ORAL ARGUMENT NOT YET SCHEDULED

No. 14-5249

IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

INDEPENDENCE INSTITUTE,

Plaintiff-Appellant, 

v.

FEDERAL ELECTION COMMISSION, 

Defendant-Appellee. 

On appeal from the United States District Court 

for the District of Columbia, No. 1:14-cv-1500 (CKK)

Plaintiff-Appellant’s Reply Brief

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 Plaintiff-Appellant

May 22, 2015

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Table of Contents

Table of Authorities.................................................................................................. ii

Glossary of Abbreviations ..................................................................................... viii

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

Statutes and Regulations............................................................................................ 1 

Summary of the Argument......................................................................................... 1 

Argument.................................................................................................................... 3 

I. The FEC’s legal theory rests entirely on the as-applied challenge 

in Citizens United. Since that decision involved significantly 

different facts, the FEC’s argument fails.................................................... 3 

a. The Citizens United Court examined the ads at issue as 

commercial advertisements. .................................................................. 4 

b. Tax status matters because it highlights the organizational 

differences between Citizens United and the Institute.......................... 5 

II. The FEC cites inapplicable cases to bolster its claims that the 

Institute’s challenge is foreclosed. ............................................................. 9 

a. Cases concerning state ballot elections are not applicable to 

speech on topics not before the electorate............................................. 9 

b. Direct lobbying cases are similarly inapposite. ..................................10

c. The FEC’s attempt to show that other circuits have upheld 

broad donor disclosure for issue advocacy is unpersuasive................11

d. The FEC fails to distinguish relevant case law. ..................................14

III. The Van Hollen decision changed the legal landscape for 

electioneering communications disclosure...............................................15

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IV. Disclosure imposes a First Amendment burden regardless of 

whether a group or its donors are faced with specific threats, 

harassments, or reprisals...........................................................................22

V. The FEC misunderstands the mootness doctrine’s “capable of 

repetition, yet evading review” exception................................................24

VI. The bar for a three-judge district court is low, and has been met here. ...27

Conclusion ...............................................................................................................29

Certificate of Compliance ........................................................................................30

Certificate of Service ...............................................................................................31

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Table of Authorities1

Cases

ACLU of Nev. v. Heller, 

378 F.3d 979 (9th Cir. 2004)................................................................... 11-12

Anderson v. Spear, 

356 F.3d 651 (6th Cir. 2004).........................................................................12

Buckley v. Am. Constitutional Law Found., 

525 U.S. 182 (1999)...................................................................................9, 10

* Buckley v. Valeo, 

424 U.S. 1 (1976)...................................................................10, 11, 15, 23, 29

* Buckley v. Valeo, 

519 F.2d 821 (D.C. Cir. 1975).............................................................2, 14, 15

Cao v. FEC, 

688 F. Supp. 2d 498 (E.D. La. 2010) ............................................................28

Citizens United v. FEC, 

558 U.S. 310 (2010)...............................................................1, 4, 5, 16, 18, 26

Citizens United v. FEC, 

530 F. Supp. 2d 274 (D.D.C. 2010)...............................................................17

Center for Competitive Politics v. Harris, 

___ F.3d ___, No. 14-15978, 2015 U.S. App. LEXIS 7239 

(9th. Cir. May 1, 2015).................................................................................... 7 

Center for Individual Freedom v. Madigan, 

697 F.3d 464 (7th Cir. 2012) ...............................................................7, 13, 15

Davis v. FEC, 

554 U.S. 7246 (2008).....................................................................................26

 

1 Authorities upon which the Independence Institute chiefly relies are marked with 

asterisks.

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Doe v. Reed, 

561 U.S. 186 (2010).......................................................................................10

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

479 U.S. 238 (1986).................................................................................16, 23

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

551 U.S. 449 (2007)...........................................................................17, 24, 25

Feinberg v. Federal Deposit Insurance Corp., 

522 F.2d 1335 (D.C. Cir. 1975)........................................................... 3, 27-28

First Nat'l Bank of Boston v. Bellotti, 

435 U.S. 765 (1978).......................................................................................10

Florida League of Professional Lobbyists, Inc. v. Meggs, 

87 F.3d 457 (11th Cir. 1996).........................................................................11

Free Speech v. FEC, 

720 F.3d 788 (10th Cir. 2013).......................................................................13

Human Life of Washington, Inc. v. Brumsickle, 

624 F.3d 990 (9th Cir. 2010) .........................................................................13

In re Grand Jury Proceedings, 

633 F.2d 754 (9th Cir. 1980)........................................................................... 7 

Kucinich v. Tex. Democratic Party, 

563 F.3d 161 (5th Cir. 2009).........................................................................26

Libertarian Nat’l Comm., Inc. v. FEC, 

930 F. Supp. 2d 154 (2013)...........................................................................28

McConnell v. FEC, 

540 U.S. 93 (2003).....................................................................................3, 20

Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 

463 U.S. 29 (1983).........................................................................................19

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Nat’l Ass'n of Mfrs. v. Taylor, 

582 F.3d 1 (D.C. Cir. 2009)...........................................................................11

Nat’l Org. for Marriage v. McKee, 

649 F.3d 34 (1st Cir. 2011)............................................................................13

NCAA v. Bd. of Regents of the Univ. of Okla., 

468 U.S. 85 (1984)........................................................................................... 6 

Real Truth About Abortion v. FEC, 

681 F.3d 544 (4th Cir. 2012)...................................................................12, 13

Regan v. Taxation with Representation, 

461 U.S. 540 (1983)......................................................................................... 6 

Republican Nat’l Comm. v. FEC (In re Anh Cao), 

619 F.3d 410 (5th Cir. 2010).........................................................................28

Sampson v. Buescher, 

625 F.3d 1247 (10th Cir. 2010)....................................................................... 9 

Shays v. FEC, 

337 F. Supp. 2d 28 (D.D.C. 2004)................................................................... 8 

Storer v. Brown, 

415 U.S. 724 (1974).......................................................................................26

Talley v. California, 

362 U.S. 60 (1960).........................................................................................23

United States v. Harriss, 

347 U.S. 612, 625 (1954) ........................................................................10, 11

* Van Hollen v. FEC, 

No. 11-0766, 2014 U.S. Dist. LEXIS 164833 

(D.D.C. Nov. 25, 2014) ........................................................... 1, 15, 16, 18-19

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

751 F.3d 804 (2014) ......................................................................................14

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

546 U.S. 410 (2006).............................................................................4, 15, 28

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

466 F. Supp. 2d 195 (D.D.C. 2006)...............................................................24

Zimmerman v. Cambridge Credit Counseling Corp., 

409 F.3d 473 (1st Cir. 2005)........................................................................ 6-7

Constitution

U.S. CONST. art. II, § 2.............................................................................................12

Statutes

26 U.S.C. § 6104(d)(3)(A)......................................................................................... 6 

* 52 U.S.C.§ 30110 note ..................................................................................1, 3, 29

52 U.S.C. § 30112...................................................................................................... 7 

Bipartisan Campaign Reform Act of 2002, 

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

Federal Election Campaign Act of 1971, 

Pub. L. 92-225, 86 Stat. 3 (1972) ................................................................ viii

Federal Election Campaign Act of 1974, 

Pub. L. 93-443, 88 Stat. 1263 (1974) .......................................................... viii

10 ILL. COMP. STAT. § 5/9-1:14(b)(4).................................................................... 7-8 

ME. REV. STAT. tit. 21-a, § 1019-B ..........................................................................13

Rules

11 C.F.R. § 100.29(c)(6) ............................................................................................ 8 

11 C.F.R. § 104.20(c)(9)........................................................................17, 18, 20, 21

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Other Authorities

ASSOCIATED PRESS, “Obama officially announces run for the White 

House” CHICAGO BUSINESS NEWS Feb. 7, 2007...................................... 12-13

Brief for Appellee, Citizens United v. FEC, 

No. 08-205 (U.S. Feb. 17, 2009)...................................................................18

FEC Opp. to Pl. App. for a Three-Judge Court 

(Dist. Ct. Dkt. No. 16) ...................................................................................21

FEC Mem. of Law in Opp. to Pl.’s Mot. for Prelim. Injunction 

(Dist. Ct. Dkt. No. 19) ...................................................................................21

Order on Motion for a Three-Judge Court, 

McCutcheon v. FEC, No. 12-1034 (D.D.C. June 25, 2012) 

(Dkt. No. 10)..................................................................................................28

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Glossary of Abbreviations

BCRA – Bipartisan Campaign Reform Act of 2002, Pub. L. 107-155, 116 Stat. 81 

(2002)

FEC or Commission – Federal Election Commission

FECA – Federal Election Campaign Act of 1971, Pub. L. 92-225, 86 Stat. 3 (1972) 

and the Federal Election Campaign Act of 1974, Pub. L. 93-443, 88 Stat. 

1263 (1974).

J.A. – Joint Appendix

WRTL – Wisconsin Right to Life, Inc., a litigant in two campaign finance cases 

before the Supreme Court and several other actions in lower courts. 

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Introduction

The FEC and the Independence Institute 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, did the substantial change in the scope of publicized 

donor disclosure imposed by Van Hollen v. FEC, No. 11-0766, 2014 U.S. Dist. 

LEXIS 164833 (D.D.C. Nov. 25, 2014), affect the Institute’s right to have its case 

heard by a three-judge district court?

Statutes and Regulations

The relevant portions of the Bipartisan Campaign Reform Act of 2002

(codified at 52 § U.S.C. 30104(f) and 52 U.S.C. § 30110 note), 28 U.S.C. § 2284, 

and 11 C.F.R. § 104.20 are reproduced in the Addendum to the Independence 

Institute’s Opening Brief. 

Summary of the Argument

The Federal Election Commission believes that a small portion of a single 

case forecloses any challenge based upon the content of a particular electioneering 

communication. But Citizens United v. FEC, 558 U.S. 310 (2010), was an asapplied challenge involving facts distinguishable from the Institute’s. In Citizens 

United, the Supreme Court examined a politically active § 501(c)(4) organization 

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which sought to run commercial advertisements for a film opposing the candidacy 

of Hillary Clinton for President. Here, a § 501(c)(3) educational organization is 

being painted with the same brush for seeking to air an advertisement that patently 

has nothing to do with an election.

To bolster its argument, the FEC relies on cases highly distinguishable from 

the case at bar. It conflates speech about public policy issues with speech about 

elections. It fails to note the difference between professional lobbyists on K Street 

and grassroots support on Main Street. And where the Commission cites campaign 

finance cases, they are simply inapposite.

At the same time, the FEC discounts relevant case law. Most notably, Van 

Hollen v. FEC, which radically changed the disclosure regime for organizations 

running ads that qualify as electioneering communications. In similar fashion, the 

FEC fails to grapple with existing law in this Circuit, including this Court’s en 

banc decision in Buckley v. Valeo, 519 F.2d 821 (D.C. Cir. 1975). 

Finally, after explicitly stating in this very case that the Institute’s case is 

“capable of repetition yet evading review,” the Commission misapplies that

exception to the mootness doctrine. This exception has been upheld repeatedly in 

election law cases generally and electioneering communications challenges 

specifically. The reason is obvious: an electioneering communications window of 

only 60 days is not enough time for the federal judiciary to provide a full hearing 

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of constitutional claims. The FEC has repeatedly made this argument, including 

more than once before the Supreme Court, and repeatedly lost.

The threshold for convening a three-judge court is low. Given the thin case 

law upon which the Commission relies, and the substantial—and, as a 

constitutional matter, never reviewed—change in the law wrought by the recent 

Van Hollen decision, this Court should reverse the District Court and order the 

important questions raised by the Institute be heard by a three-judge district court, 

as Congress intended. 52 U.S.C. § 30110 note. 

Argument

I. The FEC’s legal theory rests entirely on the as-applied challenge in 

Citizens United. Since that decision involved significantly different 

facts, the FEC’s argument fails. 

Unless the Independence Institute’s constitutional claims have 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 (mandating three-judge

court). As noted by all parties, the District Court correctly articulated this standard. 

Open. Br. at 15; Ans. Br. at 53 (applying Feinberg v. Federal Deposit Insurance 

Corp., 522 F.2d 1335, 1338-39 (D.C. Cir. 1975). 

The FEC argues that the omnibus facial challenge in McConnell, 540 U.S. 

93 (2003), and an as-applied challenge in Citizens United together foreclose all 

future challenges based upon the content of an electioneering communications. 

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Ans. Br. at 21.2

 In its Opening Brief, the Institute argues that its facts differ 

substantially from those of Citizens United. See, e.g. Op. Br. at 12. The FEC 

considers these differences irrelevant. 

At the outset, it is settled law that facial challenges do not foreclose future, 

as applied challenges—particularly in the context of electioneering 

communications. Wis. Right to Life, Inc. v. FEC, 546 U.S. 410, 411-12 (2006) 

(“WRTL I”) (“[i]n upholding [BCRA] § 203 against a facial challenge, we did not 

purport to resolve future as-applied challenges”). Indeed, later challenges can 

highlight constitutional infirmities not present “on the basis of [a facial 

challenge’s] factually barebones recor[d]” Citizens United, 558 U.S. at 332

(internal quotation marks and citation omitted, second bracket in original). 

This leaves the as-applied challenge in Citizens United. The question is 

whether the facts of that case are sufficiently similar to those at bar to foreclose asapplied review.

a. The Citizens United Court examined the ads at issue as

commercial advertisements. 

Contrary to the Commission’s assertions, the Citizens United Court 

examined ads that were commercial speech, namely, communications promoting

 

2 Amici Campaign Legal Center, et al., likewise focus only on McConnell’s facial 

challenge and Citizens United’s as-applied challenge, claiming that those decisions 

mandate disclosure for “the entire range of electioneering communications.” Br. of 

Amici Curiae Campaign Legal Center et. al. at 4.

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the underlying anti-Clinton film. Id. at 320. These ads were “pejorative” about a 

candidate for president.3 See Op. Br. at 41 (reproducing the Citizens United ads). 

As explained in the Opening Brief, commercial speech can be more heavily 

regulated than issue speech. See Op. Br. at 42 (collecting cases). 

The FEC did not meet this argument in its Answer Brief, instead asserting

that Citizens United is not limited to commercial transactions. Ans. Br. at 27-28. 

But Citizens United was nevertheless situated explicitly in the context of 

commercial speech. See, e.g., id. at 368 (“Citizens United argues ... that the 

governmental interest in providing information to the electorate does not justify 

requiring disclaimers for any commercial advertisements”). This is merely one of 

many differences between its communication and the Institute’s. 

b. Tax status matters because it highlights the organizational 

differences between Citizens United and the Institute. 

In line with its overall theme that Citizens United controls all as-applied 

challenges to electioneering communication regulations, the FEC argues that “the 

[Citizens United] majority did not even identify the particular section of the tax 

code under which Citizens United was organized.” Ans. Br. at 37. Therefore, the 

 

3 Contrary to the Answer Brief’s misreading of the Institute’s arguments before the 

District Court and this Court (Ans. Br. at 36-37), the Institute has not abandoned 

the argument that the Citizens United’s discussion of the functional equivalent of 

express advocacy for the ads was dicta. Op. Br. at 40.

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Commission argues, there is no “authority that such a distinction would be required 

by the First Amendment.” Id. at 38 (quoting the District Court, J.A. 48).4

 

But the Supreme Court and Congress have long treated § 501(c)(3) 

organizations differently from other nonprofits, at least in part because they are the 

only organizations for which donations are tax deductible. See, e.g., Regan v. 

Taxation with Representation, 461 U.S. 540, 546 (1983) (noting that § 501(c)(3) 

organizations are limited in lobbying activity because “Congress is not required by 

the First Amendment to subsidize lobbying” but allowing § 501(c)(4) 

organizations to lobby). The Internal Revenue Code protects public disclosure of 

nonprofit donors, particularly § 501(c)(3) organizations. See, e.g., 26 U.S.C. § 

6104(d)(3)(A)) (specifically enhancing protection for § 501(c)(3) donor privacy).

Further, the FEC’s citation to cases regulating the businesses activities of 

nonprofits is unpersuasive. The issue before this Court is the particular

constitutional harm of mandatory government reporting and publicity of a § 

501(c)(3)’s donor list. This is not an antitrust matter, and so NCAA v. Bd. of 

Regents of the Univ. of Okla., 468 U.S. 85 (1984) is unhelpful. Nor has there ever 

been any question as to the legitimate nonprofit nature of the Institute, and 

consequently both Zimmerman v. Cambridge Credit Counseling Corp., 409 F.3d 

 

4 The Institute has consistently cited the cases where disclosure of nonprofit donors 

is itself a harm under the First Amendment’s right of association. See, e.g., J.A. 30 

¶ 120 (citing civil rights era cases).

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473 (1st Cir. 2005) and In re Grand Jury Proceedings, 633 F.2d 754 (9th Cir. 

1980) are beside the point. In any event, both antitrust concerns and the validity of 

the Institute’s nonprofit status are well outside both the FEC’s mission and the 

facts of this case, which concern a constitutional right.

Similarly unrelated to public disclosure of donors based upon alleged 

political activity, the FEC cites Center for Competitive Politics v. Harris, ___ F.3d 

___, No. 14-15978, 2015 U.S. App. LEXIS 7239 (9th. Cir. May 1, 2015). Ans. Br. 

at 39. In Harris, plaintiff challenged the California attorney general’s practice of 

demanding the donor lists of all § 501(c)(3) organizations pursuant to her power to 

regulate charitable solicitations. Harris is not a campaign finance case, nor a case 

where the government asserted a right to publicize a donor list. Id. at *3-4; 21 

(“disclosure would not be public”) (emphasis added). In stark contrast, 

electioneering communications reports are disclosed not only publicly, but worldwide on the Internet. 52 U.S.C. § 30112. 

The FEC also relies upon Center for Individual Freedom v. Madigan, 697 

F.3d 464, 490 (7th Cir. 2012), which, while a campaign finance case, is 

nonetheless inapposite. Ans. Br. at 38. Madigan was a facial challenge to an 

Illinois statute regulating, inter alia, “electioneering communications” and PAC 

status. Id. at 470. Unlike federal law, the Illinois statute specifically exempts § 

501(c)(3) speech from regulation as electioneering communications. 10 ILL. COMP.

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STAT. § 5/9-1:14(b)(4). Were the Institute seeking to run an ad encouraging an 

Illinois state senator to support a criminal justice reform in Springfield, no Illinois 

law would compel the disclosure and publication of the Institute’s donors.

The problem of regulating § 501(c)(3) donor disclosure is not new, as 

recognized by all parties—indeed, the FEC once attempted to exempt § 501(c)(3) 

organizations from the electioneering communication regulations. Op. Br. at 45; 

Ans. Br. at 40 (both discussing 11 C.F.R. § 100.29(c)(6) and Shays v. FEC, 337 F. 

Supp. 2d 28, 125 (D.D.C. 2004) aff’d by 414 F.3d 76, 96 (D.C. Cir. 2005)). The 

Commission and District Court both highlighted the “potential problems that might 

emerge by effectively delegating the enforcement of election law to the IRS.” Ans. 

Br. at 40 (quoting J.A. 48 n.12). But the Institute does not ask for reliance on 

Internal Revenue Service enforcement of the tax code. Instead, the Institute merely 

notes that § 501(c)(3) donor disclosure is a specific, special harm recognized by 

the courts and Congress. This affects the required constitutional analysis, and 

further distinguishes this case from Citizens United, which involved a § 501(c)(4) 

organization that already disclosed the donors responsible for its political 

messaging. That decision did not address the special status of § 501(c)(3) 

organizations. Consequently, it could not have foreclosed an argument based upon 

that distinction.

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II. The FEC cites inapplicable cases to bolster its claims that the 

Institute’s challenge is foreclosed. 

a. Cases concerning state ballot elections are not applicable to 

speech on topics not before the electorate.

The Commission conflates ballot measure advocacy with issue speech. Ans. 

Br. at 31-34. Speaking about an active ballot measure is likely “unambiguously 

campaign related,” but speaking about an issue not before the electorate is not.

5

 

Speech supporting or opposing ballot measures is subject to similar 

disclosure as speech supporting or opposing candidates. That is because both are 

related to campaigns. Even then, ballot issues campaigns have fewer regulatory 

burdens than candidate campaigns. See, e.g., Sampson v. Buescher, 625 F.3d 1247,

1256-1258 (10th Cir. 2010) (examining the similarities and differences in 

candidate speech and ballot issue speech). For example, ballot measure campaigns 

are not subject to contribution limits because there is no risk of quid pro quo

corruption. Buckley v. Am. Constitutional Law Found., 525 U.S. 182, 203 (1999).

But the Supreme Court has never held that discussion of issues—that is, public 

policy not on the ballot—can be regulated under the campaign finance regime. 

Following the ballot issue cases cited by the FEC would result in conflating 

 

5 Contrary to amici curiae’s assertion, the “unambiguously campaign related” 

standard is not “newly formulated.” Br. of Amici Curiae Campaign Legal Center 

et. al. at 19. As the Opening Brief detailed, besides the Buckley Court, courts from 

the Fourth, Fifth, and Tenth Circuits have applied this standard. Op. Br. at 33. 

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“discussion of issues” with campaigning—a result rejected by the Supreme Court 

since Buckley v. Valeo, 424 U.S. 1, 42 (1976). 

Indeed, ballot measures often involve designated campaign organizations 

dedicated to supporting or opposing the question before the voters—as highlighted 

by the cases the Commission cites. See Doe v. Reed, 561 U.S. 186, 193 (2010)

(detailing Doe plaintiff’s ballot-access activities in context of a referendum); Am. 

Constitutional Law Found., 525 U.S. at 188 (same); First Nat'l Bank of Boston v. 

Bellotti, 435 U.S. 765, 767 (1978) (detailing corporation’s challenge to state’s ban

on ballot issue advocacy). 

All of the FEC’s cases concerning state initiatives and referenda are 

inapplicable to the Institute’s issue speech about a bill pending before the United 

States Senate. The voters of Colorado could not vote on federal sentencing 

reform—it was up to their Senators to do so. The Institute’s ad was not about any 

campaign—candidate or otherwise. 

b. Direct lobbying cases are similarly inapposite. 

The Commission’s cases discussing direct lobbying are similarly unhelpful. 

In United States v. Harriss, the Court in fact narrowed the Regulation of Lobbying 

Act to apply only to lobbyists who were paid to directly communicate with 

members of Congress for the express purpose of encouraging those members to 

cast specific votes on pending legislation. Ans. Br. at 32-33; United States v. 

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Harriss, 347 U.S. 612, 625 (1954). Indeed, the Buckley Court cited Harriss

specifically as authority permitting a narrowing construction of an overly-broad 

law, and not as carte blanche for federal disclosure provisions. 424 U.S. at 78-79.

That is, the public may have an interest in knowing who is paid to meet with 

members of Congress behind closed doors, or in who pays others to do so on their 

behalf.6

 

The Institute’s donors, on the other hand, are funding an issue ad to the 

public—not paying a registered lobbyist to speak with Senator Udall in private.

Such public speech presents no danger of corruption. 

c. The FEC’s attempt to show that other circuits have upheld broad 

donor disclosure for issue advocacy is unpersuasive. 

As this Court’s sister circuits have noted, and contrary to the FEC’s assertion

(Ans. Br. at 23), McConnell likewise did not alter Buckley’s campaign speech/issue 

speech distinction. The Ninth Circuit has explicitly held that “McConnell ‘left 

intact the ability of courts to make distinctions between express advocacy and issue 

advocacy, where such distinctions are necessary to cure vagueness and overbreadth in statutes which regulate more speech than that for which the legislature 

has established a significant governmental interest.’” ACLU of Nev. v. Heller, 378 

 

6 As progeny of Harriss, National Association of Manufacturers v. Taylor, 582 

F.3d 1 (D.C. Cir. 2009), and Florida League of Professional Lobbyists, Inc. v. 

Meggs, 87 F.3d 457 (11th Cir. 1996) are similarly inapposite because the 

Institute’s ad is not professional lobbying. 

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F.3d 979, 985 (9th Cir. 2004) (quoting Anderson v. Spear, 356 F.3d 651, 664-65 

(6th Cir. 2004)).

The Answer Brief claims sister circuits have approved of electioneering 

communications disclosure in situations similar to the Institute’s. Ans. Br. at 30-

31. They have not. The FEC’s cases are highly distinguishable—in most cases, the 

ads at issue in those cases were unambiguously campaign related.

In Real Truth About Abortion v. FEC, 681 F.3d 544, 546 (4th Cir. 2012), the 

organization hired an actor to voice then-candidate Obama and state how his 

election “would change America,” including with regard to several of Mr. 

Obama’s policy positions. The Real Truth ad is focused on the candidacy of thenSenator Obama. It began, “Just what is the real truth about Democrat Barack 

Obama's position on abortion?” Id. Even in the opening line, the ad stakes out the 

political affiliation of the candidate. The ad then, using an “[a]ctor’s voice 

mimicking Obama’s voice,” details alleged policy positions of the candidate—

including that he would “[a]ppoint more liberal Justices on the U.S. Supreme 

Court,” a point that only makes sense in the context of a campaign for the 

Presidency and that office’s appointment power. Id.; U.S. CONST. art. II, § 2. The 

ad, called “Change,”7 ends, “Now you know the real truth about Obama's position 

 

7 The name of the ad is a play on President Obama’s 2008 campaign messaging—

which from the beginning focused on the need for “change” in Washington. See, 

e.g., ASSOCIATED PRESS, “Obama officially announces run for the White House” 

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on abortion. Is this the change you can believe in?” Id. The ad bears no 

resemblance to the Institute’s.

The Commission’s remaining case law is similarly inapposite. Ans. Br. at 

30-31. Free Speech v. FEC, 720 F.3d 788 (10th Cir. 2013) (case challenging the 

constitutionality of an FEC regulation defining “express advocacy”); Nat’l Org. for 

Marriage v. McKee, 649 F.3d 34, 60 (1st Cir. 2011) (Maine “electioneering 

communications”-like statute did not require disclosure of any donors, merely a 

report that a communication was made, ME. REV. STAT. tit. 21-a, § 1019-B); 

Madigan, 697 F.3d at 485 (upholding electioneering communications with the 

caveat that “Illinois’s definition of ‘electioneering communication’ is limited by 

language nearly identical to that used in [WRTL II] to define the functional 

equivalent of express advocacy”); but see Human Life of Washington, Inc. v. 

Brumsickle, 624 F.3d 990, 1018 (9th Cir. 2010) (splitting from other Circuits in 

holding that ballot measure speech is less protected than candidate speech, but 

noting that “the potential of the Disclosure Law to incidentally regulate issue 

advocacy, to which Human Life objects, would engender far more concern if the 

relevant election involved a candidate”) (emphasis added).

 

CHICAGO BUSINESS NEWS Feb. 7, 2007 available at 

http://web.archive.org/web/20090220201332/http://www.chicagobusiness.com/cgi

-bin/news.pl?id=23835. 

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Likewise, in Wisconsin Right to Life, Inc. v. Barland, the Seventh Circuit 

upheld a Wisconsin law that regulated as “electioneering communications”

only [communications] contain[ing] either Buckley’s magic words or 

their functional equivalents with reference to a clearly identified 

candidate and unambiguously relates to the campaign of that 

candidate or, alternatively, is susceptible of no reasonable 

interpretation other than as an appeal to vote for or against a specific 

candidate.

751 F.3d 804, 838 (2014) (internal citations and quotation marks omitted). That is, 

the Barland court only upheld the provisions of the Wisconsin law that had a nexus 

to campaigns. In doing so, it used a combination of tests—from Buckley’s magic 

words to the Supreme Court’s functional equivalence test. Under Barland’s 

understanding of Wisconsin law, genuine issue advocacy would not trigger the 

burdens of electioneering communications disclosure.

d. The FEC fails to distinguish relevant case law. 

The FEC contends that the “Independence Institute (and its amici) insist that 

court decisions concerning entirely different provisions... are more instructive than 

either of the two Supreme Court decisions upholding the precise statute at issue 

here...” Ans. Br. at 41. But the complex universe of campaign finance law is not 

limited to the FEC’s preferred cases.

This Court’s decision in Buckley v. Valeo, 519 F.2d 821 (D.C. Cir. 1975) (en 

banc) (“Buckley ’75”) aff’d in part and rev’d in part, 424 U.S. 1 (1976), examined 

a very similar law. As discussed at length in the Opening Brief, the original 

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formulation of FECA attempted to regulate, in the name of campaign finance 

disclosure, practically all issue communications and compel disclosure of all of a 

group’s significant donors. Buckley ’75, 519 F.2d at 869-870. This is the same 

scope of regulation contemplated by the FEC’s interpretation of BCRA. The only 

distinction the FEC can make is that BCRA is “temporal[ly] limit[ed].” Ans. Br. at 

50. Of course, those temporal limits extend over a quarter of the year. More

importantly, this portion of Buckley ’75 was unreviewed by the Supreme Court or 

subsequent en banc meeting of this Court and remains good law. Buckley, 424 U.S. 

at 11 n.7.8 It cannot be so easily put aside, as this court has not held that mere 

presence of “temporal limitations” invalidates the reasoning of that en banc 

decision. 

III. The Van Hollen decision changed the legal landscape for 

electioneering communications disclosure. 

The FEC argues that Van Hollen v. FEC, No. 11-0766, 2014 U.S. Dist. 

LEXIS 164833 (D.D.C. Nov. 25, 2014), is “irrelevant” to the Institute’s claims. 

 

8 The Commission’s attorneys consider the Institute’s citations to the Supreme 

Court’s decision in Wisconsin Right to Life “misleading.” Ans. Br. at 42. This is 

hyperbolic and unsupportable. The Institute has been careful to note that WRTL II

involved a speech ban. See, e.g. J.A. 21 ¶ 75 (Verified Complaint explicitly noted 

this aspect of the case). The Institute cites Wisconsin Right to Life for two 

purposes: 1) McConnell’s facial challenge does not preclude future as-applied 

challenges (See, e.g. WRTL I, 546 U.S. at 411-12) and 2) the Supreme Court has 

consistently protected issue speech from campaign finance regulation, in that case, 

using the “functional equivalent of express advocacy” test (J.A. 22 ¶¶ 76-79)—a 

standard a number of states have also embraced. Madigan, 697 F.3d at 485. These 

are unremarkable uses of case law.

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Ans. Br. at 47. To the contrary, Van Hollen substantially broadened the scope of 

donor disclosure beyond that in place for the Citizens United case. Because 

disclosure requirements must be carefully tailored, such a major shift in the law

necessarily changes an exacting scrutiny analysis. And because Citizens United is 

the FEC’s sole binding authority, its failure to consider that change requires the 

convening of a three-judge court.

First, the FEC argues that “BCRA and FEC regulations continue to permit 

corporations and others...to limit the scope of their donor disclosure by financing 

such communications from a segregated account.” Ans. Br. at 48. But forcing 

organizations to set up accounting schemes merely to speak on issues is 

burdensome. When faced with similar arguments, the Citizens United Court noted 

that “a PAC created by a corporation can still speak” but held that “PACs are 

burdensome alternatives” because PACs “have to comply with these regulations 

just to speak.” 558 U.S. at 337-38. More importantly, setting up new accounts can 

take time, and “a corporation may not be able to establish a PAC in time to make 

its views known regarding candidates and issues in a current campaign.” Id. at 339. 

This reasoning has been in place since FEC v. Mass. Citizens for Life, Inc., 479 

U.S. 238, 253 (1986) (Brennan, J. for the plurality) (noting organizational and 

accounting requirements for a “separate segregated fund”). The Commission has 

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repeatedly attempted this line of attack, and it has been repeatedly rebuffed by the 

Supreme Court. 

Second, the Commission argues that 11 C.F.R. § 104.20(c)(9) is “irrelevant” 

because the statutory scheme for electioneering communications disclosure was 

upheld in a facial challenge—McConnell. Ans. Br. at 48-49. As discussed in the 

Opening Brief, a facial challenger carries a “heavy burden” and must show that the 

law is unconstitutional in almost every application. Op. Br. at 35. The McConnell

plaintiffs could not show that “all enforcement of the law should... be prohibited.” 

FEC v. Wis. Right to Life, Inc., 551 U.S. 449, 456 (2007) (“WRTL II”) (emphasis in 

original). A facial ruling is not a basis for holding an as-applied challenge 

foreclosed. 

Knowing that it requires as-applied authority to foreclose the Institute’s 

claim, the Commission argues that Citizens United “upheld the statutory provisions 

without relying on, let alone considering or even mentioning in passing, the 

regulation” and therefore did not “rel[y] on a particular limiting constructions of 

the statute it upheld.” Ans. Br. at 48-49. But the record before the Court, including 

a specific reference in the district court’s opinion, clearly explained the earmarking 

provisions of the FEC’s regulation. Citizens United v. FEC, 530 F. Supp. 2d 274, 

280 (D.D.C. 2010). Indeed, in explaining the law to the Supreme Court, the 

Commission itself noted the limitations of 11 C.F.R. 104.20(c) a number of times. 

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Brief for Appellee at 5, Citizens United v. FEC, No. 08-205 (U.S. Feb. 17, 2009)

(“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)”); id. at 30 (“During discovery, [Citizens United] 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 thenSenators Clinton and Obama. See...11 C.F.R. 104.20(c)(9)” (emphasis in 

original)). The Citizens United Court listened, and noted that the disclosure 

statement required by BCRA required only “the names of certain contributors.” 

558 U.S. at 366.

Accordingly, Citizens United did not deal with the burdens of establishing, 

raising money especially for, and maintaining an “Electioneering Communications 

Fund.” Instead, Citizens United held that requiring extra layers of organizational 

structure is incompatible with the First Amendment. Citizens United, 558 U.S. at 

339. Sister circuits still follow this bedrock principle of First Amendment law. 

Third, the FEC claims that the Van Hollen court invalidated the 

Commission’s regulation based on Citizens United. Ans. Br. at 49. As noted above, 

to the extent the district court did so, it erred. But the Van Hollen decision is better 

understood as an administrative law ruling. Van Hollen, No. 11-0766, 2014 U.S. 

Dist. LEXIS 164833 at *66 (“the Court cannot conclude that the FEC examine[d] 

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the relevant data and articulate[d] a satisfactory explanation for its action...”) 

(citing Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 

43 (1983)) (brackets in Van Hollen, internal quotation marks omitted). In any 

event, the district court’s opinion of Citizens United cannot bind this Court.

Fourth, while the FEC says the “Independence Institute is wrong” to fear 

that running its ads will trigger disclosure of all its donors, the FEC fails to explain 

why. It only mentions the “Act’s carefully tailored temporal limits” that are not 

applicable once the election is over. Ans. Br. at 50. That is little comfort. Already, 

groups like the Institute must either remain silent for a quarter of the year or else, 

despite the protections of federal tax law, open their entire donor disclosure to 

public inspection. And under the Commission’s view, Congress could expand the 

electioneering communications window at any time without constitutional 

difficulty. 

Moreover, the FEC believes it is acceptable to have greater regulation for an 

ad saying “Vote for Udall” than an ad asking “Senator Smith, support S. 619, the 

Justice Safety Valve Act.” Ans. Br. at 50. Under this rationale, there is no need for 

a nexus between elections and the regulation of speech—at least for a quarter of 

the year. The Commission cites no authority upholding this baffling approach.9 Its 

 

9 In this vein, the Commission confusingly cites to public interest in the financial 

support for a particular scholar researching gun control policy for the Institute. 

Ans. Br. at 29 n.7. That public interest may or may not exist—there is no record on 

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citation to McConnell is merely to the Court’s description of BCRA’s legislative 

history. In that facial challenge, the Court noted that some organizations were 

created with an electoral purpose—and misleading names. McConnell, 540 U.S. at 

128-29. Of course, that is clearly not the case here.

Fifth, the FEC argues that the Institute “would not have avoided disclosure 

even pre-Van Hollen” because “corporations were still required to disclose 

donations ‘made for the purpose of furthering electioneering communications.’” 

Ans. Br. at 50 (citing 11 C.F.R. § 104.20(c)(9)) (emphasis FEC’s).

10. Of course—

and the Institute believes that even earmarked disclosure is unconstitutional as 

applied to this communication. But post-Van Hollen, all of the Institute’s donors 

are now subject to the possibility of disclosure, not just those who earmark their 

contribution to fund the Institute’s proposed speech. Nothing in the Supreme 

Court’s terse discussion of disclosure in Citizens United indicates that the Court 

would have approved of such a far-reaching scheme as applied to a nonprofit’s 

genuine issue speech. If nothing else, this change in the law necessitates new, asapplied review by a three-judge court. The Supreme Court cannot foreclose that 

which it has not reviewed. 

 

this point. But it has nothing to do with the Commission’s mandate or with this 

case. And it again suggests that the Commission believes mere public curiosity, 

and not connection to an election, should be the trigger for public disclosure.

 

10 In the Complaint, the Institute averred that it intended to raise funds specifically 

for the proposed ad. J.A. 13 ¶¶ 36-37

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The Commission’s approach to Van Hollen is especially puzzling given its 

strong reliance on 11 C.F.R. § 104.20(c)(9) in this very case. In its earlier attempts 

to defeat the Institute’s claims, it stated that the regulation “remaine[d] 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, 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.” Id. (second emphasis added, 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. 

Contrary to the FEC’s assertions at this stage of the litigation, Van Hollen’s 

removal of the Commission’s rule 11 C.F.R. § 104.20(c)(9) is highly relevant and 

materially changes the exacting scrutiny analysis. These issues were not considered 

by the District Court. They should not be decided here, in the first instance, by the 

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Court of Appeals. Rather, a three-judge court should be convened to consider these 

important arguments.

IV. Disclosure imposes a First Amendment burden regardless of whether 

a group or its donors are faced with specific threats, harassments, or 

reprisals.

Under the FEC’s theory, the only viable as-applied challenge is one where 

there is an existing probability that donors will be threated, harassed, or faced with

reprisals. Ans. Br. 44-46. Moreover, the FEC states that the Institute “express[ly] 

waive[d] any such claim.” Ans. Br. at 44 (citing joint stipulation). But the joint 

stipulation reads

The Independence Institute’s challenge does not rely upon the 

probability that its donors will be subject to threats, harassment, or 

reprisals as a result of the Institute’s filing of an Electioneering 

Communications statement..... it has neither alleged nor introduced 

any evidence—nor will it allege or introduce any evidence—that there 

is a reasonable probability that its donors would face threats, 

harassment, or reprisals if their names were disclosed...

J.A. 34. This is not a mere technicality; it shows the FEC’s fundamental 

misunderstanding of the law. 

The Institute cannot know before speaking if disclosure of its donors will 

result in threats, harassment, or reprisals. Nor could a new organization possibly 

meet that burden. Yet, the FEC demands that the Institute prove disclosure is 

harmful by disclosing its donors first, and then seeing if harm befalls them. This is 

circular. Moreover, unlike the Buckley, McConnell, or Citizens United plaintiffs, 

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the Independence Institute is a non-political think tank that does not disclose its 

donors. Disclosure itself is the harm. Talley v. California, 362 U.S. 60, 65 (1960)

(striking down disclosure statute); id. at 69 (Clark, J. dissenting) (“the record is 

barren of any claim, much less proof...that [plaintiff] or any group sponsoring him 

would suffer economic reprisal, loss of employment, threat of physical coercion 

[or] other manifestations of public hostility”) (citation and quotation marks 

removed, bracket in original). 

While Buckley approved disclosure, it did so only after narrowing disclosure 

to organizations (or activities) that were unambiguously campaign related. 424 

U.S. at 80. Because Buckley was a facial ruling, it could not have been premised 

upon a record concerning the threats, harassment, or reprisal of particular donors. 

Nor was it stating that this was the only grounds upon which an as-applied case 

could be brought. This is obvious from the as-applied challenges that were, in fact, 

subsequently brought on other grounds. See, e.g., Mass. Citizens for Life, 479 U.S. 

238 (challenge based on speech ban). 

To counter this straight forward analysis, the FEC again cites the unrelated 

recent Ninth Circuit decision in Harris. Ans. Br. at 45. As examined, supra, Harris

is not a campaign finance case, and did not involve public disclosure of donors. 

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V. The FEC misunderstands the mootness doctrine’s “capable of 

repetition, yet evading review” exception. 

The FEC, for the first time in this litigation, argues that the Independence 

Institute’s claims are moot. Ans. Br. at 46. Indeed, initially the Commission 

specifically contradicted that argument in its Motion for Summary Affirmance 

before this Court, filed after the 2014 election. Mot. for Summ. Aff. at 10 n.2 

(citing WRTL II, 551 U.S. 449, 461-464 (2007); V. Compl. ¶¶ 2, 127) (stating, 

“[n]evertheless, Independence Institute’s challenge appears to fall within the 

“exception to mootness for disputes capable of repetition, yet evading review”). 

This new argument on mootness contravenes black letter law, and the 

Supreme Court and lower courts have repeatedly rejected the FEC’s mootness 

claims. The electioneering communications window is far shorter than the timeline 

for federal litigation. Therefore, the federal courts have long recognized—often in 

cases involving the FEC itself—that election law cases are exempted from the 

mootness doctrine when the injury is capable of repetition, yet evading review. 

In WRTL II, the Supreme Court noted that it would be “‘entirely 

unreasonable . . . to expect that [WRTL] could have obtained complete judicial 

review of its claims in time for it to air its ads’ during the BCRA blackout periods” 

(the same time periods at issue here). 551 U.S. at 462 (quoting and approving Wis. 

Right to Life, Inc. v. FEC, 466 F. Supp. 2d 195, 202 (D.D.C. 2006)). Therefore, the 

WRTL II Court held that electioneering communications challenges were “capable 

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of repetition, yet evading review.” Id. at 462. This exception to mootness has two 

elements: “(1) the challenged action is in its duration too short to be fully litigated 

prior to cessation or expiration, and (2) there is a reasonable expectation that the 

same complaining party will be subject to the same action again.” Id. (citation and 

quotation marks omitted).11 In WRTL itself, “two BCRA blackout periods ha[d] 

come and gone during the pendency of th[e] action,” nonetheless, the Supreme 

Court reached the merits. Id. 

Indeed, in WRTL, “[t]he FEC argue[d] that in order to prove likely 

recurrence of the same controversy, WRTL must establish that it will run ads in the 

future sharing all the characteristics that the district court deemed legally relevant.” 

Id. at 463. The FEC repeats a similar argument before this Court, arguing that 

because the relevant electioneering communications window has closed for 2014, 

the Institute is in no danger of triggering disclosure if it ran the ad today. Ans. Br. 

at 46. But the Supreme Court roundly rejected the assertion: “The FEC asks for too 

much. We have recognized that the ‘capable of repetition, yet evading review’ 

doctrine, in the context of election cases, is appropriate when there are ‘as applied’

challenges as well as in the more typical case involving only facial attacks.” Id. 

 

11 In WRTL II, the FEC argued that the two year period between elections allowed 

a sufficient opportunity to litigate claims. But the Supreme Court rejected that idea, 

because “groups like WRTL cannot predict what issues will be matters of public 

concern during a future blackout period.” Id. 

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(quoting Storer v. Brown, 415 U.S. 724, 737, n.8 (1974) (some internal quotation 

marks omitted). 

The Court reaffirmed this view in Davis v. FEC, 554 U.S. 724, 736 (2008). 

The Davis Court clarified that the desire to repeat the relevant activity need not be 

specifically plead—a mere assertion in the press of a possibility of another run for 

office was enough to keep Davis’s claims from being moot. Id. at 736. This result 

has been noted and followed in other cases. Kucinich v. Tex. Democratic Party, 

563 F.3d 161, 164-65 (5th Cir. 2009) (collecting cases) (“[t]he [Supreme] Court 

has not, however, dismissed an election case as moot where the plaintiff failed to 

allege that he would be governed by the same flawed law in the next election”). 

Indeed, Citizens United was decided long after the 2008 election. Yet in 

Citizens United, the Court noted:

By the time the lawsuit concludes, the election will be over and the 

litigants in most cases will have neither the incentive nor, perhaps, the 

resources to carry on, even if they could establish that the case is not 

moot because the issue is “capable of repetition, yet evading 

review”...Here, Citizens United decided to litigate its case to the 

end...long after the opportunity to persuade primary voters has 

passed.

Citizens United, 558 U.S. at 334 (citations omitted). If Citizens United’s claim 

involving a specific movie and specific candidacy was not moot years later, the 

Institute’s claim is not moot now.

The “capable of repetition yet avoiding review” exception is applicable here. 

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As in Citizens United, and Wisconsin Right to Life, the BCRA electioneering 

communication window is too brief for full review of constitutional claims. The 

Institute brought this action just before the electioneering communications window 

opened. Ans. Br. at 13; J.A. 14 ¶ 41. The Institute sought every opportunity to aid 

in the quick resolution of the challenge—including limiting the scope of the issues, 

agreeing to expedited proceedings, and limiting discovery. See, e.g., J.A. 34. The 

District Court did not release its opinion until just a few weeks before the election. 

J.A. 37. The Institute quickly appealed to this Court. J.A. 5. 

The Institute is in the business of public education concerning issues, and it 

will wish to run similar advertisements in the future. As each claimant raising a 

constitutional objection to the federal electioneering communications regime has 

found, there is insufficient time to vindicate one’s rights in court before the 

election passes. That is no reason for the FEC to consistently seek, unsuccessfully, 

to insulate itself from legal challenge. Nor is it sufficient reason for the 

Commission to conjure a mootness objection after previously conceding that none 

exists.

VI. The bar for a three-judge district court is low, and has been met 

here.

The Institute addressed the standard for a three-judge district court in its 

Opening Brief. With slight differences, the parties agree that Feinberg states the 

test for determining if a constitutional claim is foreclosed by Supreme Court 

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precedent. Op. Br. at 15; Ans. Br. at 53 (both applying Feinberg, 522 F.2d at 1338-

39).12

Under that and similar standards, courts have permitted expedited review of 

as-applied challenges that have not been previously considered. For instance, in

Cao v. FEC, a case relied upon by the Commission, the district court certified 

several constitutional questions to the en banc Fifth Circuit Court of Appeals

despite finding others frivolous. 688 F. Supp. 2d 498, 549 (E.D. La. 2010) aff'd 

som. nom. Republican Nat’l Comm. v. FEC (In re Anh Cao), 619 F.3d 410, 413 

(5th Cir. 2010). The same is true for Libertarian Nat’l Comm., Inc. v. FEC, 930 F. 

Supp. 2d 154, 171 (2013) (Wilkins, J.), where the district court certified a narrower 

as-applied question, despite finding a facial challenge foreclosed. These cases 

demonstrate that as-applied challenges to the 40 year old campaign finance regime 

can still be substantial. In that light, the Commission’s attempt to explain away its 

decision to permit McCutcheon v. FEC to be heard by a three-judge court while 

opposing that same outcome here, is puzzling. Order on Motion for a Three-Judge 

Court, McCutcheon v. FEC, No. 12-1034 (D.D.C. June 25, 2012) (Dkt. No. 10) 

(“Plaintiffs here have filed an unopposed request for a 3-judge court”). As the 

 

12 The Commission asserts that “it is not true that the Supreme Court... reversed a 

denial of an application for a three-judge court” in the Wisconsin Right to Life 

cases. Ans. Br. at 56 (citing Op. Br. at 14). The FEC is correct. In WRTL, the threejudge court was convened, and it was the three-judge court that initially denied 

relief based on McConnell’s facial challenge and was subsequently overruled. 

WRTL I, 546 U.S. at 411. The Institute regrets this error. 

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Institute has already noted, aggregate limits, the subject of the McCutcheon

challenge, had also been previously upheld. Op. Br. at 15; Buckley, 424 U.S. at 38 

(upholding aggregate contribution limit). 

None of the Commission’s authority is sufficient to evade the core of this 

case. The Supreme Court has never permitted donor disclosure, and especially the 

general disclosure required after Van Hollen, for an advertisement unrelated to any 

campaign.

Conclusion

For the foregoing reasons and those stated in the Plaintiff-Appellant’s 

Opening Brief, the judgment of the District Court should be reversed. The merits 

of the Independence Institute’s constitutional claims should be heard by a threejudge district court pursuant to 52 U.S.C. § 30110 note.

Dated: May 22, 2015

Respectfully Submitted,

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 Plaintiff-Appellant

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Certificate of Compliance

I hereby certify that this brief complies with the type-volume limitation set 

forth in Federal Rule of Appellate Procedure 32(a)(7)(B)(ii) because it contains 

6,944 words, excluding the parts of the brief exempted by Federal Rule of 

Appellate Procedure 32(a)(7)(B)(iii). 

This brief complies with the typeface requirements of Federal Rule of 

Appellate Procedure 32(a)(6) because it has been prepared in a proportionallyspaced typeface using Microsoft Word 2010 in Times New Roman 14-point font.

Dated: May 22, 2015 s/ Allen Dickerson

Allen Dickerson

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Certificate of Service

I hereby certify that on May 22, 2015, I electronically filed the foregoing 

using the court’s CM/ECF system which will automatically generate and send by 

email a Notice of Docket Activity to all registered attorneys currently participating 

in this case, constituting service on those attorneys.

s/ Allen Dickerson

Allen Dickerson

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