UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

____________________________________ 

 ) 

INDEPENDENCE INSTITUTE, ) 

 ) 

 Appellant, ) 

 ) 

 v. ) No. 14-5249 

 ) 

FEDERAL ELECTION COMMISSION, ) REPLY & OPPOSITION 

 ) 

 Appellee. ) 

___________________________________ ) 

APPELLEE FEDERAL ELECTION COMMISSION’S 

REPLY IN SUPPORT OF ITS MOTION FOR 

SUMMARY AFFIRMANCE AND IN OPPOSITION TO 

APPELLANT’S CROSS-MOTION FOR SUMMARY REVERSAL 

Lisa J. Stevenson (D.C. Bar No. 457628) 

Deputy General Counsel – Law 

Kevin Deeley 

Acting Associate General Counsel 

Erin Chlopak (D.C. Bar No. 496370) 

Acting Assistant General Counsel 

Michael A. Columbo (D.C. Bar No. 476738) 

Attorney

 FEDERAL ELECTION COMMISSION 

 999 E Street, N.W. 

 Washington, D.C. 20463 

December 22, 2014 (202) 694-1650

USCA Case #14-5249 Document #1528755 Filed: 12/22/2014 Page 1 of 22
Appellant Independence Institute has responded to the Federal Election 

Commission’s (“FEC” or “Commission”) showing that summary affirmance is 

warranted by repeating the same arguments it made to the district court, including 

its irrelevant arguments about an FEC implementing regulation that is not at issue 

in this challenge to statutory provisions of the Federal Election Campaign Act 

(“FECA” or the “Act”) that the Supreme Court has twice upheld. Summary 

affirmance is appropriate where, as here, “[t]he merits of the parties’ positions are 

so clear as to warrant summary action.” Hassan v. FEC, No. 12-5335, 2013 WL 

1164506, at *1 (D.C. Cir. Mar. 11, 2013) (per curiam). Where a “sound basis” 

exists for summary disposition, parties are “particularly encouraged to file 

dispositive motions,” since the “result can be a major savings of time, effort, and 

resources for the parties, counsel, and the Court.” D.C. Circuit Handbook of 

Practice and Internal Procedures 28 (Nov. 12, 2013). The relevant facts and law 

have been abundantly briefed already through Independence Institute’s Verified 

Complaint, Application for a Three Judge Court, Motion for Preliminary 

Injunction, the Commission’s Oppositions to Independence Institute’s Application 

for a Three-Judge Court and Motion for Preliminary Injunction, and each of 

Independence Institute’s Replies to the Commission’s Oppositions. Independence 

Institute’s arguments in its Combined Motion for Summary Reversal and Response 

to Federal Election Commission’s Motion for Summary Affirmance (“Appellant’s 

USCA Case #14-5249 Document #1528755 Filed: 12/22/2014 Page 2 of 22
2

Cross-Motion and Response”) largely rehash identical authorities and arguments 

presented to the district court. 

The district court correctly held that Independence Institute’s claims were so 

insubstantial in light of previous Supreme Court decisions that a statutory threejudge court provision was inappropriate, and that the Commission was entitled to 

judgment as a matter of law. Mem. Op. and Order, Civ. No. 14-1500 (CKK) 

(D.D.C. Oct. 6, 2014) (Dist. Ct. Docket Nos. 23 and 24) (attached as Exhibits 1 

and 2 to FEC’s Motion for Summary Affirmance (“FEC Mot.”)). No further 

briefing or argument will alter that conclusion. Indeed, despite its complaints 

about the district court’s expeditious resolution of the merits of its challenge — to 

which Independence Institute consented — Independence Institute has not 

identified a single issue for which it needs to submit further briefing or argument in 

support of its claims. This Court should summarily affirm the decision below and 

deny Independence Institute’s request for summary reversal. 

I. THE DISTRICT PROPERLY DENIED INDEPENDENCE 

INSTITUTE’S APPLICATION FOR A THREE-JUDGE COURT 

As the Commission explained in its summary-affirmance motion (FEC 

Mot. at 17), the district court correctly recognized its duty to make the “‘initial 

determination of whether [Independence Institute’s claims were] required to be 

heard and determined by a three-judge court,’” and properly applied this Court’s 

rule that “‘[a] single district judge need not request that a three-judge court be 

USCA Case #14-5249 Document #1528755 Filed: 12/22/2014 Page 3 of 22
3

convened if a case raises no substantial claim or justiciable controversy.’” Mem. 

Op. at 6 (quoting Feinberg v. Federal Deposit Ins. Corp., 522 F.2d 1335, 1338 

(D.C. Cir. 1975) (construing 28 U.S.C. § 2284)); Schonberg v. FEC, 792 F. 

Supp. 2d 14, 17 (D.D.C. 2011). This Court has held, and the court below 

correctly observed, that “[c]onstitutional claims may be regarded as insubstantial 

if they are ‘obviously without merit,’ or if their ‘unsoundness so clearly results 

from the previous decisions of (the Supreme Court) as to foreclose the subject 

and leave no room for the inference that the question sought to be raised can be 

the subject of controversy.’” Feinberg, 522 F.3d at 1338-39 (citations omitted); 

Mem. Op. at 6; see also Schonberg, 792 F. Supp. 2d at 17 (applying this Court’s 

interpretation of 28 U.S.C. § 2284 in Feinberg to section 403(a) of the Bipartisan 

Campaign Reform Act (“BCRA”), Pub. L. No. 107-155, 116 Stat. 81, 113-14, 

reprinted at 52 U.S.C. § 30110 note (2 U.S.C. § 437h note)). 

Independence Institute attempts to sidestep the district court’s important 

gatekeeping role in ensuring that the designation of a three-judge court pursuant 

to section 403(d)(2) of BCRA is limited to substantial constitutional challenges. 

116 Stat. 113-14. That gatekeeping function not only reduces unnecessary 

burdens on lower court judges, but it further ensures that the Supreme Court is 

not improperly burdened with mandatory direct appeals in insubstantial 

challenges like this one, which merely seeks to relitigate the precise 

USCA Case #14-5249 Document #1528755 Filed: 12/22/2014 Page 4 of 22
4

constitutional question that the Supreme Court answered less than five years ago 

in Citizens United v. FEC, 558 U.S. 310 (2010). See infra pp. 9-15. Indeed, the 

Supreme Court has instructed that courts should employ an “overriding policy 

. . . of minimizing the mandatory docket of [the Supreme] Court in the interests 

of sound judicial administration.” Gonzalez v. Automatic Emps. Credit Union, 

419 U.S. 90, 98 (1974); see also Goldstein v. Cox, 396 U.S. 471, 478 (1970) 

(“This Court has more than once stated that its jurisdiction under the ThreeJudge Court Act is to be narrowly construed since any loose construction of the 

requirements of [the Act] would defeat the purposes of Congress . . . to keep 

within narrow confines our appellate docket.” (citation and internal quotation 

marks omitted)); accord MTM, Inc. v. Baxley, 420 U.S. 799, 804 (1975) (per 

curiam). 

Independence Institute also grossly overstates the relevant inquiry for 

determining whether its claims are insubstantial. Contrary to Independence 

Institute’s assertion, summary affirmance of the decision below does not require 

this Court to conclude that the Supreme Court’s decisions in McConnell v. FEC, 

540 U.S. 93 (2003), and Citizens United “must wholly foreclose all future asapplied challenges to [the Act’s] regulation of electioneering communications” 

(“ECs”). (Appellant’s Cross-Mot. and Response at 11 (emphasis added); see id.

at 12 (arguing erroneously that “[h]ere, this Court must decide whether 

USCA Case #14-5249 Document #1528755 Filed: 12/22/2014 Page 5 of 22
5

[McConnell and Citizens United] close the courthouse door to all speakers 

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

electioneering communications window”) (emphases added).) Nor has the 

Commission “so argue[d].” (Id. at 11; compare FEC Mot. at 9 (describing 

Independence Institute’s challenge to the EC rules “as applied to its proposed 

radio advertisement” and arguing that “the district correctly held [that] this case

is ‘foreclosed by clear United States Supreme Court precedent”) (emphasis 

added).) Summary affirmance is appropriate if this Court agrees with the court 

below that “clear United States Supreme Court precedent” wholly forecloses this 

challenge to the statutory provisions regulating disclosure of ECs. Mem. Op. 

at 2.1

 

                                                           

1

 Although Independence Institute is correct that McConnell did not foreclose 

all future as-applied challenges to the EC provisions, it makes that point not by 

citing the relevant portion of McConnell but by citing instead to a subsequent 

decision recognizing the availability of as-applied challenges to the former 

prohibition on ECs financed with corporate or union general treasury funds. 

(Appellant’s Mot. and Response at 11-12 (citing Wis. Right to Life, Inc. v. FEC, 

546 U.S. 410, 411-12 (2006)).) As the Commission explained in the court below, 

Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam), McConnell, and Citizens United 

all recognized that as-applied challenges to disclosure requirements might be 

appropriate in a single situation: when an organization’s disclosure would result in 

a “reasonable probability” of “threats, harassment, or reprisals” of its members. 

(FEC Opp’n to Prelim. Inj. Mot. at 31-32 (Dist. Ct. Docket No. 19) (citing Citizens 

United, 558 U.S. at 367 (quoting McConnell, 540 U.S. at 198; Buckley, 424 U.S. at 

74)).) That carve-out is inapplicable here. Independence Institute stipulated, and 

the district court ordered, that this case does not include any allegations or 

evidence that there is a “reasonable probability” that complying with the 

challenged disclosure provisions will subject Independence Institute’s donors to 

USCA Case #14-5249 Document #1528755 Filed: 12/22/2014 Page 6 of 22
6

Independence Institute is thus plainly wrong when it suggests that the 

district court erred by considering the substantiality of its claims rather than 

automatically certifying them to a three-judge court. (Appellant’s Cross-Mot. 

and Response at 14.) And it is equally wrong in suggesting that the district court, 

having concluded that appellant’s claims were too insubstantial to certify to a 

three-judge court, erred by proceeding to resolve the merits itself. Independence 

Institute itself describes the substantiality determination as “akin” to the 

determination of whether a complaint can “survive a motion to dismiss under 

Federal Rule of Civil Procedure 12(b)(6).” (Id. at 10-11.) Here, the district court 

did precisely what it was supposed to do. See Feinberg, 522 F.2d at 1338-39. 

Moreover, as detailed below, Independence Institute expressly consented to both 

the substance and procedure of the merits consideration that the district court 

undertook. 

II. INDEPENDENCE INSTITUTE EXPRESSLY CONSENTED TO THE 

DISTRICT COURT’S CONSIDERATION OF THE MERITS, AND 

THE COURT BELOW FULLY CONSIDERED INDEPENDENCE 

INSTITUTE’S CLAIMS 

Independence Institute’s arguments about the propriety of the district court’s 

consideration of the merits and its characterization of the district-court proceedings 

as “truncated” are utterly baseless and indeed surprising given that Independence 

                                                                                                                                                                                               

any threats, harassment, or reprisals. Mem. Op. at 1 & n.1, 4, 12; Joint Stip. and 

Order of the Court as to the Scope of Plaintiffs’ Allegations and Claims at 1 (Dist. 

Ct. Docket No. 14). 

USCA Case #14-5249 Document #1528755 Filed: 12/22/2014 Page 7 of 22
7

Institute explicitly consented to that court’s consideration of the merits of its 

claims and to the schedule and scope of the parties’ merits briefing. 

Independence Institute filed its complaint and motion for a three-judge court 

on September 2, 2014. Two days later, on Thursday, September 4, it filed a 

motion for a preliminary injunction. The following Monday, September 8, the 

district court held an on-the-record telephonic conference with the parties and, with 

the parties’ consent, established a briefing schedule for Independence Institute’s 

motions for a three-judge court and for a preliminary injunction. (Minute Order, 

Sept. 8, 2014.) As the court’s September 8 Minute Order reflects, the court further 

instructed the parties to meet and confer regarding whether to consolidate briefing 

on Independence Institute’s preliminary-injunction motion with briefing on the 

merits, and to inform the court jointly of the parties’ decision by the following day, 

including by jointly proposing any alterations to the just-established briefing 

schedule. (Id.) 

On September 9, as reflected in the district court’s Minute Order issued that 

day, the parties jointly advised the court of their agreement (a) to consolidate 

briefing on Independence Institute’s preliminary-injunction motion with briefing 

on the merits, and for the district court to consider Independence Institute’s motion 

for a preliminary injunction as a summary-judgment motion; (b) to maintain the 

briefing schedule the court had set for Independence Institute’s preliminaryUSCA Case #14-5249 Document #1528755 Filed: 12/22/2014 Page 8 of 22
8

injunction motion; (c) that Independence Institute would not file any additional 

substantive briefing; and (d) that the parties would file a stipulation as to certain 

matters no later than September 10. (Minute Order, Sept. 9, 2014.) 

On September 10, the parties filed a joint stipulation regarding the scope of 

Independence Institute’s allegations and claims, which the district court entered as 

an order that same day. (Joint Stip. and Order of the Court as to the Scope of 

Plaintiffs’ Allegations and Claims (Dist. Ct. Docket No. 14) (“Joint Stipulation and 

Order”).) The Joint Stipulation and Order specified the scope of Independence 

Institute’s claims — that the case presented only “an as-applied challenge to 52 

U.S.C. § 30104(f)(l)-(2) based upon the content of the Independence Institute’s 

intended communication, and not the possibility that its donors will be subject to 

threats, harassment, or reprisals.” (Id. at 1.) It also reiterated “Independence 

Institute’s agreement not to supplement its Motion for Preliminary Injunction with 

supplemental substantive briefing or evidence,” and the parties’ agreement “for the 

Court to consider [Independence Institute’s] Motion for Preliminary Injunction as a 

Motion for Summary Judgment and to follow the briefing schedule set forth in the 

[district court’s] September 9, 2014 Minute Order.” (Id. at 1-2.) 

Independence Institute never objected to the district court’s consideration of 

the merits of its claims or to the scope or schedule of such merits consideration, 

nor did it seek an opportunity to provide additional briefing or evidence, nor did it 

USCA Case #14-5249 Document #1528755 Filed: 12/22/2014 Page 9 of 22
9

ever request a hearing on either of its then-pending motions. As explained above, 

it was given clear opportunities to do any or all of these things. Independence 

Institute’s belated complaints (Appellant’s Cross-Mot. and Response at 13) that the 

district-court proceedings were “truncated” ring hollow. It fails to identify any 

aspect of its claims that the district court failed to give the “‘fullest consideration.’” 

(Id.) Independence Institute’s baseless allegations of procedural deficiencies are 

contrary to the record below and provide no basis for plenary briefing here. 

III. THE DISTRICT COURT CORRECTLY CONCLUDED THAT 

INDEPENDENCE INSTITUTE’S CLAIMS ARE FORECLOSED BY 

SUPREME COURT PRECEDENT 

The Commission previously demonstrated that the decision below should be 

summarily affirmed because the Supreme Court’s “unambiguous language” in 

Citizens United clearly and directly forecloses Independence Institute’s similar 

constitutional challenge here. (FEC Mot. at 9-17.) Independence Institute still has 

failed to identify any flaw in the district court’s analysis or holding, or to explain 

why Citizens United does not foreclose this challenge. Instead, it “acknowledges 

the [government’s] informational interest in providing the public with knowledge 

about ‘who is speaking about a candidate shortly before an election,’” (Appellant’s 

Cross-Mot. and Response at 15 (quoting Citizens United, 558 U.S. at 369) 

(emphasis added)), and that its proposed advertisement spoke about a former 

candidate shortly before an election. (Id. at 1-2 (explaining that Independence 

USCA Case #14-5249 Document #1528755 Filed: 12/22/2014 Page 10 of 22
10

Institute’s proposed ad, which it sought to air in the weeks leading up to the 

November 2014 general election, “exhorted the listener to contact [a candidate 

then seeking re-election] and tell [the candidate] to support” a proposed piece of 

legislation).)2

 It further acknowledges that the relevant legal question is “whether, 

in this instance, [the Act’s] electioneering communications disclosure regime 

survives exacting scrutiny[].” (Id. at 15.) And it concedes that “the Citizens 

United Court stated that the ‘functional equivalent of express advocacy’ test was 

inapplicable to electioneering communications disclosure.” (Id. at 22 (quoting 

Citizens United, 558 U.S. at 369).) 

These three points are interrelated and they collectively foreclose 

Independence Institute’s challenge. Citizens United makes that conclusion 

inescapable. In rejecting Citizens United’s argument that applying the EC 

                                                           

2

 As the Commission noted in its summary-affirmance motion, the FEC does 

not contend that Independence Institute’s appeal has become moot in light of the 

exception for disputes that are capable of repetition yet evading review. (See FEC 

Mot. at 10 n.2; see also Appellant’s Cross-Mot. and Response at 5 n.1.) 

Nevertheless, Independence Institute’s assertions in its Motion and Response that 

the Act “mandates disclosure of the Independence Institute’s donors if it runs the 

proposed advertisement” (Appellant’s Cross-Mot. and Response at 8 (emphasis 

added); see id. at 24 (same)) is no longer correct, because, as the Commission 

explained in its summary-affirmance motion, after the November 2014 elections, 

the particular proposed advertisement Independence Institute has described in this 

case no longer meets the statutory definition of an EC. (FEC Mot. at 10 n.2 (citing 

52 U.S.C. § 30104(f)(3)(A) (2 U.S.C. § 434(f)(3)(A)).) 

USCA Case #14-5249 Document #1528755 Filed: 12/22/2014 Page 11 of 22
11

disclosure requirements to its advertisements would not serve any informational 

interest, because they “only attempt[ed] to persuade viewers to see [a] film,” the 

Court explained that “[e]ven if the ads only pertain to a commercial transaction, 

the public has an interest in knowing who is speaking about a candidate shortly 

before an election” and “the informational interest alone is sufficient to justify 

application of [the EC disclosure requirements] to these ads.” 558 U.S. at 369 

(emphases added). In other words, the Court held that even where, as here, a 

communication lacks any campaign advocacy but nevertheless mentions a 

candidate shortly before an election, the EC disclosure requirements survive 

exacting scrutiny based on “the informational interest alone.” Id. As the district 

court held, “the Supreme Court’s clear instructions in Citizens United” thus 

directly answer the question in this case. Mem. Op. at 6. 

Independence Institute nevertheless continues to press its “futile” attempt to 

distinguish this case from Citizens United. Id. In its district court briefs, 

Independence Institute insisted that the advertisements at issue in Citizens United

were the functional equivalent of express advocacy, or at least “could fairly be 

characterized” as such. (Pl.’s Reply in Support of its Mot. for Prelim. Inj. at 9 

(Dist. Ct. Docket No. 22); see id. at 11 (arguing that “[i]f the only nice thing that 

could be said about [Hillary Clinton] is that she wears a suit well, it follows that 

[she] is of poor moral character and unqualified for office”).) As the district court 

USCA Case #14-5249 Document #1528755 Filed: 12/22/2014 Page 12 of 22
12

explained, however, Independence Institute “d[id] not even attempt to indicate 

where in Citizens United the Supreme Court held that the advertisements were the 

functional equivalent of express advocacy” and “the Supreme Court’s own 

language contradicts th[at] conclusion.” Mem. Op. at 9-10 & n.10; see id. at 13 

n.13 (noting the district court’s “doubt[] that the advertisements in Citizens United

could satisfy the strict standard for being considered the functional equivalent of 

express advocacy,” which includes only communications that are “‘susceptible of 

no reasonable interpretation other than as an appeal to vote for or against a specific 

candidate’”) (quoting Citizens United, 558 U.S. at 324-25; FEC v. Wis. Right to 

Life, Inc., 551 U.S. 449, 469-70 (2007)). 

Although Independence Institute appears to have abandoned its specific 

argument that the ads at issue in Citizens United were the “functional equivalent of 

express advocacy,” its latest contention — that “all of the communications at issue 

in Citizens United were unambiguously campaign related” — is just a 

reformulation of that same argument. (Appellant’s Cross-Mot. and Response at 

18; see id. at 20-21 (stating that speech that “functions in the same way” as express 

advocacy “is ‘unambiguously campaign related’”).) Independence Institute’s 

“unambiguously campaign related” argument is thus equally unfounded and 

contradicted by Citizens United for all of the same reasons. Independence Institute 

purports to distinguish this case from Citizens United by emphasizing that its 

USCA Case #14-5249 Document #1528755 Filed: 12/22/2014 Page 13 of 22
13

proposed ad does not “speak[] about the candidate’s fitness for office” (id. at 16), 

but it fails to explain its assertion that stating “that the only ‘kind word’ that could 

be said about Senator Clinton was ‘[s]he looks good in a pant suit’” is 

“unambiguously related to her Presidential campaign.” (Id. at 19.) And it fails to 

identify any other references to Hillary Clinton that it contends are comments on 

her candidacy or fitness for office. 

The district court correctly found that “the Supreme Court did not determine 

that the Hillary advertisements were the equivalent of express advocacy,” and its 

holding that the Supreme Court’s “refusal to import the express advocacy 

limitation to the disclosure context was . . . a holding that ultimately encompasses 

the facts in this case” should be summarily affirmed.3

 

The decision below similarly undermines Independence Institute’s continued 

attempt to distinguish Citizens United as a case that concerns only “commercial 

                                                           

3

 For the same reasons, Independence Institute’s latest attempt to distinguish 

itself based on its tax status — because “[s]ection 501(c)(3) organizations are 

barred from ‘unambiguously campaign related’ activity” (Appellant’s Cross-Mot. 

and Response at 28) — is irrelevant and unavailing. And Independence Institute’s 

reiteration (id.) of the fact that Citizens United had disclosed its donors ignores the 

context of the Supreme Court’s statement on that point. As the district court 

explained, “the purpose of the Supreme Court’s statement was only to note that 

Citizens United had ‘identified no instance of harassment or retaliation’ in its years 

of disclosing donors, thus defeating the argument that it could not be mandated to 

disclose because of ‘a reasonable probability that the group’s members would face 

threats, harassment, or reprisals if their names were disclosed.’” Mem. Op. at 11-

12 (quoting Citizens United, 558 U.S. at 370). Here, however, “such a probability 

is not an issue . . . because the parties have stipulated to that effect.” Id. at 12. 

USCA Case #14-5249 Document #1528755 Filed: 12/22/2014 Page 14 of 22
14

speech,” i.e., speech that “is less protected than issue speech, and [which] may 

therefore be more stringently regulated.” (Appellant’s Cross-Mot. and Response at 

19.) As the district court explained, the Supreme Court’s reference to the 

commercial nature of the advertisements at issue in Citizens United “cannot be 

excised from its context.” Mem. Op. at 13. The Supreme Court was explaining 

that “even though [Citizens United’s] advertisement encourage[d] someone to 

watch the movie rather than vote for a candidate, the public interest still supports 

disclosure of ‘who is speaking about a candidate.’” Id. Independence Institute still 

fails to explain how this portion of Citizens United in any way “impl[ies] that the 

Supreme Court determined that this speech deserved only the lesser First 

Amendment protections of commercial speech, ‘that is, expression related solely to 

the economic interests of the speaker and its audience.’” Id. at 13-14 (quoting 

Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of New York, 447 U.S. 

557, 561 (1980)). 

And finally, the decision below properly relied on the Supreme Court’s 

decisions analyzing the constitutionality of the precise statutory provisions at issue 

in this case rather than this Court’s nearly forty-year-old decision concerning an 

invalidated provision that “bears no resemblance to [the EC] disclosure 

requirements in [the Act] and sheds no light on th[is] Court’s consideration of 

them.” Mem. Op. at 20 n.17. Regardless of whether this Court’s analysis in 

USCA Case #14-5249 Document #1528755 Filed: 12/22/2014 Page 15 of 22
15

Buckley v. Valeo, 519 F.2d 821 (D.C. Cir. 1975) (en banc), “remains good law” 

(Appellant’s Cross-Mot. and Response at 29), Independence Institute fails to 

explain how that decision “suggest[s] a different outcome from Citizens United.” 

Mem. Op. at 16. It does not. 

Independence Institute’s simple rehashing of the same arguments that the 

district court fully considered and rejected fails to refute the Commission’s 

demonstration that summary affirmance is appropriate here. 

IV. THE DISTRICT COURT’S DECISION IN VAN HOLLEN v. FEC 

DOES NOT SALVAGE INDEPENDENCE INSTITUTE’S APPEAL 

In a last-ditch effort to reinvigorate its appeal, Independence Institute places 

great emphasis on a recent decision of a district court in this Circuit invalidating 11 

C.F.R. § 104.20(c)(9), an FEC regulation establishing disclosure requirements for 

ECs by most corporations and unions. See Van Hollen v. FEC, No. 11-0766-ABJ, 

___ F. Supp. 3d ___, 2014 WL 6657240 (D.D.C. Nov. 25, 2014); Appellant’s 

Cross-Mot. and Response at 22-27. Independence Institute’s reliance on the 

decision in Van Hollen is completely misplaced. 

First, in upholding the constitutionality of the statutory EC disclosure 

requirements, neither the court below nor the Supreme Court in Citizens United

relied upon — or even mentioned in passing — the regulation struck by the Van 

Hollen court. Therefore, whether the Supreme Court or the district court 

“anticipat[ed]” the Van Hollen decision (Appellant’s Cross-Mot. and Response at 

USCA Case #14-5249 Document #1528755 Filed: 12/22/2014 Page 16 of 22
16

25-26) does not matter for the simple reason that the stricken regulation was not a 

basis for rejecting the statutory constitutional challenges Independence Institute 

reprises in this case. Moreover, part of Citizens United’s holding rested on the fact 

that Congress sought through the EC provisions to address “a system without 

adequate disclosure” and create one with “effective disclosure” that is especially 

“informative” given today’s technology. 558 U.S. at 370. That part of the opinion 

belies Independence Institute’s assertion that the Supreme Court was sub silentio

relying on particular limiting constructions of the statute. 

Second, and relatedly, the Van Hollen court did not invalidate the FEC 

disclosure regulation on the basis that it unconstitutionally infringes upon First 

Amendment rights, as Independence Institute argues in this case. On the contrary, 

the Van Hollen court expressly agreed with the court below that “[i]n Citizens 

United, the [Supreme] Court clearly found that the disclosure requirements in [the 

Act] — even those that apply to ads that are not express advocacy or its functional 

equivalent — do not impinge upon constitutional rights.” Van Hollen, 2014 WL 

6657240, at *24 (relying not only on Citizens United but also on the district court 

opinion Independence Institute is appealing here). Based upon the evident 

constitutionality of the disclosure provisions challenged here, the court in Van 

Hollen invalidated the regulation as arbitrary and capricious under the 

Administrative Procedure Act because, inter alia, the court found that it 

USCA Case #14-5249 Document #1528755 Filed: 12/22/2014 Page 17 of 22
17

“contravene[d] the language and purpose of the statute” by “reduc[ing] disclosure 

and transparency.” Id. at *21-23 (emphasis added). Far from lending support to 

Independence Institute’s constitutional challenge, Van Hollen rebuts it by echoing 

the conclusions of the district court and eight justices of the Supreme Court that the 

statutory disclosure requirements challenged here are constitutional. 

Third, as Independence Institute itself acknowledges, “[i]t is true that” that 

the statute provides a means by which Independence Institute can finance ECs 

without having to disclose all of its donors by “pa[ying] for its proposed 

communication[s] out of a ‘segregated bank account consisting of funds provided’ 

by contributors.” Appellant’s Cross-Mot. and Response at 25; 52 U.S.C. 

§ 30104(f)(2)(E) (2 U.S.C. § 434(f)(2)(E)); 11 C.F.R. § 104.20(c)(7)(ii). 

Independence Institute attempts to spin this voluntary statutory alternative as a 

“burden[] of establishing, raising money especially for, and maintaining an 

‘Electioneering Communications Fund.’” (Appellant’s Cross-Mot. and Response 

at 26.) But establishing and raising money through a segregated bank account is an 

option, not an obligation, and, in any event, Independence Institute has not 

purported to challenge any aspect of that alternative means of financing its ECs. 

Independence Institute’s reliance on cases involving challenges to provisions that 

required certain organizations to register as political-committees, or to create a 

political committee, or otherwise be subject to speech bans (id.) is therefore 

USCA Case #14-5249 Document #1528755 Filed: 12/22/2014 Page 18 of 22
18

misplaced. See supra n.1 (distinguishing disclosure requirements from financing 

prohibitions); FEC Mot. at 13-14 (distinguishing disclosure requirements from 

financing limitations). Those cases are of no help in avoiding Citizens United, 

binding Supreme Court precedent that is squarely on all fours with this case. 558 

U.S. at 368-69. 

Fourth, and as explained above, Independence Institute’s claim that the 

“Supreme Court has repeatedly held . . . generalized donor disclosure to be 

unconstitutional” (Appellant’s Cross-Mot. and Response at 25) ignores that it has 

stipulated away the sole basis the Supreme Court has recognized for exempting an 

organization from the Act’s disclosure obligations. See supra n.1; Mem. Op. at 1 

& n.1, 4, 12; Joint Stipulation and Order at 1.

Fifth and finally, the fact that Congress chose to impose different disclosure 

requirements for independent expenditures does not demonstrate that the statutory 

disclosure requirements for ECs are unconstitutional as applied to Independence 

Institute or in any other circumstance. The EC provisions were part of an effort by 

Congress to address gaps in the preexisting disclosure regime, including the ability 

of the public to learn, as candidates and officeholders could, which “corporations 

or individuals make donations to interest groups that run ‘issue ads.’” McConnell,

540 U.S. at 128-29 (other internal quotation marks and citations omitted). It is thus 

unsurprising that the EC provisions are in some respects more comprehensive than 

USCA Case #14-5249 Document #1528755 Filed: 12/22/2014 Page 19 of 22
19

the disclosure requirements for independent expenditures. Moreover, such 

differences existed when the Supreme Court upheld the statutory EC requirements 

both on their face and as applied to ads that, like Independence Institute’s proposed 

ad, lacked campaign advocacy. And, as explained above, the Supreme Court in 

Citizens United and the district court in this case both upheld the statutory 

disclosure requirements for ECs without regard to the existence of the 

implementing regulation struck by the Van Hollen court. Moreover, as noted 

above, see supra n.2, Independence Institute is wrong when it asserts that “if [it] 

runs the ad as proposed in this case — without any candidate advocacy, express or 

implied — then all of [its] donors are subject to disclosure.” (Appellant’s CrossMot. and Response at 24.) That supposed outcome not only is neither “troubling” 

or “peculiar” (id.); given the Act’s carefully tailored temporal limits, it is no longer 

true. 

 

USCA Case #14-5249 Document #1528755 Filed: 12/22/2014 Page 20 of 22
20

CONCLUSION 

The district correctly identified Independence Institute’s claims as 

insubstantial and thus properly resolved the merits of this case in favor of the 

Commission. Independence Institute’s Motion and Response confirm that no 

further briefing or argument will alter that conclusion. This Court should 

summarily affirm the decision below. 

Respectfully submitted, 

Lisa J. Stevenson (D.C. Bar No. 457628) 

Deputy General Counsel – Law 

Kevin Deeley 

Acting Associate General Counsel 

/s/ Erin Chlopak

Erin Chlopak (D.C. Bar No. 496370) 

Acting Assistant General Counsel 

Michael A. Columbo (D.C. Bar No. 476738) 

Attorney

 FOR THE APPELLEE 

 FEDERAL ELECTION COMMISSION 

 999 E Street, N.W. 

 Washington, D.C. 20463 

December 22, 2014 (202) 694-1650

USCA Case #14-5249 Document #1528755 Filed: 12/22/2014 Page 21 of 22
UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

____________________________________ 

 ) 

INDEPENDENCE INSTITUTE, ) 

 ) 

 Appellant, ) 

 ) 

 v. ) No. 14-5249 

 ) 

FEDERAL ELECTION COMMISSION, ) CERTIFICATE OF SERVICE 

 ) 

 Appellee. ) 

___________________________________ ) 

CERTIFICATE OF SERVICE 

I hereby certify that on December 22, 2014, I electronically filed the FEC’s 

Reply in Support of its Motion for Summary Affirmance and in Opposition to 

Appellant’s Motion for Summary Reversal 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 

will cause four paper copies to be hand-delivered to the Court pursuant to Circuit 

Rule 27(b). Service was made on the following through CM/ECF: 

Allen Dickerson, adickerson@campaignfreedom.org 

Center for Competitive Politics 

124 S. West Street, Suite 201 

Alexandria, VA 22314 

/s/ Erin Chlopak

Erin Chlopak (D.C. Bar No. 496370) 

Acting Assistant General Counsel 

FEDERAL ELECTION COMMISSION 

999 E Street NW 

Washington, DC 20463 

USCA Case #14-5249 Document #1528755 Filed: 12/22/2014 Page 22 of 22