2 ECF 24. 

3 Citizens United v. FEC, 530 F. Supp. 2d 274, 276 n.2 (D.D.C. 2008) aff’d in part 

and rev’d in part, 558 U.S. 310.

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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.

While the Citizens United’s “Wait” ad overtly discussed then-Senator Hillary 

Clinton and made implications about her fitness for office, Citizens United wished 

to run two other ads that spoke in an even more “pejorative” fashion about her 

candidacy.4 Citizens United v. FEC, 558 U.S. at 320 (“Each ad includes a short 

(and, in our view, pejorative) statement about Senator Clinton...”). 

4 As the Citizens United district court described the other ads:

The script for the television advertisement, “Pants” reads as follows: 

[Image(s) of Senator Clinton on screen] 

“First, a kind word about Hillary Clinton: [Ann Coulter Speaking & Visual] 

She looks good in a pant suit.”

“Now, a movie about the [sic] everything else.”

[Film Title Card] 

[Visual Only] 

Hillary: The Movie. 

[Visual Only] www.hillarythemovie.com 

The script for the television advertisement, “Questions” reads as follows: 

[Image(s) of Senator Clinton on screen] 

“Who is Hillary Clinton?” 

[Jeff Gerth Speaking & Visual] “[S]he's continually trying to redefine 

herself and figure out who she is...” 

[Ann Coulter Speaking & Visual] “[A]t least with Bill Clinton he was just 

good time Charlie. Hillary's got an agenda...” 

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II. BCRA mandates disclosure of the Independence Institute’s donors if 

it runs the proposed advertisement. 

BCRA defines electioneering communications as 

[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). 

Any entity—including a nonprofit corporation—that spends over $10,000 on 

a qualifying communication must file a disclosure report with the FEC. 52 U.S.C. 

§ 30104(f)(1). The report discloses the names and addresses of all donors who 

gave more than $1,000 to the nonprofit. 52 U.S.C. § 30104(f)(2)(E) and (F). Under 

BCRA and the FEC’s regulations, any mention of a candidate within 60 days of a 

general election triggers such disclosure, regardless of context. See, e.g., 11 C.F.R. 

§ 100.29(b)(2). 

[Dick Morris Speaking & Visual] “Hillary is the closest thing we have in 

America to a European socialist”

“If you thought you knew everything about Hillary Clinton... wait 'til you 

see the movie.”

[Film Title Card] 

[Visual Only] Hillary: The Movie. In theaters [on DVD] January 2007. 

[Visual Only] www.hillarythemovie.com

Citizens United, 530 F. Supp. 2d at 276 nn.3 and 4 (sic notation supplied).

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Thus, the Institute’s challenge is twofold. BCRA’s electioneering 

communication definition is overbroad as applied to the Independence Institute. V. 

Compl. ¶114 (challenging 52 U.S.C. § 30104(f)(3)(A)(i)). Further, the disclosure 

requirements, which violate donor privacy for communications having nothing to 

do with a federal election, are overbroad as applied to the Institute’s proposed ad. 

V. Compl. ¶129 (challenging 52 U.S.C. § 30104(f)(1)-(2)). These claims have not 

been foreclosed by Supreme Court precedent. Nevertheless, the district court

denied the Independence Institute’s application for a three-judge court and reached 

the merits of the case. Mem. Op. at 6. 

III. The recent decision in Van Hollen v. FEC increases the burdens of 

disclosure for nonprofit organizations that may incidentally mention 

a candidate. 

The FEC’s motion, like its briefing below, assumes that disclosure of 

donors’ identifying information is limited to those who specifically support (or 

“earmark” their funds for) an organization’s electioneering communications:

As relevant here, if the EC is financed by a corporation, the 

corporation must report “the name and address of each person who 

made a donation aggregating $1,000 or more to the corporation . . . for 

the purpose of furthering electioneering communications.”

Mot. for Sum. Affirm. at 4 (quoting 11 C.F.R. § 104.20(c)(9)). The FEC’s motion 

asserting this earmarking limitation was filed mere hours before the United States 

District Court of the District of Columbia vacated the earmarking provision of 11 

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C.F.R. § 104.20(c)(9). Van Hollen v. FEC, No. 11-0766 slip op. at 3 (D.D.C. Nov. 

25, 2014) (attached as Exhibit 3). 

In its filings in district court, the Independence Institute repeatedly 

highlighted the possibility that Van Hollen might strike down the earmarking 

regulation promulgated by the Commission. As the Institute noted, such a ruling 

would intensify the unconstitutional burdens of disclosure. See, e.g. V. Compl. ¶¶ 

55 and 124; Mem. in Sup. for Mot. for Prelim. Inj. 24, ECF 5-1.

As a result of the Van Hollen ruling, any advertisement that mentions a 

candidate—even in an issue ad focused on official action—triggers disclosure if 

run within 30 days of a primary or 60 days of the general election. This disclosure 

will include all donors who gave more than $1,000 to the organization—regardless 

of the donor’s knowledge of or position on the advertisement. 

Argument

I. Standards of Review

The FEC correctly observes that this Court reviews the district court’s 

summary judgment ruling de novo. Mot. for Summ. Affirm. at 9. 

a. A three judge court must be convened unless the Supreme Court 

has “foreclose[d] the subject” and left “no room for the inference 

that the question sought to be raised can be the subject of 

controversy.”

The showing required to convene a three judge court is minimal, akin to that 

required to survive a motion to dismiss under Federal Rule of Civil Procedure

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12(b)(6). Goland v. United States, 903 F.2d 1247, 1257-1258 (9th Cir. 1990) 

(comparing § 437h certification standard to the three judge court provision of 28 

U.S.C. § 2284, and describing the showing required as “closely resemble[ing] that 

applied under Rule 12(b)(6)”). 

In Feinberg v. FDIC, 522 F.2d 1335 (D.C. Cir. 1975), this Court explained 

the circumstances under which a constitutional question is “substantial” enough to 

merit consideration by a three judge court. A three judge court is to be convened 

unless prior Supreme Court decisions have “foreclose[d] the subject” and left “no 

room for the inference that the question sought to be raised can be the subject of 

controversy.” Id. at 1339 (citations omitted). Consequently, this Court’s sister 

circuits have found narrow, as-applied challenges to be sufficiently “substantial”

for such consideration under similar provisions. Cao v. FEC, 688 F. Supp. 2d 498, 

533 (E.D. La. 2010) aff'd som. nom. Republican Nat’l Comm. v. FEC (In re Anh 

Cao), 619 F.3d 410 (5th Cir. 2010). 

For the FEC to prevail on its motion for summary affirmance, one facial 

challenge, McConnell v. FEC, 540 U.S. 93 (2003), and one as-applied challenge, 

Citizens United, must wholly foreclose all future as-applied challenges to BCRA § 

201’s regulation of electioneering communications. The FEC so argues. Mot. for 

Summ. Affirm. at 9-11. But the Supreme Court explicitly held that McConnell

does not foreclose future as-applied challenges. Wis. Right to Life, Inc. v. FEC, 546 

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U.S. 410, 411-12 (2006) (“WRTL I”) (holding that McConnell did not foreclose 

future challenges to BCRA § 203’s regulation of electioneering communications). 

Further, as discussed infra, the communications at issue in Citizens United differ 

substantially from the Independence Institute’s proposed advertisement. Here, this 

Court must decide whether those two cases close the courthouse door to all 

speakers wishing to mention a candidate—whatever the context—during the 

electioneering communications window. That is a particularly difficult burden to 

carry in light of Van Hollen.

b. Summary affirmance is disfavored. 

In contrast to the minimal showing required to empanel a three-judge court, 

this Court has consistently set a high bar for the extraordinary relief of summary 

affirmance. The “party seeking summary disposition bears the heavy burden of 

establishing that the merits of his case are so clear that expedited action is 

justified.” Taxpayers Watchdog, Inc. v. Stanley, 819 F.2d 294, 297 (D.C. Cir. 

1987). In order to summarily affirm the district court, “this [C]ourt must conclude 

that no benefit will be gained from further briefing and argument of the issues 

presented.” Id. at 298 (citing Sills v. Bureau of Prisons, 761 F.2d 792, 793-94 

(D.C. Cir. 1985)) (emphasis added). Consequently, summary disposition is 

disfavored. See, e.g., United States v. Fortner, 455 F.3d 752, 754 (7th Cir. 2006) 

(collecting cases on the limited circumstances appropriate for summary 

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disposition). 

Because of this high standard, summary affirmance is appropriate only if 

“the merits of this action have been given the fullest consideration necessary to a 

just determination.” Sills, 761 F.2d at 794 (collecting cases). At no point in these 

proceedings has any court given the Independence Institute’s claims “the fullest 

consideration.” Instead, the district court declined to convene a three-judge court 

on the pleadings and without a hearing. Here, the FEC asks for a ruling without 

briefing or oral argument.

Granting summary affirmance after such a truncated review would deny the 

“fullest consideration” of the constitutional claims at issue here. Speech in and 

around elections is governed by a complex interplay of lengthy Supreme Court

decisions. And much is at stake where, as here, the question is whether the state 

may lawfully intrude upon the privacy of association for engaging in non-electoral 

speech. 

c. Summary reversal and an order to convene a three judge court 

would give full effect to Congress’s clear intent with respect to 

constitutional challenges to BCRA. 

The Independence Institute moves this Court for summary reversal, which, 

like summary affirmance, is disfavored. Walker v. Washington, 627 F.2d 541, 545 

(D.C. Cir. 1980) (“a party who seeks summary disposition of an appeal must 

demonstrate that the merits of his claim are so clear as to justify expedited action”) 

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(citing United States v. Allen, 408 F.2d 1287, 1288 (D.C. Cir. 1969)). But granting 

the Independence Institute’s motion for summary disposition does not require a 

merits determination. The Institute simply requests an opportunity to present its 

case to a three-judge district court, as Congress envisioned. 

BCRA requires such a hearing in any action for declaratory or injunctive 

relief that “challenge[s] the constitutionality of any provision of [BCRA] or any 

amendment made by [BCRA].” BCRA § 403(a), 116 Stat. at 113-14 (codified at 

52 U.S.C. § 30110 note). Such challenges “shall be filed in the United States 

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

convened pursuant to section 2284 of title 28, United States Code.” BCRA § 

403(a)(1) (emphasis supplied). 

Under 28 U.S.C. § 2284(b)(3), a single judge cannot decide the merits of this 

case. Summary reversal would not do so either. It would simply require that the 

district court follow the path Congress explicitly laid out in 52 U.S.C. § 30110 note 

and 28 U.S.C. § 2284. 

II. Both the District Court and the FEC mistake the Independence 

Institute’s argument.

At issue is whether a mention of a candidate can trigger campaign 

regulations as an “electioneering communication” when the speech does not, in 

fact, electioneer. The FEC and district court assume that one facial challenge and 

one as-applied challenge foreclose all future challenges to BCRA § 201. But since 

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neither the holdings of McConnell nor Citizens United apply to genuine issue 

speech, this cases falls within the clear language of Buckley v. Valeo, 424 U.S. 1 

(1976). The Supreme Court has not heard an as-applied challenge similar to the 

Independence Institute’s case, as shown in the reproduction above of the 

Independence Institute’s advertisement compared to advertisements at issue in 

Citizens United. 

a. At its core, this case is about proper tailoring of disclosure 

requirements: the Constitution does not countenance compelled 

disclosure simply for speaking about issues of public policy.

The Independence Institute acknowledges the informational interest in 

providing the public with knowledge about “who is speaking about a candidate 

shortly before an election.” Citizens United, 558 U.S. at 369. But the existence of 

the informational interest is not the question before this Court. The question is 

whether, in this instance, BCRA’s electioneering communications disclosure 

regime survives exacting scrutiny’s requirement that disclosure be properly 

tailored to serve that interest. “In the First Amendment context, fit matters.” 

McCutcheon v. FEC, 572 U.S. ___, ___, 134 S. Ct. 1434, 1456 (2014). 

Buckley recognized that “the distinction between discussion of issues and 

candidates and advocacy of election or defeat of candidates may often dissolve in

practical application. Candidates, especially incumbents, are intimately tied to 

public issues involving legislative proposals and governmental actions.” Buckley v. 

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Valeo, 424 U.S. at 42. Candidates run for office, where they are vested with public 

authority. A call for a candidate—especially an incumbent—to take official action 

is materially different from speaking about the candidate’s fitness for office. 

The Buckley Court therefore sought to protect issue speech by requiring that 

campaign finance disclosure survive exacting scrutiny. This level of review is high, 

for the Supreme Court has long “recognized that [the] 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.” Id. at 64 

(collecting cases). Therefore, the government must show “‘a relevant correlation’ 

or ‘substantial relation’ between the governmental interest and the information 

required to be disclosed.” Id. (citing Pollard v. Roberts, 283 F. Supp. 248, 257 

(E.D. Ark.) (three judge court), aff'd, 393 U.S. 14 (1968) (per curiam)). 

As the Ninth Circuit recognized, the Supreme Court’s exacting scrutiny is a 

“strict test.” Chula Vista Citizens for Jobs & Fair Competition v. Norris, 755 F.3d 

671, 684 (9th Cir. Cal. 2014) (quoting Buckley, 424 U.S. at 66). Therefore, “the 

mere assertion of a connection between a vague interest and a disclosure 

requirement is insufficient.” Id. Tailoring matters. 

Buckley held that the relevant governmental interest in disclosure was to 

“increase[] the fund of information concerning those who support [] candidates.” 

Buckley, 424 U.S. at 81. Spending by outside groups may implicate the 

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informational interest, but disclosure of donors must be intended to “help[] voters 

to define more of the candidates’ constituencies.” Id. Consequently, the 

informational interest is inextricably linked to “shed[ding] the light of publicity on 

spending that is unambiguously campaign related.” Id. 

This is the crux of the Institute’s claims: in this application, BCRA regulates 

speech that is not “unambiguously campaign related.” This is not a facial 

challenge. The Institute acknowledges the interest of the government in disclosure 

of information concerning communications that support or oppose a candidate. But 

this case presents the situation where merely mentioning a candidate in an issue 

advertisement triggers the full disclosure of all significant donors to a nonprofit 

organization. The law does so even though donors may not be aware of the 

advertisement or approve of its message, and even though the advertisement may 

be a miniscule portion of the nonprofit’s overall activity. The Institute seeks proper 

tailoring of BCRA, nothing more. 

b. A single facial challenge, McConnell, and a single as-applied 

challenge, Citizens United, do not foreclose a challenge based on 

pure issue speech. 

The FEC’s reliance on McConnell in its motion for summary affirmance is 

misplaced. McConnell was a facial ruling upholding, inter alia, BCRA’s 

electioneering communication disclosure regime. It is unsurprising that McConnell

upheld BCRA’s disclosure requirements “to the entire range of ‘electioneering 

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communications.’” McConnell, 540 U.S. at 196. It would be remarkable if a facial 

ruling did not uphold the statute in a wide range of circumstances. WRTL II, 551 

U.S. at 466 (Roberts, C.J., controlling opinion) (noting the McConnell plaintiff’s

“‘heavy burden of proving’ that [BCRA] was facially overbroad and could not be 

enforced in any circumstances”) (quoting McConnell, 540 U.S. at 207) (emphasis 

in WRTL II). But the existence of a facial constitutional ruling does not foreclose 

as-applied challenges to the same statute. WRTL I, 546 U.S. at 411-12. New ads 

garner their own analysis. WRTL II, 551 U.S. at 464 (Roberts, C.J., controlling 

opinion). 

The McConnell Court facially upheld BCRA’s disclosure regime on a record 

where “the vast majority of ads” which fell into BCRA’s electioneering 

communication definition “clearly had” an electioneering purpose. McConnell, 540 

U.S. at 206. Citizens United went no further than McConnell. Indeed, all of the 

communications at issue in Citizens United were unambiguously campaign 

related—a fact glossed over by both the district court and the Commission.5

 

By contrast, the Institute’s proposed advertisement is not the equivalent of a 

5 In fact, just “[f]our days after Senator Barack Obama won the Iowa presidential 

caucuses, Plaintiff [Citizens United] announced its intent to produce and broadcast 

a ‘documentary’ film about Senator Obama, as well as television advertising for 

that film.” FEC Mem. of Law in Supp. of its Mot. for Summary Judgment, Citizens 

United v. FEC, No. 07-2240 at 5 (D.D.C. June 6, 2008) ECF 56. It is unlikely that 

Hillary: The Movie and its ads would have existed if Hillary Clinton had decided 

against running for President in 2008.

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two-hour film aimed at convincing viewers that “[Colorado] would be a dangerous 

place in a [Senator Udall] world, and that viewers should vote against [him].” 

Citizens United v. FEC, 530 F. Supp. 2d 274, 279 (D.D.C. 2010). Nor is the radio 

ad similar to promotional advertisements for Hillary—which suggested, for 

example, that the only “kind word” that could be said about Senator Clinton was 

“[s]he looks good in a pant suit,” and were unambiguously related to her 

Presidential campaign. Id. at 276, n.3. Instead, the Institute supports a specific 

piece of legislation—the Justice Safety Valve Act—and merely seeks to encourage 

both Colorado senators to support it. As the ad comparison chart on page 5 shows, 

the Institute’s ad focuses entirely on the public policy of implications of a bill 

before the Senate. The ad offers no view on Senator Udall—indeed, it ignores his 

candidacy entirely. It is consequently, on its face, markedly different from Citizens 

United’s advertisements. 

The FEC suggests that because the Hillary promotional advertisements 

“proposed a commercial transaction—buy the DVD of The Movie,” the Citizens 

United court meant to rule that genuine issue speech about legislation and 

legislators is not protected. Mot. for Summ. Affirm. at 12 (quoting Citizens United, 

530 F. Supp. 2d at 280). This argument is poorly grounded. Commercial speech is 

less protected than issue speech, and may therefore be more stringently regulated. 

Cent. Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 557, 562 n.2 

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(1980)(“[O]ur decisions have recognized the commonsense distinction between 

speech proposing a commercial transaction, which occurs in an area traditionally 

subject to government regulation, and other varieties of speech”) (internal 

quotation marks and citations omitted). 

The district court’s reasoning rests on a theory that Citizens United removed 

all protections for issue speech within the electioneering communications window. 

Mem. Op. at 7. But if Citizens United overruled Buckley’s issue speech protections 

under exacting scrutiny, it did not do so expressly. At most, the Citizens United

Court held that the specific ads at issue triggered the “public[’s]... interest in 

knowing who is speaking about a candidate shortly before an election.” Citizens 

United, 558 U.S. at 369. 

The Supreme Court’s decisions have demonstrated that speech exists on a 

spectrum. One narrow band of speech is express advocacy—speech which uses the 

so-called “magic words” set forth in Buckley’s footnote 52. Buckley, 424 U.S. at 

42, n. 52 (express advocacy constitutes phrases such as “cast your ballot for” or 

“Smith for Congress”). The Court has also recognized an analogous category of 

speech which, while falling short of express advocacy, functions in the same way. 

McConnell, 540 U.S. 93, 126-127 (2003) (“Little difference exist[s], for example, 

between an ad that urge[s] viewers to ‘vote against Jane Doe’ and one that 

condemn[s] Jane Doe’s record on a particular issue before exhorting viewers to 

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‘call Jane Doe and tell her what you think’”). This speech, like the speech 

reviewed by the Supreme Court in Citizens United, is “unambiguously campaign 

related,” and therefore may lawfully trigger donor disclosure. Buckley, 424 U.S. at 

81 (disclosure acceptable as a means of determining the financial “constituencies” 

of candidates for office). 

But the Independence Institute seeks to engage in speech that does not fall 

into the narrow band of speech regulable under Buckley, McConnell, or Citizens 

United. All parties to this case agree that the Institute’s proposed communication is 

not express advocacy or its functional equivalent. Instead, the Institute’s 

advertisement falls into a more highly protected class of speech: genuine issue 

advocacy—public policy communications that educate and persuade the public. 

See WRTL II, 551 U.S. 449, 470 (genuine issue speech “focus[es] on a legislative 

issue, take[s] a position on the issue, exhort[s] the public to adopt that position, and 

urge[s] the public to contact public officials with respect to the matter”). This form 

of speech has been protected since Buckley v. Valeo, and no intervening Supreme 

Court decision has overruled Buckley. Nevertheless, the FEC maintains that it may 

constitutionally compel the disclosure of the Institute’s donors for engaging in 

genuine issue speech, and that the Institute is not entitled to its day in court for 

challenging that disclosure. Simply put, this cannot be the law.

It is true that the Citizens United Court stated that the “functional equivalent 

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of express advocacy” test was inapplicable to electioneering communications 

disclosure. Citizens United, 558 U.S. at 369. But the Court said nothing about 

speech that is not “unambiguously campaign related.” Protections for that category

of speech date back to Buckley and remain in effect. Agostini v. Felton, 521 U.S. 

203, 237 (1997) (“We do not acknowledge, and we do not hold, that other courts 

should conclude our more recent cases have, by implication, overruled an earlier 

precedent”). Even if the FEC and district court correctly foresee the trend of the 

Supreme Court’s jurisprudence, it remains the Supreme Court’s province to clarify 

its own rulings. See, e.g., Rodriguez de Quijas v. Shearson/American Express, Inc., 

490 U.S. 477, 484 (1989) (“If a precedent of this Court has direct application in a 

case, yet appears to rest on reasons rejected in some other line of decisions, the 

Court of Appeals should follow the case which directly controls, leaving to this 

Court the prerogative of overruling its own decisions”). 

c. After Van Hollen, the burdens imposed for speaking about a 

candidate are heightened because, without any earmarking 

provision, all donors are subject to disclosure. 

The district court and FEC’s theory of BCRA is remarkably broad and openended. If the district court’s ruling is upheld, any speech that mentions a candidate 

within the sixty day window will trigger the full weight of the federal disclosure 

regime. Worse, after Van Hollen struck down the FEC’s earmarking regulation, the 

law now mandates the Institute produce more private information than if the 

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Institute’s proposed communication specifically said “vote for Senator Udall.” 

Under federal campaign finance law, an independent expenditure is “an 

expenditure by a person—(A) expressly advocating the election or defeat of a 

clearly identified candidate...” 52 U.S.C. § 30101(17). Independent expenditures 

are exempted from the definition of electioneering communications. 52 U.S.C. § 

30104(f)(3)(B)(ii) (“The term ‘electioneering communication’ does not include...a 

communication which constitutes an expenditure or an independent expenditure 

under this Act”). Therefore, if an advertisement expressly advocates for a 

candidate, it is not an electioneering communication. 

“Expressly advocating” is a term of art dating back to Buckley, which 

limited independent expenditure disclosure “to reach only funds used for 

communications that expressly advocate the election or defeat of a clearly 

identified candidate.” Buckley, 424 U.S. at 80. The Buckley Court gave examples 

of express advocacy: words “such as ‘vote for,’ ‘elect,’ ‘support,’ ‘cast your ballot 

for,’ ‘Smith for Congress,’ ‘vote against,’ ‘defeat,’ [and] ‘reject.’” Buckley, 424 

U.S. at 80 n.108 (incorporating by reference, id. at 44 n. 52). Buckley’s “magic 

words” identify when a communication contains express advocacy. 

Independent expenditures, like electioneering communications, are subject 

to reporting requirements. 52 U.S.C. § 30104(c). But only the contributions 

earmarked for the independent expenditure are reported. 52 U.S.C. § 

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30104(c)(2)(C) (requiring “identification of each person who made a contribution 

in excess of $200 to the person filing such statement which was made for the 

purpose of furthering an independent expenditure”); 11 C.F.R § 109.10(e)(vi) 

(implementing 52 U.S.C. § 30104(c)(2)(C)). 

Van Hollen vacated the Commission’s regulation treating electioneering 

communications in a manner similar to independent expenditures. See Van Hollen, 

No. 11-0766 slip op. at 3). If an ad is an electioneering communication, disclosure 

is no longer limited to donors who gave “for the purpose of furthering 

electioneering communications.” 11 C.F.R. § 104.20(c)(9). Post-Van Hollen, if an 

organization runs an electioneering communication, all donors who gave more 

than $1,000 to the organization will be publicly disclosed. 

Suppose that the Institute’s ad had supported Senator Udall’s reelection by 

saying, “Senator Udall is the just the man we need in Washington. Support Udall, 

support federal sentencing reform.” Under 52 U.S.C. § 30104(c)(2)(C), only the 

donors who specifically gave money for that advertisement would be disclosed. 

But if the Independence Institute runs the ad as proposed in this case—

without any candidate advocacy, express or implied—then all of the nonprofit’s 

donors are subject to disclosure. This outcome is peculiar and troubling. It is also 

precisely the scenario the Independence Institute articulated in its Verified 

Complaint and its briefing in the district court. 

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The Supreme Court has repeatedly held such generalized donor disclosure to 

be unconstitutional. See, e.g., NAACP v. Alabama ex. rel. Patterson, 357 U.S. 449, 

462 (1958) (“[i]t is hardly a novel perception that compelled disclosure of 

affiliation with groups engaged in advocacy may constitute as effective a restraint 

on the freedom of association”). Financial support “can reveal much about a 

person’s activities, associations, and beliefs.” Buckley, 424 U.S. at 66 (quoting 

California Bankers Assn. v. Shultz, 416 U.S. 21, 78-79 (1974) (Powell, J., 

concurring)). Therefore, compelled disclosure of financial support “cannot be 

justified by a mere showing of some legitimate governmental interest.” Id. at 64. 

Instead, the government bears the burden of showing both interest and proper 

tailoring. Id. 

It is true that if the Institute paid for its proposed communication out of a 

“segregated bank account consisting of funds provided” by contributors, all of the 

Institute’s donors would not be disclosed—merely those who gave to the separate 

segregated fund. 11 C.F.R. § 104.20(c)(7). Of course, given Van Hollen’s recent 

vintage, this issue was not considered by the district court. Nevertheless, the 

Institute objects to this point on two grounds: (1) the Institute maintains any

disclosure for genuine issue speech is unconstitutional, and (2) it wishes to exercise 

its constitutional freedom to speak from its general treasury. 

Citizens United, decided in 2010, did not anticipate Van Hollen and the 

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resulting regime. Accordingly, Citizens United did not deal with the burdens of 

establishing, raising money especially for, and maintaining an “Electioneering 

Communications Fund.” But the Supreme Court has found that imposing similar

burdens on nonprofits like the Institute is unconstitutional. In FEC v. 

Massachusetts Citizens for Life, the Court held that the formalized structures 

required for compliance with federal campaign finance law are unconstitutionally 

burdensome as applied to nonprofit organizations. 479 U.S. 238, 254-55 

(1986)(Brennan, J., plurality opinion). In that case, Justice O’Connor concurred 

with the plurality, noting “the significant burden” of the “additional organizational 

restraints imposed” upon such speakers. Id. at 266 (O’Connor, J., concurring).

Significantly, MCFL involved a nonprofit speaker that engaged in express 

advocacy. Sister circuits still follow this bedrock principle of First Amendment 

law. See, e.g., Minn. Citizens Concerned for Life, Inc. v. Swanson, 692 F.3d 864, 

877 (8th Cir. 2012) (striking down Minnesota state requirement that independent 

speakers form a separate ‘political fund’ before engaging in independent express 

advocacy). 

Summary affirmance in this case—after Van Hollen—would be 

inappropriate, as the Supreme Court has clearly never considered whether a single 

“electioneering communication” that does not “electioneer” may nonetheless serve 

as the trigger for disclosure of all substantive donors to a nonprofit educational 

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charity. Moreover, summary affirmance in this case would close the door to any 

future as-applied challenges to BCRA’s electioneering communication disclosure 

requirements. By contrast, summary reversal would simply require the merits of 

the Independence Institute’s constitutional claims to be fully considered by a threejudge district court, as Congress intended. 

d. None of the FEC’s reasons for summary reversal is sufficient. 

In its Motion, the FEC claims five reasons why the district court’s decision 

is correct. Mot. for Summ. Affirm. at 13-16. In light of the discussion above, none 

is availing, and certainly none compels summary affirmance without “full 

consideration” by a three judge court. Each FEC claim is taken in turn. 

First, the FEC, like the district court, focused on the “functional equivalent 

of express advocacy” test, and suggests that Citizens United’s statement that 

disclosure may go beyond the functional equivalent of express advocacy grants the 

Commission power to regulate genuine issue speech. See Mot. for Summ. Affirm. 

at 13. As discussed supra, this is not so, the Commission may only compel 

disclosure from speakers whose message is “unambiguously campaign related.” 

Citizens United never addressed a communication akin to the one at issue here. 

Second, the FEC misunderstood the Institute’s argument about its tax status. 

Mot. for Summ. Affirm. at 14. The Institute mentioned its tax status as one of 

many distinguishing factors between its as-applied challenge and the facts of 

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Citizens United. Section 501(c)(3) organizations are expressly prohibited from 

engaging in politics. 26 U.S.C. §501(c)(3) (banning “participat[ion] in, or 

interven[tion] in... any political campaign on behalf of (or in opposition to) any 

candidate for public office”). In contrast, § 501(c)(4) organizations like Citizens 

United were permitted to interfere, intervene, endorse, oppose, or otherwise be 

engage in debate about elections—so long as it was not their primary purpose. See

IRS Rev. Rul. 81-95 1981-1 C.B. 332 (discussing political activity by § 501(c)(4) 

organizations under the tax code). 

The FEC incorrectly contends that the “distinction [between § 501(c)(3) and 

501(c)(4) organizations] ‘has no basis’ because neither type of organization is 

obliged by federal tax law to disclose their donors.” Mot. for Summ. Affirm. at 15. 

But this misses the Institute’s point. Section 501(c)(3) organizations are barred 

from “unambiguously campaign related” activity, and therefore the government’s 

asserted interest in publicizing a § 501(c)(3)’s donor list dissolves. So while 

“Citizens United... disclos[ed] its donors for years,” and therefore held less 

interest in preserving donor anonymity, the Independence Institute has every

reason to keep its donors private. Citizens United, 558 U.S. at 370.

Third, Citizens United did not baldly hold that “express advocacy or issue 

advocacy does not determine whether BCRA’s disclosure requirement can be 

lawfully applied.” Mot. for Summ. Affirm. at 15 (quoting Mem. Op. at 12-13). The 

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district court’s assertion in the quoted section was uncited. See Mem. Op. at 13. As 

discussed, supra, Citizens United, an as-applied challenge, did not examine 

genuine issue speech and therefore does not control this case. 

Fourth, the Commission misunderstands the Institute’s point about the

“‘pejorative’ tone” of the Citizens United ads. The key factor was that those ads

contained pejorative works about a candidacy: then-Senator Hillary Clinton’s bid 

for President. Mot. for Summ. Affirm. at 16. Hillary and its ads were clearly 

campaign related, as discussed supra. By contrast, the Institute’s request that 

citizens simply urge their representatives to support a criminal justice reform was

unambiguously not campaign related.

Fifth and finally, this Court’s opinion in Buckley v. Valeo directly reviewed

a provision that sought to regulate speech that merely mentioned candidates. 519 

F.2d 821, 870 (D.C. Cir. 1975) (en banc) aff’d in part and rev’d in part, 424 U.S. 1

(“But section 437a is 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”). This Court struck 

down the provision, holding that disclosure laws cannot equate groups that discuss 

issues with groups “whose relation to the political process is direct and intimate.” 

Id. at 873. The decision was not appealed to the Supreme Court and remains good 

law binding upon the district court. Buckley, 424 U.S. at 11 n.7. Furthermore, as 

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discussed, the Citizens United Court did not confront genuine issue speech and so 

it cannot possibly have overruled this decision or the Supreme Court’s Buckley

decision. Under this Court’s own precedent, then, BCRA’s disclosure regime may 

not be applied to the Institute.

Since none of the FEC’s arguments are sufficient to justify the extraordinary 

relief of summary affirmance, its Motion should be denied. 

Conclusion

For the forgoing reasons, Appellant Independence Institute respectfully 

requests that this Court summarily reverse the district court and order that this case 

be heard by a three-judge district court pursuant to BCRA § 403 (52 U.S.C. § 

30110 note). As a necessary corollary the FEC’s Motion for Summary Affirmance 

should be denied.

Respectfully submitted this 8th day of December, 2014.

s/ Allen Dickerson

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

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

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 Appellant

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