UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

_______________________________________ 

 ) 

INDEPENDENCE INSTITUTE, ) 

 ) 

 Plaintiff, ) 

 ) 

 v. ) Civ. No. 14-1500 (CKK) 

 ) 

FEDERAL ELECTION COMMISSION, ) OPPOSITION 

 ) 

 Defendant. ) 

_______________________________________) 

DEFENDANT FEDERAL ELECTION COMMISSION’S MEMORANDUM OF LAW 

IN OPPOSITION TO PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION 

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

Deputy General Counsel — Law 

lstevenson@fec.gov 

Kevin Deeley 

Acting Associate General Counsel 

kdeeley@fec.gov 

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

Acting Assistant General Counsel 

echlopak@fec.gov 

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

Attorney 

mcolumbo@fec.gov 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street NW 

Washington, DC 20463 

September 19, 2014 (202) 694-1650 

 

Case 1:14-cv-01500-CKK Document 19 Filed 09/19/14 Page 1 of 42
TABLE OF CONTENTS 

 Page 

BACKGROUND .......................................................................................................................2 

I. RELEVANT STATUTORY AND REGULATORY PROVISIONS ...........................2 

A. The Origin of “Electioneering Communications” .............................................3 

B. The Supreme Court Resolved Facial and As-Applied Constitutional 

Challenges to BCRA’s EC Provisions in McConnell, WRTL, 

and Citizens United ............................................................................................6

II. PLAINTIFF’S CLAIMS ..............................................................................................10 

III. PROCEDURAL HISTORY .........................................................................................12 

ARGUMENT ...........................................................................................................................12 

I. STANDARD OF REVIEW .........................................................................................12 

II. AS THE SUPREME COURT HAS HELD, THE EC DISCLOSURE 

PROVISIONS ARE CONSTITUTIONAL .................................................................13 

A. The Challenged EC Provisions Are Subject to Intermediate Scrutiny ............13 

B. BCRA’s Definition of “Electioneering Communication” is Clear, 

Objective, and Constitutional ...........................................................................14 

C. BCRA’s EC Disclosure Requirements Are Constitutional, Including 

As Applied to Plaintiff’s Proposed Advertisement ..........................................18 

1. The EC Disclosure Requirements Are Substantially Related to the 

Government’s “Sufficiently Important” Informational Interest ..........18

2. All of Plaintiff’s Attempts to Minimize, Distinguish, or Disregard 

 Citizens United Lack Merit .................................................................22

a. The Portion of Citizens United Upholding EC Disclosure 

Requirements as Applied to Communications Lacking Any 

Candidate Advocacy is a Constitutional Holding That is 

Binding on This Court ..............................................................23

Case 1:14-cv-01500-CKK Document 19 Filed 09/19/14 Page 2 of 42
ii

b. Plaintiff’s Out-of-Circuit Authorities Confirm That Citizens 

United Forecloses This Challenge ...........................................25

c. Whether Plaintiff’s Proposed Advertisement is “Pejorative” 

Is Irrelevant ..............................................................................28

d. It Makes No Difference Which Subsection of the Internal 

Revenue Code Plaintiff Relies On For Its Tax Exemption .......29

 

e. “Principles” Articulated in the D.C. Circuit’s 1975 Buckley

Opinion Do Not Supersede the Supreme Court’s Recent 

Decision Rejecting the Precise Constitutional Challenge 

Asserted Here ...........................................................................31

III. PLAINTIFF FAILS TO IDENTIFY ANY UNCONSTITUTIONAL BURDEN 

ARISING FROM THE EC DISCLOSURE REQUIREMENTS ..................................31 

CONCLUSION ........................................................................................................................34 

 

Case 1:14-cv-01500-CKK Document 19 Filed 09/19/14 Page 3 of 42
iii

TABLE OF AUTHORITIES 

Page

Cases 

Am. Civil Liberties Union of N.J. v. N.J. Election Law Enforcement Comm’n, 

509 F. Supp. 1123 (D.N.J. 1981) .................................................................................22 

 

Am. Fed’n of Gov’t Employees, Local 446 v. Nicholson, 475 F.3d 341 (D.C. Cir. 2007) ......12 

Buckley v. Am. Constitutional Law Found., Inc., 525 U.S. 182 (1999) ...................................20 

Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam) ...............................................................3, 32

Ctr. for Individual Freedom v. Madigan, 697 F.3d 464 (7th Cir. 2012) .........18, 26, 27, 30, 31 

Ctr. for Individual Freedom v. Van Hollen, 694 F.3d 108 (D.C. Cir. 2012) (per curiam) ..8, 34 

*Citizens United v. FEC, 558 U.S. 310 (2010) ................................................................ passim 

Citizens United v. FEC, 530 F. Supp. 2d 274 (D.D.C. 2008) ........................................9, 19, 24 

Comm’n on Indep. Coll. & Univ. v. N.Y. Temp. State Comm’n on Regulation of 

Lobbying, 534 F. Supp. 489 (N.D.N.Y. 1982) .............................................................22 

Curtis 1000, Inc. v. Suess, 24 F.3d 941 (7th Cir. 1994) ...........................................................13 

Doe v. Reed, 561 U.S. 186 (2010) ..........................................................................................13 

FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. 238 (1986) ..........................................4 

FEC v. Wisconsin Right to Life, Inc., 551 U.S. 449 (2007) ...................................................6, 7 

First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765 (1978) .................................................. 20, 21 

Fla. League of Prof’l Lobbyists, Inc. v. Meggs, 87 F.3d 457 (11th Cir. 1996) ........................21 

Free Speech v. FEC, 720 F.3d 788 (2013), cert. denied, 134 S. Ct. 2288 (2014) ......17, 26, 31 

GCI Health Care Ctrs., Inc. v. Thompson, 209 F. Supp. 2d 63 (D.D.C. 2002) ......................12 

Hispanic Leadership Fund, Inc. v. FEC, 897 F. Supp. 2d 407 (E.D. Va. 2012) ....................20 

Human Life of Wash. Inc. v. Brumsickle, 624 F.3d 990 (9th Cir. 2010) ..........18, 20, 26, 29, 31 

Case 1:14-cv-01500-CKK Document 19 Filed 09/19/14 Page 4 of 42
iv

Kimbell v. Hooper, 665 A.2d 44 (Vt. 1995) ............................................................................22 

*McConnell v. FEC, 540 U.S. 93 (2003) ......................................................................... passim 

McIntyre v. Ohio Elections Comm’n, 514 U.S. 334 (1995) ...................................................21 

Minn. State Ethical Practices Bd. v. Nat’l Rifle Ass’n of Am., 761 F.2d 509 

(8th Cir. 1985) (per curiam) .........................................................................................22 

Morris v. Dist. of Columbia, No. 14-0338 (RC), 2014 WL 1648293 

(D.D.C. April 25, 2014) ...............................................................................................13 

Nat’l Ass’n of Mfrs. v. Taylor, 582 F.3d 1 (2009) ...................................................................21 

Nat’l Org. for Marriage v. McKee, 649 F.3d 34 (1st Cir. 2011) .................................18, 26, 31 

National Org. for Marriage, Inc. v. Sec’y, State of Fla., 477 Fed. Appx. 584 

 (11th Cir. May 17, 2012) (per curiam) .......................................................................26 

Real Truth About Abortion v. FEC, 681 F. 3d 544 (4th Cir. 2012) .............................17, 25, 31 

Shays v. FEC, 337 F. Supp. 2d 28 (2004) ...............................................................................30 

*SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir. 2010) (en banc) .....................13, 14, 26, 31 

United States v. Harriss, 347 U.S. 612 (1954) ........................................................................21 

Wisconsin Right to Life v. Barland, 751 F.3d 804 (7th Cir. 2014) ........................17, 26, 27, 31 

Statutes and Regulations 

Bipartisan Campaign Reform Act (“BCRA”) §§ 201-204, 116 Stat. 88-90, 52 U.S.C. 

§§ 30104(f)(1)-(2), 30118(a), (b)(2) (2 U.S.C. §§ 434(f)(1)-(2), 441b(a), (b)(2)) ........5 

Federal Election Campaign Act, 52 U.S.C. §§ 30101-30146 (2 U.S.C. §§ 431-457) ...............2 

26 U.S.C. § 6104(b), (d)(3)(A) ...............................................................................................30 

52 U.S.C. § 30101(8)(A)(i) (2 U.S.C. § 431(8)(A)(i)) ..............................................................3 

52 U.S.C. § 30101(9)(A)(i) (2 U.S.C. § 431(9)(A)(i)) ..............................................................3 

52 U.S.C. § 30101(11) (2 U.S.C. § 431(11)) .............................................................................5 

Case 1:14-cv-01500-CKK Document 19 Filed 09/19/14 Page 5 of 42
v

52 U.S.C. § 30101(17) (2 U.S.C. § 431(17)) ............................................................................4 

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

52 U.S.C. § 30104(c)(1) (2 U.S.C. § 434(c)(1)) .......................................................................4 

52 U.S.C. § 30104(f) (2 U.S.C. § 434(f)) ..................................................................................6 

52 U.S.C. § 30104(f)(1) (2 U.S.C. § 434(f)(1)) ........................................................................5 

52 U.S.C. § 30104(f)(1)-(2) (2 U.S.C. § 434(f)(1)-(2)) .............................................................5 

52 U.S.C. § 30104(f)(1), (2)(A) (2 U.S.C. § 434(f)(1), (2)(A)) .................................................5 

52 U.S.C. § 30104(f)(2)(E) (2 U.S.C. § 434(f)(2)(E)) .............................................................34 

52 U.S.C. § 30104(f)(2)(E)-(F) (2 U.S.C. § 434(f)(2)(E)-(F)) ..................................................6 

52 U.S.C. § 30104(f)(3)(A) (2 U.S.C. § 434(f)(3)(A)) ..............................................................5 

52 U.S.C. § 30104(f)(3)(A)(i) (2 U.S.C. § 434(f)(3)(A)(i)) ..................................................5, 6 

52 U.S.C. § 30106(b)(1) (2 U.S.C. § 437c(b)(1)) ......................................................................2 

52 U.S.C. § 30107(a)(8) (2 U.S.C. § 437d(a)(8)) ......................................................................2 

52 U.S.C. § 30111(a)(8), (d) (2 U.S.C. § 438(a)(8), (d)) ...........................................................2 

52 U.S.C. § 30116(a) (2 U.S.C. § 441a(a)) ................................................................................3 

52 U.S.C. § 30118 (2 U.S.C. § 441b) ....................................................................................4, 6 

52 U.S.C. § 30118(a) (2 U.S.C. § 441b(a)) ...........................................................................3, 5 

52 U.S.C. § 30118(b)(2) (2 U.S.C. § 441b(b)(2)) ......................................................................5 

52 U.S.C. § 30118(b)(2)(C) (2 U.S.C. § 441b (b)(2)(C)) ......................................................3, 5 

52 U.S.C. § 30120 (2 U.S.C. § 441d) ........................................................................................6 

11 C.F.R. § 100.29(a)(2) ...........................................................................................................5 

11 C.F.R. § 104.20(c)(7)(ii) ................................................................................................8, 34 

11 C.F.R. § 104.20(c)(9) ......................................................................................................8, 33 

Case 1:14-cv-01500-CKK Document 19 Filed 09/19/14 Page 6 of 42
vi

Federal Election Campaign Act Amendments of 1976, Pub. L. No. 94-283, § 102(g)(3), 

 90 Stat. 475, 479 (1976) (codified at 52 U.S.C. § 30101(17) 

(2 U.S.C. § 431(17)) ......................................................................................................4 

Miscellaneous 

Editorial Reclassification Table, 

http://uscode.house.gov/editorialreclassification/t52/Reclassifications_Title_ 

52.html ...........................................................................................................................2 

Fed. R. Civ. P. 56 .....................................................................................................................12 

Frank Smyth, The Times Has Finally (Quietly) Outed an NRA-Funded “Independent” 

Scholar, The Progressive (Apr. 23, 2014), 

http://www.progressive.org/news/2014/04/187663/times-has-finally-quietly 

-outed-nra-funded-%E2%80%9Cindependent%E2%80%9D-scholar ........................16 

 

Eli Stokols, NRA Money Behind Lawsuit Challenging New Colo. Gun Control Laws, 

Fox31 Denver (May, 29, 2013, 9:56 p.m.), http://kdvr.com/2013/05/29/ 

nra-money-behind-lawsuit-challenging-new-colo-gun-control-laws/ ........................16

Case 1:14-cv-01500-CKK Document 19 Filed 09/19/14 Page 7 of 42
This case asks the Court to decide the constitutionality of event-driven disclosure 

requirements concerning the sources and financing of certain clearly and objectively defined 

“electioneering communications” (“ECs”). The challenged EC disclosure rules apply only to 

advertisements that refer to a clearly identified candidate for federal office, and that are 

(a) publicly distributed, (b) via certain specific mediums, (c) within 60 days before a federal 

primary or general election, and (d) in the jurisdiction in which the identified candidate is 

running for office. Less than five years ago, in Citizens United v. FEC, 558 U.S. 310 (2010), 

eight Justices of the Supreme Court squarely decided the exact question presented here and held 

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

election” and this “informational interest alone” is sufficient to uphold the constitutionality of the 

statutory disclosure requirements for federal ECs. Id. at 369. 

Plaintiff asks this Court to hold that “only communications that ‘expressly advocate the 

election or defeat of a clearly identified candidate’” may be constitutionally subject to the EC 

disclosure requirements. (Compl. ¶ 122; see Pl’s. Mem. of Law in Supp. of Mot. for a Prelim. 

Inj. at 4-5 (“Pl.’s Mem.”).) The plaintiff in Citizens United made the same argument and the 

Supreme Court explicitly “reject[ed] Citizens United’s contention that the disclosure 

requirements must be limited to speech that is the functional equivalent of express advocacy.” 

558 U.S. at 369. The Court, in an earlier case, had imposed such a limitation on a statutory 

provision that prohibited corporations and unions from directly financing certain 

communications with their general treasury funds. But in Citizens United, the Court refused to 

“import a similar distinction into [the] disclosure requirements” for ECs. Id. at 368-69. The 

Court was clear and unequivocal: it not only refused to impose a functional-equivalent-ofexpress-advocacy limitation on the EC disclosure rules, as plaintiff proposes here, the Court also 

Case 1:14-cv-01500-CKK Document 19 Filed 09/19/14 Page 8 of 42
2

held that such disclosure requirements are constitutional “even” as applied to “ads [that] only 

pertain to a commercial transaction.” Id. at 369. 

This Court is bound by the Supreme Court’s holding in Citizens United, which directly 

resolves the only legal question in this case in favor of the Federal Election Commission. The 

Court should accordingly deny plaintiff’s Motion for a Preliminary Injunction, which the parties 

and the Court have agreed to consolidate with a final determination of the merits of this case,1

and enter judgment in favor of the Commission. 

BACKGROUND 

I. RELEVANT STATUTORY AND REGULATORY PROVISIONS 

The Commission is the independent agency of the United States government with 

exclusive jurisdiction over the administration, interpretation, and civil enforcement of the Federal 

Election Campaign Act (“the Act” or “FECA”), codified at 52 U.S.C. §§ 30101-30146 (formerly 

2 U.S.C. §§ 431-457), including the amendments added by the Bipartisan Campaign Reform 

Act.2

 The Commission is empowered to “formulate policy” with respect to the Act, 52 U.S.C. 

§ 30106(b)(1) (2 U.S.C. § 437c(b)(1)), and “to make, amend, and repeal such rules . . . as are 

necessary to carry out the provisions of [the] Act,” 52 U.S.C. §§ 30107(a)(8), 30111(a)(8), (d) 

(2 U.S.C. §§ 437d(a)(8), 438(a)(8), (d)). 

 

1 See Joint Stipulation of the Parties and Order of the Court as to the Scope of Plaintiff’s 

Allegations and Claims (Sept. 10, 2014) (Docket No. 14) (memorializing the parties’ agreement 

and the Court’s order that consideration of plaintiff’s Motion for Preliminary Injunction shall be 

consolidated with a determination of the merits of this case). 

2

 Effective September 1, 2014, the provisions of FECA that were codified in Title 2 of the 

United States Code were recodified in a new title, Title 52. See Editorial Reclassification Table, 

http://uscode.house.gov/editorialreclassification/t52/Reclassifications_Title_52.html. To avoid 

confusion, this submission will indicate in parentheses the former Title 2 citations. 

Case 1:14-cv-01500-CKK Document 19 Filed 09/19/14 Page 9 of 42
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A. The Origin of “Electioneering Communications” 

FECA places limits on the amount individuals may contribute to candidates, their 

campaigns, and other political committees and parties. 52 U.S.C. § 30116(a) (2 U.S.C. 

§ 441a(a)). In addition, FECA prohibits corporations and labor organizations from making 

contributions to federal candidates or their authorized committees, except through such entities’ 

separate segregated funds (also known as political action committees or PACs). Id. §§ 30118(a), 

(b)(2)(C) (2 U.S.C. §§ 441b(a), (b)(2)(C)).3

 And, before the Supreme Court’s decision in 

Citizens United, FECA prohibited corporations and unions from making any “expenditures,” 

defined as “any purchase, payment, distribution, loan, advance, deposit, or gift of money or 

anything of value, made . . . for the purpose of influencing any election for Federal office.” Id. 

§ 30101(9)(A)(i) (2 U.S.C. § 431(9)(A)(i)); see id. § 30118(a) (2 U.S.C. § 441b(a)). FECA also 

requires periodic disclosure of contributions and certain expenditures and disbursements to the 

FEC, which then makes the information available to the public. Id. § 30104 (2 U.S.C. § 434). 

In 1976, the Supreme Court generally upheld FECA’s contribution limits and disclosure 

requirements against a facial challenge, but the Court struck down the Act’s limits on 

expenditures by individuals and candidates. Buckley v. Valeo, 424 U.S. 1, 43-44 (1976) (per 

curiam). When the Court analyzed FECA’s then-$1,000 limit on expenditures by any person 

“relative to” a federal candidate, the Court construed “expenditure” narrowly to avoid 

invalidating the provision on vagueness grounds and applied it “only to expenditures for 

communications that in express terms advocate the election or defeat of a clearly identified 

candidate for federal office.” Id. at 44 (footnote omitted). 

 

3

 FECA defines “contribution” to include “any gift, subscription, loan, advance, or deposit 

of money or anything of value made . . . for the purpose of influencing any election for Federal 

office.” 52 U.S.C. § 30101(8)(A)(i) (2 U.S.C. § 431(8)(A)(i)). 

Case 1:14-cv-01500-CKK Document 19 Filed 09/19/14 Page 10 of 42
4

Following Buckley, Congress amended the Act to provide that an “independent 

expenditure” is “an expenditure by a person . . . expressly advocating the election or defeat of a 

clearly identified candidate” and not made by or in coordination with a candidate or political 

party. See Federal Election Campaign Act Amendments of 1976, Pub. L. No. 94-283, 

§ 102(g)(3), 90 Stat. 475, 479 (1976) (codified at 52 U.S.C. § 30101(17) (2 U.S.C. § 431(17)). 

The Act requires that all independent expenditures above $250 be timely reported to the 

Commission for disclosure to the public. 52 U.S.C. § 30104(c)(1) (2 U.S.C. § 434(c)(1)). 

The separate FECA provision prohibiting corporations and labor organizations generally 

from making independent expenditures using their general treasury funds, 52 U.S.C. § 30118 (2 

U.S.C. § 441b), was not at issue and not struck down in Buckley.

4

Following the Supreme Court’s narrowing construction of independent “expenditure,” 

corporations and unions generally could use their general treasury funds to finance independent 

communications that discussed candidates as long as they stopped short of express advocacy. By 

the end of the 1990s, groups had begun to spend millions of dollars on ads that avoided words of 

express advocacy but, under the guise of advocating for or against an issue, in essence urged the 

election or defeat of federal candidates. See McConnell v. FEC, 540 U.S. 93, 126-128 (2003). 

Congress determined that because the express advocacy standard was easy to evade, corporations 

and labor unions were able “to fund broadcast advertisements designed to influence federal 

elections . . . while concealing their identities from the public.” Id. at 196-97. 

 

4

 In FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. 238 (1986) (“MCFL”), the 

Supreme Court held that incorporated advocacy organizations possessing certain characteristics 

cannot constitutionally be barred from using general treasury funds to make independent 

expenditures. This holding applied to corporations that were formed for the sole purpose of 

promoting political ideas, that did not engage in business activities, and that did not accept 

contributions from for-profit corporations or unions. Id. at 263-64. 

Case 1:14-cv-01500-CKK Document 19 Filed 09/19/14 Page 11 of 42
5

To address this and other developments in federal campaign finance, Congress enacted 

the Bipartisan Campaign Reform Act (“BCRA”) in 2002, which, inter alia, imposed new 

financing restrictions and disclosure requirements for ECs. BCRA §§ 201-204, 116 Stat. 88-90, 

52 U.S.C. §§ 30104(f)(1)-(2), 30118(a), (b)(2) (2 U.S.C. §§ 434(f)(1)-(2), 441b(a), (b)(2)); see 

also McConnell, 540 U.S. at 126. 

Under BCRA, an “electioneering communication” is any broadcast, cable, or satellite 

communication that refers to a clearly identified candidate for federal office, is publicly 

distributed within 60 days before a general election or 30 days before a primary election, and is 

targeted to the relevant electorate. 52 U.S.C. § 30104(f)(3)(A) (2 U.S.C. § 434(f)(3)(A)); 11 

C.F.R. § 100.29(a)(2). BCRA prohibited the financing of electioneering communications with 

corporate or union general treasury funds. 52 U.S.C. §§ 30104(f)(3)(A)(i), 30118(a), (b)(2) 

(2 U.S.C. §§ 434(f)(3)(A)(i), 441b(a), (b)(2)). 

Congress also required certain disclosures concerning the sources and financing of 

permitted electioneering communications. The reporting requirements at issue in this case 

provide that any “person” (defined to include any corporation, labor organization, or other group, 

52 U.S.C. § 30101(11) (2 U.S.C. § 431(11))) that spends over $10,000 to produce or air an 

electioneering communication must file a statement with the Commission. 52 U.S.C. 

§ 30104(f)(1), (2)(A) (2 U.S.C. § 434(f)(1), (2)(A)). The statement must identify, in relevant 

part, the person making the EC disbursement and the amount and date of the disbursement. 

BCRA provides two options for disclosing the required information about the funds used to 

finance electioneering communications: 

(E) If the disbursements were paid out of a segregated bank account which consists of 

funds contributed solely by individuals who are United States citizens or nationals or 

lawfully admitted for permanent residence . . . directly to this account for electioneering 

communications, [the Act requires disclosure of] the names and addresses of all 

Case 1:14-cv-01500-CKK Document 19 Filed 09/19/14 Page 12 of 42
6

contributors who contributed an aggregate amount of $1,000 or more to that account 

during the period beginning on the first day of the preceding calendar year and ending on 

the disclosure date. . . . 

(F) If the disbursements were paid out of funds not described in subparagraph (E), [the 

Act requires disclosure of] the names and addresses of all contributors who contributed 

an aggregate amount of $1,000 or more to the person making the disbursement during the 

period beginning on the first day of the preceding calendar year and ending on the 

disclosure date. 

52 U.S.C. § 30104(f)(2)(E)-(F) (2 U.S.C. § 434(f)(2)(E)-(F)). 

As explained below, after the Supreme Court held in FEC v. Wisconsin Right to Life, Inc., 

551 U.S. 449 (2007) (“WRTL”), that corporations and unions have a constitutional right to make 

certain types of electioneering communications (i.e., those that do not contain express advocacy 

or its “functional equivalent”), the Commission promulgated regulations to address the reporting 

requirements related to such newly permitted corporate- or union-financed ECs. See infra pp. 7-

8. 

B. The Supreme Court Resolved Facial and As-Applied Constitutional 

Challenges to BCRA’s EC Provisions in McConnell, WRTL, and Citizens 

United

When BCRA’s electioneering communication amendments were challenged as facially 

unconstitutional, the Supreme Court initially upheld the scope of the statutory definition of 

“electioneering communication” at 52 U.S.C. § 30104(f)(3)(A)(i) (2 U.S.C. § 434(f)(3)(A)(i)), as 

well as both the disclosure provision at 52 U.S.C. § 30104(f) (2 U.S.C. §§ 434(f)), and the 

spending prohibitions at 52 U.S.C. §§ 30118 and 30120 (2 U.S.C. §§ 441b and 441d). See 

McConnell, 540 U.S. at 194, 201-02, 207-08. In upholding the EC definition, which was not 

limited to “communications expressly advocating the election or defeat of particular candidates,” 

the Court rejected the notion that Buckley established a “constitutionally mandated line” between 

express candidate advocacy and issue advocacy. Id. 189-90 (explaining that Buckley’s “express 

Case 1:14-cv-01500-CKK Document 19 Filed 09/19/14 Page 13 of 42
7

advocacy restriction was an endpoint of statutory interpretation, not a first principle of 

constitutional law”). It further observed that unlike FECA’s definition of “expenditure,” 

BCRA’s EC definition did not raise any vagueness concerns; on the contrary, its elements “are 

both easily understood and objectively determinable.” Id. at 194.

As to the EC disclosure requirements, the Court explained that such requirements are 

constitutional because they serve the important governmental interests of “providing the 

electorate with information, deterring actual corruption and avoiding any appearance thereof, and 

gathering the data necessary to enforce more substantive electioneering restrictions,” and “do not 

prevent anyone from speaking.” Id. at 196, 201 (internal quotation marks omitted). 

Four years after McConnell, in WRTL, the Supreme Court considered an as-applied 

challenge to BCRA’s prohibition on the financing of ECs with corporate and union treasury 

funds and partially invalidated it. The controlling opinion held BCRA’s ban unconstitutional as 

applied to a corporation’s advertisements that did not constitute express advocacy or “the 

functional equivalent of express advocacy.” 551 U.S. at 476, 478-79.5

 A communication is the 

“functional equivalent of express advocacy,” the controlling opinion explained, only if it “is 

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

candidate.” Id. at 469-70. The Court in WRTL did not address BCRA’s EC disclosure 

provisions. 

 After the decision in WRTL, the Commission promulgated regulations, inter alia, to 

account for the new category of permissible electioneering communications financed with 

corporate or union treasury funds. The rules provide that when a corporation finances an EC, the 

 

5

 Before WRTL, only corporations that qualified under the criteria established by the 

Supreme Court in MCFL could make electioneering communications, see supra note 4, but 

WRTL permitted all corporations and unions to make electioneering communications that did not 

contain express advocacy or its functional equivalent. See 551 U.S. at 480-81. 

Case 1:14-cv-01500-CKK Document 19 Filed 09/19/14 Page 14 of 42
8

corporation must also report “the name and address of each person who made a donation 

aggregating $1,000 or more to the corporation . . . for the purpose of furthering electioneering 

communications.” 11 C.F.R. § 104.20(c)(9).6 If the disbursement is made out of a “segregated 

bank account established to pay for electioneering communications,” however, the corporation 

making the EC need only identify those individuals who contributed $1,000 or more to the 

account itself. 11 C.F.R. § 104.20(c)(7)(ii). 

In 2010, the Supreme Court in Citizens United revisited the constitutionality of 

prohibitions on using corporate and union general treasury funds to finance independent 

expenditures and electioneering communications, as well as the Act’s disclosure requirements 

for electioneering communications. Citizens United, a nonprofit corporation, sought to distribute 

a film about then-Senator Hillary Clinton, who at the time was a candidate in the Democratic 

Party’s 2008 Presidential primary elections. 558 U.S. at 319-20. Citizens United also sought to 

distribute several ads promoting the film. Id. at 320. 

The Court found that Citizens United’s movie was “in essence, . . . a feature-length 

negative advertisement that urges viewers to vote against Senator Clinton for President.” Id. at 

325. Applying WRTL’s “objective” “functional-equivalent test,” the Court concluded that “there 

[was] no reasonable interpretation of [the movie] other than as an appeal to vote against Senator 

Clinton,” and it was accordingly subject to the challenged financing prohibitions. Id. at 326. 

 

6

 Although plaintiff correctly notes (Compl. ¶¶ 55, 124) that this regulation has been 

challenged in a separate, ongoing litigation, the regulation remains valid, in force, and binding on 

the Commission. The Court of Appeals for the D.C. Circuit has found that “[t]he FEC’s 

promulgation of 11 C.F.R. § 104.20(c)(9) reflects an attempt by the agency to provide regulatory 

guidance under the BCRA following the partial invalidation of the speech prohibition imposed 

on corporations and labor unions in the context of ‘electioneering communications,’” and 

accordingly remanded the case to the district court for further consideration under the 

Administrative Procedure Act. Ctr. for Individual Freedom v. Van Hollen, 694 F.3d 108, 111 

(D.C. Cir. 2012) (per curiam).

Case 1:14-cv-01500-CKK Document 19 Filed 09/19/14 Page 15 of 42
9

The court then invalidated FECA’s prohibition on the use of corporate and union general 

treasury funds to finance independent expenditures, as well as BCRA’s similar prohibition on the 

use of such funds to finance electioneering communications. 558 U.S. at 365-66. 

In a portion of the opinion that eight Justices joined, however, the Court reaffirmed the 

part of McConnell that upheld BCRA’s electioneering communication disclosure requirements 

on their face, and further upheld those disclosure requirements as applied to both Citizens 

United’s movie and its proposed “commercial advertisements” that “only attempt[ed] to 

persuade viewers to see the film” and that contained no advocacy. 558 U.S. at 366-71; see 

Citizens United v. FEC, 530 F. Supp. 2d 274, 280 (D.D.C. 2008) (explaining that Citizens 

United’s proposed ads “did not advocate Senator Clinton’s election or defeat; instead they 

proposed a commercial transaction — buy the DVD of The Movie”). Even though the “ads only 

pertain[ed] to a commercial transaction,” the Supreme Court held that “the public has an interest 

in knowing who is speaking about a candidate shortly before an election” and the government’s 

“informational interest alone” was a sufficient basis for upholding the constitutionality of the EC 

disclosure provision as applied to the promotional ads. Citizens United, 558 U.S. at 369. 

In reaffirming the constitutionality of the EC disclosure provision, the Supreme Court 

reiterated the caveat, which it had noted in Buckley and again in McConnell, that “as-applied 

challenges [to facially valid disclosure provisions] would be available if a group could show a 

reasonable probability that disclosure of its contributors’ names will subject them to threats, 

harassment, or reprisals from either Government officials or private parties.” Id. at 367 (citing 

McConnell, 540 U.S. at 198; Buckley, 424 U.S. at 74) (internal quotation marks omitted). 

Case 1:14-cv-01500-CKK Document 19 Filed 09/19/14 Page 16 of 42
10

II. PLAINTIFF’S CLAIMS 

According to the complaint, plaintiff Independence Institute is a Colorado nonprofit 

corporation established in 1985 that is organized and claiming exemption from income taxes 

under 26 U.S.C. §§ 501(c)(3), 170(b)(1)(A)(vi) and Colorado Revenue Statute §§ 6-16-103(1), 7-

21-101. (Compl. ¶¶ 2, 14.) Plaintiff alleges that it “conducts research and educates the public on 

various aspects of public policy [and] . . . its educational endeavors include advertisements that 

mention” officeholders, who are sometimes “candidates for office” and who direct public 

policies. (Id. ¶ 2.) Plaintiff has elected treatment under section 501(h) of the Internal Revenue 

Code, enabling it to spend a portion of its budget on lobbying. (Id. ¶¶ 27-28.)

Plaintiff alleges that it wishes to finance and publicly distribute a radio advertisement that 

will clearly mention Colorado Senator Mark Udall, a candidate in the November 2014 general 

election, within 60 days of that election. (Id. ¶¶ 30-32.) Plaintiff alleges that it intends to spend 

more than $10,000 on the advertisement, which will reach more than 50,000 listeners in the 

Denver metropolitan area, i.e. the advertisement will air in the jurisdiction in which Senator 

Udall is seeking reelection. (Id. ¶¶ 33-34; see also Pl.’s Mem. at 2-3.) According to the 

Complaint, the proposed advertisement will read as follows: 

Let the punishment fit the crime. 

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

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

drive up the debt. 

And for what purpose? 

Studies show that these laws don’t cut crime. 

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

violent felons. 

Case 1:14-cv-01500-CKK Document 19 Filed 09/19/14 Page 17 of 42
11

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

Valve Act, bill number S. 619. 

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

others from committing crimes. 

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

support S. 619, the Justice Safety Valve Act. 

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

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

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

this advertising. 

(Compl. ¶ 35.) 

Plaintiff alleges that it wishes to solicit contributions of over $1,000 from individual 

donors, independent of its general fundraising efforts for other programs, to broadcast this 

advertisement before the November 2014 election in which Senator Udall is participating (id.

¶¶ 36-37) and that it “does not wish to disclose and report its donors” (Pl.’s Mem. at 4). 

Plaintiff’s complaint seeks declaratory and injunctive relief regarding the scope of 

BCRA’s definition of “electioneering communication” and the disclosure requirements attendant 

to communications that meet that definition. (Compl. Prayer for Relief A-B.) Plaintiff alleges 

that its proposed advertisement “is genuine issue speech” and argues that the statutory definition 

of “electioneering communication” is unconstitutionally overbroad because it is not limited to 

communications containing “an appeal to vote for or against a specific candidate.” (Id. ¶¶ 113, 

116.) Plaintiff further argues that the EC disclosure requirements cannot constitutionally be 

applied to its proposed advertisement based on its contention that for groups that “do not have 

‘the major purpose of political activity, . . . only communications that ‘expressly advocate the 

election or defeat of a clearly identified candidate’ are subject to disclosure.” (Id. ¶ 122 (quoting 

Buckley, 424 U.S. at 80).) 

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III. PROCEDURAL HISTORY 

On September 4, 2014, plaintiff filed its Motion for a Preliminary Injunction (Docket No. 

5). On September 10, following the parties’ telephonic status conference with the Court two 

days earlier, the parties filed a Joint Stipulation of the Parties and Order of the Court as to the 

Scope of Plaintiff’s Allegations and Claims (“Joint Stipulation and Order”), which the Court 

entered as an Order on the same day. (Joint Stipulation and Order (Docket No. 14).) The Joint 

Stipulation and Order establishes that plaintiff “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 as a result of 

plaintiff’s compliance with [the EC reporting requirements].” (Id. at 1.) It further memoralizes 

the parties’ agreement, and the Court’s order, that the Court’s consideration of plaintiff’s 

Preliminary Injunction Motion will be consolidated with resolution of the merits of this case. 

(Id.) 

ARGUMENT 

I. STANDARD OF REVIEW 

In the Joint Stipulation and Order, the parties agreed, and the Court ordered, that 

Plaintiff’s Motion for Preliminary Injunction shall be considered as a motion for summary 

judgment.7

 The question before the Court, therefore, is whether either party is entitled to 

judgment as a matter of law upon material facts that are not genuinely disputed. Am. Fed’n of 

Gov’t Emps, Local 446 v. Nicholson, 475 F.3d 341, 342 (D.C. Cir. 2007); GCI Health Care 

Ctrs., Inc. v. Thompson, 209 F. Supp. 2d 63, 67 (D.D.C. 2002); Fed. R. Civ. P. 56. Because the 

 

7

 For that reason, the Commission is not addressing the preliminary injunction factors that 

are relevant only to determining whether a plaintiff is entitled to temporary relief — i.e.

irreparable harm, the balance of interests, and the public interest. These factors are not relevant 

to this Court’s final resolution of the merits of this case. 

Case 1:14-cv-01500-CKK Document 19 Filed 09/19/14 Page 19 of 42
13

parties have agreed to consolidate Plaintiff’s Motion for Preliminary Injunction with a resolution 

of the merits, “disposition of the preliminary injunction motion will end this case.” Morris v. 

Dist. of Columbia, No. 14-0338 (RC), 2014 WL 1648293, at *2 n.1 (D.D.C. Apr. 25, 2014); see 

Curtis 1000, Inc. v. Suess, 24 F.3d 941, 945 (7th Cir. 1994) (“The general point is that when the 

eventual outcome on the merits is plain at the preliminary injunction stage, the judge should, 

after due notice to the parties, merge the stages and enter a final judgment.”). 

II. AS THE SUPREME COURT HAS HELD, THE EC DISCLOSURE PROVISIONS 

ARE CONSTITUTIONAL 

A. The Challenged EC Provisions Are Subject to Intermediate Scrutiny 

Plaintiff challenges the disclosure requirements for ECs set forth in 52 U.S.C. 

§ 30104(f)(1)-(2) (2 U.S.C. § 434(f)(1)-(2)) and the statutory definition of “electioneering 

communication” in 52 U.S.C. § 30104(f)(3)(A)(i) (2 U.S.C. § 434(f)(3)(A)(i)), which determines 

the scope of communications subject to those requirements. (Compl. Prayer for Relief A-B.) 

 The Supreme Court has repeatedly held that disclosure provisions “‘impose no ceiling on 

campaign-related activities,’ and ‘do not prevent anyone from speaking.’” Citizens United, 558 

U.S. at 366 (quoting Buckley, 424 U.S. at 64; McConnell, 540 U.S. at 201). The en banc Court 

of Appeals for the D.C. Circuit has recognized the same. SpeechNow.org v. FEC, 599 F.3d 686, 

696 (D.C. Cir. 2010) (en banc). Thus, and as plaintiff acknowledges (Pl.’s Mem. at 8), “First 

Amendment challenges to disclosure requirements in the electoral context . . . [are] reviewed . . . 

under what has been termed ‘exacting scrutiny.’” Doe v. Reed, 561 U.S. 186, 196 (2010) 

(collecting cases). “That standard ‘requires a ‘substantial relation’ between the disclosure 

requirement and a ‘sufficiently important’ governmental interest.” Id. (quoting Citizens United, 

558 U.S. at 366-67). 

Case 1:14-cv-01500-CKK Document 19 Filed 09/19/14 Page 20 of 42
14

The “Supreme Court has not limited the government’s acceptable interests” in the 

disclosure context; “the government may point to any ‘sufficiently important’ governmental 

interest that bears a ‘substantial relation’ to the disclosure requirement.” SpeechNow, 599 F.3d 

at 696 (quoting Citizens United, 558 U.S. at 366). The Supreme Court “has approvingly noted 

that ‘disclosure is a less restrictive alternative to more comprehensive regulations of speech.’” 

Id. (quoting Citizens United, 558 U.S. at 369). 

As the Court of Appeals for the D.C. Circuit recognized in SpeechNow, “[t]he Supreme 

Court has consistently upheld . . . reporting requirements against facial challenges.” Id. at 696-

97 (discussing Buckley, McConnell, and Citizens United, and distinguishing Davis v. FEC, 554 

U.S. 724 (2008)). In particular, the Supreme Court has specifically upheld the EC disclosure 

requirements challenged here based on the government’s “sufficiently important” interest in 

“providing the electorate with information.” Citizens United, 558 U.S. at 366-67; McConnell, 

540 U.S. at 196; see also SpeechNow, 599 F.3d at 696 (discussing McConnell and Citizens 

United). In Citizens United, moreover, the Court held that the EC disclosure requirements are 

constitutional as applied to an advertisement that “only attempt[ed] to persuade viewers to see [a] 

film” because “[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.” 558 U.S. at 

369. The Court expressly refused to limit the permissible scope of EC disclosure requirements to 

communications that are equivalent to express candidate advocacy. Id.

B. BCRA’s Definition of “Electioneering Communication” is Clear, Objective, 

and Constitutional 

In McConnell, the first time the Court had an occasion to review the constitutionality of 

BCRA, the Court acknowledged that whereas FECA had “limited the coverage of [its] disclosure 

requirement to communications expressly advocating the election or defeat of particular 

Case 1:14-cv-01500-CKK Document 19 Filed 09/19/14 Page 21 of 42
15

candidates,” BCRA’s definition of “‘electioneering communication’ is not so limited.” 540 U.S. 

at 189. The Court held that Buckley did not establish a “constitutionally mandated line” between 

express candidate advocacy and issue advocacy and that Buckley’s “express advocacy restriction 

was an endpoint of statutory interpretation, not a first principle of constitutional law.” Id. at 190. 

The Court found that BCRA’s EC definition did not raise any of the vagueness concerns that had 

led the Buckley Court to create its “express advocacy” construction of the otherwise vague 

statutory definition of “expenditure.” Id. at 194. The Court concluded that because the elements 

of the EC definition “are both easily understood and objectively determinable . . . the 

constitutional objection that persuaded the Court in Buckley to limit FECA’s reach to express 

advocacy is simply inapposite” in evaluating the constitutional scope of BCRA’s definition of 

electioneering communications. Id. (citation omitted). 

Moreover, in the specific context of the statutory disclosure requirements for 

electioneering communications, McConnell held that “Buckley amply supports application of 

[those] disclosure requirements to the entire range of ‘electioneering communications.’” Id. at 

196 (emphasis added). That portion of the decision was joined by eight Justices and belies 

plaintiff’s suggestion (Pl.’s Mem. at 5) that the Court in McConnell upheld the disclosure portion 

of the EC “regime” only “insofar as the regulated advertisements contain express advocacy or its 

functional equivalent.”8 Instead, the Court concluded that requiring disclosure for all

electioneering communications serves “the competing First Amendment interests of individual 

 

8

 Plaintiff misleadingly quotes (Pl.’s Mem. at 12) language from McConnell’s discussion 

of the provision that prohibited corporations and unions from financing any ECs with their 

general treasury funds as purported support for its erroneous claim that the Court in McConnell

intended to exclude “genuine issue ads” from the scope of BCRA’s EC disclosure requirement. 

The relevant part of the McConnell opinion (addressing disclosure) explicitly contradicts that 

claim. See McConnell, 540 U.S. at 194, 196 (explaining that the Court “ha[s] rejected the notion 

that the First Amendment requires Congress to treat so-called issue advocacy differently from 

express advocacy”). 

Case 1:14-cv-01500-CKK Document 19 Filed 09/19/14 Page 22 of 42
16

citizens seeking to make informed choices in the political marketplace.” McConnell, 540 U.S. at 

196-97 (internal quotation marks and citation omitted). In contrast, allowing plaintiff to 

distribute, during the period shortly before a federal election, a broadcast advertisement that 

refers to a federal candidate “while concealing” the sources of financing of that advertisement 

from the public “does not reinforce” plaintiff’s First Amendment rights, but would compromise 

“the competing First Amendment interests” of the electorate. Id. at 197, 201 (internal quotation 

marks and citation omitted).9

 

More recently, eight Justices in Citizens United again agreed that the full scope of 

BCRA’s EC definition was constitutional in the disclosure context (i.e., the only context in 

which ECs remain subject to regulation) and need not be limited based on the absence of 

candidate advocacy from of a particular communication. 558 U.S. at 320-21 (summarizing 

BCRA’s EC definition); id. at 368-69 (“reject[ing] th[e] contention” that EC disclosure 

requirements “must be confined to speech that is the functional equivalent of express advocacy”). 

 

9

 For example, plaintiff’s compliance with the EC disclosure requirements could help the 

public evaluate the Independence Institute’s advertisement. There has been public interest in 

plaintiff’s funding even outside the electioneering context, confirming that the public uses 

funding sources to evaluate the messages it receives. See Frank Smyth, The Times Has Finally 

(Quietly) Outed an NRA-Funded “Independent” Scholar, The Progressive, (Apr. 23, 2014), 

http://www.progressive.org/news/2014/04/187663/times-has-finally-quietly-outed-nra-funded-

%E2%80%9Cindependent%E2%80%9D-scholar (last visited Sept. 19, 2014) (questioning the 

independence of an Independence Institute scholar who has “establish[ed] himself as an 

independent authority on gun policy issues,” including by testifying before Congress and writing 

opinion pieces for the Wall Street Journal, “even though he and his Independence Institute have 

received over $1.42 million including about $175,000 a year over eight years from the NRA”); 

Eli Stokols, NRA Money Behind Lawsuit Challenging New Colo. Gun Control Laws, Fox31 

Denver (May, 29, 2013, 9:56 p.m.), http://kdvr.com/2013/05/29/nra-money-behind-lawsuitchallenging-new-colo-gun-control-laws/ (last visited Sept. 19, 2014) (describing a large 

“fundraiser organized by the Independence Institute in support of its lawsuit challenging 

[Colorado’s] new gun control laws” and noting that “the lawsuit . . . is mostly being funded not 

by grassroots donations but by the biggest Second Amendment rights group in the world[, t]he 

National Rifle Association”). 

Case 1:14-cv-01500-CKK Document 19 Filed 09/19/14 Page 23 of 42
17

McConnell and Citizens United highlight the fundamental flaw in plaintiff’s central 

argument in this case (Pl.’s Mem. at 4), i.e., the argument that disclosure requirements cannot 

constitutionally be applied to speech that lacks express candidate advocacy. The McConnell

Court explicitly “rejected the notion that the First Amendment requires Congress to treat socalled issue advocacy differently from express advocacy.” 540 U.S. at 194. The Court in 

Citizens United similarly rejected a request to “import” into the context of EC disclosure 

requirements the distinction between express advocacy (and its function equivalent), on the one 

hand, and issue advocacy, on the other. 558 U.S. at 368. 

Moreover, in the few years since the Court decided Citizens United, a number of the 

federal Courts of Appeals have embraced Citizens United in concluding that Buckley’s 

distinction between express candidate advocacy and issue advocacy does not apply in the context 

of campaign-finance disclosure requirements. See, e.g., Wisconsin Right to Life, Inc. v. Barland, 

751 F.3d 804, 819 (7th Cir. 2014) (discussing the Supreme Court’s explanation in McConnell

“that the express-advocacy line drawn in Buckley was ‘an endpoint of statutory interpretation, not 

a first principle of constitutional law’” (quoting McConnell, 540 U.S. at 190)); Free Speech v. 

FEC, 720 F.3d 788, 795-96, 798 (10th Cir. 2013) (explaining that in Citizens United, “in 

addressing the permissible scope of disclosure requirements, the Supreme Court not only rejected 

the ‘magic words’ standard urged by Plaintiff but also found that disclosure requirements could 

extend beyond speech that is the ‘functional equivalent of express advocacy’ to address even ads 

that ‘only pertain to a commercial transaction’” (citation omitted)), cert. denied, 134 S. Ct. 2288 

(2014); Real Truth About Abortion v. FEC, 681 F. 3d 551-52 (4th Cir. 2012) (citing Citizens 

United’s holding that “mandatory disclosure requirements are constitutionally permissible even if 

ads contain no direct candidate advocacy and ‘only pertain to a commercial transaction’” 

Case 1:14-cv-01500-CKK Document 19 Filed 09/19/14 Page 24 of 42
18

(quoting Citizens United, 558 U.S. at 369)); Ctr. for Individual Freedom v. Madigan, 697 F.3d 

464, 484 (7th Cir. 2012) (“Whatever the status of the express advocacy/issue discussion 

distinction may be in other areas of campaign finance law, Citizens United left no doubt that 

disclosure requirements need not hew to it to survive First Amendment scrutiny.”); Nat’l Org. for 

Marriage v. McKee, 649 F.3d 34, 55 (1st Cir. 2011) (citing Citizens United for the proposition 

that “the distinction between issue discussion and express advocacy has no place in First 

Amendment review of . . . disclosure-oriented laws”); Human Life of Wash. Inc. v. Brumsickle, 

624 F.3d 990, 1016 (9th Cir. 2010) (concluding, in light of Citizens United, that “the position 

that disclosure requirements cannot constitutionally reach issue advocacy is unsupportable”). 

Plaintiff’s assertion (Compl. ¶ 113) that BCRA’s definition of “electioneering 

communication” is overbroad to the extent that it imposes disclosure obligations on an 

“advertisement [that] is not ‘an appeal to vote for or against a specific candidate”’ conflicts 

directly with the Supreme Court’s holdings to the contrary in McConnell and Citizens United, 

and simply ignores the Court’s clarification that Buckley did not establish a “constitutionally 

mandated line” between express candidate advocacy and issue advocacy. McConnell, 540 U.S.

at 190. Count 1 of plaintiff’s complaint is thus foreclosed by those decisions and accordingly 

should be dismissed. 

C. BCRA’s EC Disclosure Requirements Are Constitutional, Including As 

Applied to Plaintiff’s Proposed Advertisement 

1. The EC Disclosure Requirements Are Substantially Related to the 

Government’s “Sufficiently Important” Informational Interest 

In addition to rejecting “the failed argument” that BCRA’s definition of “electioneering 

communication” “improperly extends to both express and issue advocacy,” the Supreme Court in 

McConnell upheld the EC disclosure requirements that plaintiff likewise seeks to relitigate here. 

Case 1:14-cv-01500-CKK Document 19 Filed 09/19/14 Page 25 of 42
19

McConnell, 540 U.S. at 195. The Court concluded that “the important state interests that 

prompted the Buckley Court to uphold FECA’s disclosure requirements,” including “providing 

the electorate with information,” apply in full to BCRA.” Id. at 196. BCRA’s requirement of 

disclosure for “the entire range of ‘electioneering communications’” is accordingly 

constitutional. Id. (emphasis added). 

 Whereas McConnell upheld the EC disclosure requirements on their face, Citizens 

United considered the requirements in a context directly analogous to the circumstances 

presented in plaintiff’s complaint. Like plaintiff here, “Citizens United is a nonprofit 

corporation.” Citizens United, 558 U.S. at 319. And like the advertisement Independence 

Institute wishes to finance and distribute, the ads at issue in Citizens United mentioned the name 

of a federal candidate — then-Senator Hillary Clinton — but “did not advocate Senator Clinton’s 

election or defeat.” Citizens United, 530 F. Supp. 2d at 280; see id. at 276 nn. 2-4 (quoting 

scripts of Citizens United’s proposed ads). The Court acknowledged that Citizens United’s 

proposed ads “only attempt[ed] to persuade viewers to see the film” about Senator Clinton, but 

found that this was not a basis for invalidating the EC disclosure requirements as applied to that 

nonprofit organization. Citizens United, 558 U.S. at 369. “Even 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.” Id. The Court held that the government’s “informational interest 

alone is sufficient” to uphold the EC disclosure requirements as applied to Citizens United’s 

proposed commercial advertisements. 

The government’s interest in ensuring that the public can know who is speaking about a 

candidate for United States Senate shortly before an election in an ad discussing a piece of 

proposed legislation, like plaintiff’s proposed ad, is at least as “sufficiently important” as its 

Case 1:14-cv-01500-CKK Document 19 Filed 09/19/14 Page 26 of 42
20

interest in ensuring the public can know who is speaking about a candidate in an ad that “only 

pertain[s] to a commercial transaction.” Citizens United, 558 U.S. at 369. Likewise, if 

disclosure of a commercial ad that “only attempt[ed] to persuade viewers to see [a] film” about a 

candidate was substantially related to the government’s informational interest in Citizens United, 

id., then disclosure of plaintiff’s proposed ad must also be substantially related to the 

government’s informational interest here. See Hispanic Leadership Fund, Inc. v. FEC, 897 F. 

Supp. 2d 407, 429-32 (E.D. Va. 2012) (explaining that “Citizens United ‘upheld BCRA’s 

disclosure requirements for all electioneering communications — including those that are not the 

functional equivalent of express advocacy,’” and concluding that certain communications 

discussing energy policy and the Affordable Care Act are subject to federal disclosure 

requirements for ECs (citing Citizens United, 558 U.S. at 366-67; quoting Real Truth, 681 F.3d 

at 551)). 

In any event, not only do Citizens United and McConnell clearly and directly establish the 

constitutionality of the EC disclosure requirements as applied to plaintiff’s proposed ads, those 

decisions are consistent with the Supreme Court’s earlier decisions finding that the government’s 

informational interest is sufficient to justify mandatory disclosure relating to two different forms 

of “pure” issue advocacy. First, the informational interest has been recognized extensively in the 

context of issue advocacy regarding ballot initiatives. See, e.g., Buckley v. Am. Constitutional 

Law Found., Inc., 525 U.S. 182, 204 (1999) (upholding requirement to disclose donations made 

to organizations to pay ballot-initiative petition circulators); First Nat’l Bank of Boston v. Bellotti, 

435 U.S. 765, 792 n.32 (1978) (“Identification of the source of advertising may be required as a 

means of disclosure . . . .”); see also Brumsickle, 624 F.3d at 1016 (“Given the Court’s analysis 

in Citizens United, and its holding that the government may impose disclosure requirements on 

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21

speech, the position that disclosure requirements cannot constitutionally reach issue advocacy is 

unsupportable.”). This is particularly noteworthy here because the Supreme Court has held that 

ballot-initiative activity is inherently issue-focused and does not have the same corruptive 

potential as spending to influence candidate elections. Bellotti, 435 U.S. at 790 (“The risk of 

corruption perceived in cases involving candidate elections simply is not present in a popular 

vote on a public issue.” (footnote and citations omitted)); McIntyre v. Ohio Elections Comm’n, 

514 U.S. 334, 353 n.15 (1995) (quoting Bellotti). These cases further undermine plaintiff’s 

claim that the government lacks a sufficiently important interest in requiring the disclosure of 

“issue advocacy”: The government’s legitimate disclosure interest necessarily extends to issue 

speech “so that the people will be able to evaluate the arguments to which they are being 

subjected.” Bellotti, 435 U.S. at 792 n.32; see supra note 9. 

Second, courts are nearly unanimous in upholding mandatory disclosure of lobbying 

expenditures on the basis of the government’s interest in informing the public as to who is 

attempting to sway the resolution of public issues and how they are attempting to do so. See, 

e.g., United States v. Harriss, 347 U.S. 612, 625 (1954) (“[F]ull realization of the American ideal 

of government by elected representatives depends to no small extent on their ability to properly 

evaluate such pressures.”); Nat’l Ass’n of Mfrs. v. Taylor, 582 F.3d 1, 6 (D.C. Cir. 2009) 

(rejecting a “constitutional challenge to Congress’ latest effort to ensure greater transparency . . . 

[b]ecause nothing has transpired [since the Supreme Court decided Harriss] to suggest that the 

national interest in public disclosure of lobbying information is any less vital than it was when 

the Supreme Court first considered the issue”); Fla. League of Prof’l Lobbyists, Inc. v. Meggs, 87 

F.3d 457, 460 (11th Cir. 1996) (upholding state lobbyist disclosure statutes in light of state 

interest in helping citizens “apprais[e] the integrity and performance of officeholders and 

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22

candidates, in view of the pressures they face”); Minn. State Ethical Practices Bd. v. Nat’l Rifle 

Ass’n of Am., 761 F.2d 509, 512 (8th Cir. 1985) (per curiam) (quoting Harriss).10 Lobbying, like 

issue advocacy, typically does not involve candidate campaigns; it is issue-oriented political 

activity protected by the First Amendment. Thus, these cases make clear that the government’s 

interest in providing information to the public extends beyond speech about candidate elections 

and encompasses activity that attempts to sway public opinion on issues, just as plaintiff claims it 

wishes to do here. 

2. All of Plaintiff’s Attempts to Minimize, Distinguish, or Disregard Citizens 

United Lack Merit 

In apparent recognition that Citizens United directly and completely forecloses all of 

plaintiff’s constitutional arguments, plaintiff alternatively attempts to minimize the significance 

of the Supreme Court’s eight-Justice holding on the constitutionality of disclosure for ECs 

without candidate advocacy — including by characterizing that part of the decision as “terse” 

and “dicta” (Pl.’s Mem. at 5, 14) — or to distinguish that holding based on inaccurate 

characterizations of the advertisements at issue in Citizens United and immaterial differences 

between Citizens United and plaintiff here (id. at 14-18). Based on such arguments, plaintiff 

contends that the Court need not apply Citizens United here, and should rely instead on general 

“principles” articulated in the Buckley v. Valeo Court of Appeals decision issued 27 years before 

the provisions plaintiff challenges were enacted. (Id. at 6, 18-20 (discussing Buckley, 519 F.2d 

 

10 See also Comm’n on Indep. Coll. & Univ. v. N.Y. Temp. State Comm’n on Regulation of 

Lobbying, 534 F. Supp. 489, 494-95 (N.D.N.Y. 1982) (“The lobby law serves to apprise the 

public of the sources of pressure on government officials, thus better enabling the public to 

access their performance.” (footnote omitted)); Am. Civil Liberties Union of N.J. v. N.J. Election 

Law Enforcement Comm’n, 509 F. Supp. 1123, 1129 (D. N.J. 1981) (“The voting public should 

be able to evaluate the performance of their elected officials in terms of representation of the 

electors’ interest in contradistinction to those interests represented by lobbyists.” (citation 

omitted)); Kimbell v. Hooper, 665 A.2d 44, 49 (Vt. 1995) (“Vermont’s lobbyist disclosure law is 

a reasonable means of evaluating the lobbyist’s influence on the political process.”). 

Case 1:14-cv-01500-CKK Document 19 Filed 09/19/14 Page 29 of 42
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821 (D.C. Cir. 1975) (per curiam)). As explained below, none of these arguments has any merit. 

a. The Portion of Citizens United Upholding EC Disclosure 

Requirements as Applied to Communications Lacking Any 

Candidate Advocacy is a Constitutional Holding That is Binding 

on This Court 

Plaintiff appears to suggest that the Court should accord less deference to the portion of 

Citizens United that addresses the EC disclosure requirements because that part of the Court’s 

opinion is succinct. (Compl. ¶ 81 (acknowledging that the Court in Citizens United “specifically 

upheld BCRA’s disclosure and disclaimer requirements[] [b]ut ‘this part of the opinion is quite 

brief’”) (citing Citizens United, 558 U.S. at 372; quoting Barland, 751 F.3d at 824); Pl.’s Mem. 

at 5, 14 (characterizing portion of Citizens United upholding EC disclosure requirements as 

“brief,” “terse,” and “truncated”).) Setting aside the exaggerated tone of plaintiff’s 

characterizations, it is unremarkable that the portion of Citizens United addressing the 

electioneering disclosure requirements, which embraces, reaffirms, and applies well-settled law, 

is significantly shorter than other parts of the majority opinion, which reconsider and reverse the 

Court’s own precedent. More importantly, the Court’s ability to resolve a clear-cut 

constitutional challenge in the span of six pages plainly does not diminish the authoritative 

significance of a constitutional holding by the Supreme Court. 

Plaintiff’s alternative attempt to minimize the impact of Citizens United — declaring its 

disclosure holding to be “dicta” (Compl. ¶ 87 (quoting Barland, 751 F.3d at 836)) — is just as 

misguided. That interpretation of the Court’s constitutional analysis appears to be premised on 

plaintiff’s mistaken assertion that the advertisements at issue in Citizens United “were the 

‘functional equivalent of express advocacy.’” (Compl. ¶ 126; see id. ¶ 87.) They were not. The 

Supreme Court’s decision and the underlying district court decision both make clear that the 

advertisements at issue in Citizens United were “commercial advertisements” that “only 

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attempt[ed] to persuade viewers to see [a] film,” Citizens United, 558 U.S. at 368-69, and that 

“did not advocate Senator Clinton’s election or defeat,” Citizens United, 530 F. Supp. 2d at 280. 

Plaintiff’s own Memorandum makes this clear. (Pl.’s Mem. at 16 (describing one of Citizens 

United’s proposed ads, which mentioned Hillary Clinton by name but neither identified her as a 

candidate nor contained any language advocating her election or defeat).) Plaintiff offers no 

explanation of how an ad that merely “compliment[ed] Mrs. Clinton’s fashion sense” and 

referenced a film about “everything else” satisfies WRTL’s objective standard, which “define[s] 

the functional equivalence of express advocacy as a communication which is ‘susceptible of no 

reasonable interpretation other than as an appeal to vote for or against a specific candidate.’” (Id.

at 13, 16 (quoting WRTL, 551 U.S. at 469-70).) 

Further undermining plaintiff’s characterization of Citizens United’s ads is the fact that 

Citizens United itself argued that the EC disclosure requirements “must be confined to speech 

that is the functional equivalent of express advocacy.” Citizens United, 558 U.S. at 368. That 

argument would have been self-defeating if Citizens United’s ads met that standard. 

It is thus clear that the Supreme Court considered and “reject[ed] Citizens United’s 

contention that the disclosure requirements must be limited to speech that is the functional 

equivalent of express advocacy,” id. at 369, precisely because doing so was necessary to uphold 

the EC disclosure requirements as applied to Citizens United’s proposed ads, which were not the 

functional equivalent of express advocacy. Far from dicta, this part of the Court’s analysis was 

essential to its constitutional holding. Indeed, as noted below, numerous Courts of Appeals have 

thus relied on the Supreme Court’s controlling constitutional holding regarding the permissible 

scope of disclosure requirements in Citizens United to reject constitutional challenges to other 

federal and state disclosure requirements. See infra pp. 25-27 & nn. 11, 12. 

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b. Plaintiff’s Out-of-Circuit Authorities Confirm That Citizens United

Forecloses This Challenge 

Plaintiff purports to rely (Pl.’s Mem. at 14-15, 17) on decisions from the Courts of 

Appeals for the Fourth and Seventh Circuits, but both Real Truth and Barland confirm that 

Citizens United forecloses plaintiff’s claims. 

In Real Truth, the Court of Appeals for the Fourth Circuit held that the Commission’s 

regulatory definition of “express advocacy” is “constitutional, facially and as applied to Real 

Truth’s intended advertisements,” and “is consistent with the test developed in Wisconsin Right 

to Life and is not unduly vague.” 681 F.3d at 555. The Court of Appeals was addressing Real 

Truth’s claim that its proposed ads could “be construed as ‘independent expenditures . . . 

subjecting it to disclosure requirements and potentially making it a [political committee] subject 

to further regulation.” Id. at 547 (citing 52 U.S.C. § 30101(17) (2 U.S.C. § 431(17)) and 11 

C.F.R. § 100.22(b)) (emphasis added). As plaintiff here has explained (Compl. ¶ 43), 

independent expenditures, i.e. “communications that expressly advocate for or against a specific 

candidate — are not ‘electioneering communications.’” Thus, plaintiff’s characterization (Pl.’s 

Mem. at 17) of Real Truth as a case that “considered” ECs is mistaken. 

 To the extent the Fourth Circuit’s analysis in Real Truth has any relevance here, it 

directly supports the FEC’s argument that EC disclosure requirements are constitutional as 

“applied to ads that merely mention a federal candidate.” Id. at 552. The Court of Appeals 

explained that in Citizens United: 

The [Supreme] Court . . . upheld BCRA’s disclosure requirements for all 

electioneering communications — including those that are not the functional 

equivalent of express advocacy. [Citizens United, 130 S. Ct.] at 914-16 (“We 

reject Citizens United’s contention that the disclosure requirements must be 

limited to speech that is the functional equivalent of express advocacy”). In this 

portion of the opinion, joined by eight Justices, the Court explained that because 

disclosure “is a less restrictive alternative to more comprehensive regulations of 

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26

speech,” mandatory disclosure requirements are constitutionally permissible even 

if ads contain no direct candidate advocacy and “only pertain to a commercial 

transaction.” Id. at 915. If mandatory disclosure requirements are permissible 

when applied to ads that merely mention a federal candidate, then applying the 

same burden to ads that go further and are the functional equivalent of express 

advocacy cannot automatically be impermissible. 

Id. at 551-52 (footnote omitted).11 

The opinion of the Seventh Circuit Court of Appeals in Barland, which plaintiff chiefly 

relies on, (Pl.’s Mem. at iv), also confirms that Citizens United is dispositive of plaintiff’s claims 

here. In Barland, the court distinguished the Supreme Court’s analysis of BCRA’s EC 

disclosure requirements from the separate context of Wisconsin’s organizational and reporting 

requirements for state political committees. Barland, 751 F.3d at 836. The Seventh Circuit in 

Barland (unlike the Fourth Circuit in Real Truth and other Courts of Appeals in other cases, see 

supra pp. 25-26 & n.11) questioned the extent to which Citizens United’s holding regarding the 

permissible scope of disclosure requirements applies outside the context of the EC disclosure 

 

11 Other Courts of Appeals have similarly relied on the Supreme Court’s constitutional 

analysis of EC disclosure requirements in Citizens United to reject constitutional challenges to 

other federal and state disclosure requirements. See, e.g., SpeechNow, 599 F.3d at 696, 698 

(holding that FEC may constitutionally require SpeechNow to comply with political committee 

reporting and registration requirements, including requirement to disclose contributions made 

towards administrative expenses).; Free Speech, 720 F.3d at 795-96, 798 (explaining that in 

Citizens United, “the Supreme Court upheld federal disclaimer and disclosure requirements 

applicable to all ‘electioneering communications’” and relying on Citizens United in upholding 

the Commission’s regulatory definition of express advocacy, which helps determine the 

applicability of disclosure requirements for independent expenditures and organizations that 

qualify as federal political committees); Madigan, 697 F.3d at 484, 490 (explaining that Citizens 

United “explicitly rejected the plaintiff’s attempt to graft the express advocacy/issue discussion 

dichotomy onto the constitutional law of campaign finance disclosure” and upholding state 

provision requiring groups “whose major purpose is not electoral politics” to register and report 

as state political committees); Nat’l Org. for Marriage, Inc. v. Sec’y, State of Fla., 477 Fed. 

Appx. 584, 585 (11th Cir. May 17, 2012) (per curiam) (relying on portion of Citizens United

upholding EC disclosure requirements in rejecting facial and as-applied challenge to state 

disclosure laws); McKee, 649 F.3d at 52-61 (relying on Citizens United’s disclosure holding and 

upholding state-law definitions of and disclosure requirements for independent expenditures and 

political committees); Brumsickle, 624 F.3d at 1005-20 (same). 

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requirements at issue in Citizens United (and here). Id. But the Court fully accepted the 

applicability of that holding to federal ECs as defined and regulated in 52 U.S.C. § 30104(f) 

(2 U.S.C. § 434(f)). Id. The court explained that “Citizens United approved event-driven 

disclosure for federal electioneering communications — large broadcast ad buys close to an 

election” and acknowledged that the Supreme Court “declined to enforce Buckley’s expressadvocacy limitation” in that precise context. Id. (quoting Seventh Circuit’s earlier holding in 

Madigan, 697 F.3d at 484, that the “‘distinction between express advocacy and issue discussion 

does not apply in the disclosure context’” and stating that Citizens United “relax[ed] the expressadvocacy limitation” for “the onetime, event-driven disclosure rule for federal electioneering 

communications”).12 

 The Seventh Circuit in Barland may have questioned the extent to which Citizens 

United’s disclosure holding applies outside the context of the EC disclosure requirements at 

issue in Citizens United and this case, but no court has embraced plaintiff’s interpretation that the 

holding does not apply to the precise context in which it was articulated by eight Justices of the 

Supreme Court. 

 

12 In Madigan, another panel of the Seventh Circuit Court of Appeals held more broadly, in 

the context of a constitutional challenge to various state campaign-finance disclosure 

requirements, that “[w]hatever the status of the express advocacy/issue discussion distinction 

may be in other areas of campaign finance law, Citizens United left no doubt that disclosure 

requirements need not hew to it to survive First Amendment scrutiny.” 697 F.3d at 484. It 

further observed that “[w]ith just one exception, every circuit that has reviewed First 

Amendment challenges to disclosure requirements since Citizens United has concluded that such 

laws may constitutionally cover more than just express advocacy and its functional equivalents, 

and in each case the court upheld the law.” Id. at 484 (footnote omitted); see id. at 484 n.17 

(collecting cases). 

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c. Whether Plaintiff’s Proposed Advertisement is “Pejorative” Is 

Irrelevant

Whether plaintiff’s proposed advertisement is “pejorative” (Pl.’s Mem. at 17) has no 

bearing on the extent to which Citizens United and the cases upon which it relies are binding 

here. Indeed, plaintiff makes too much of the Supreme Court’s subjective, parenthetical 

description of the ads at issue in Citizens United as being “in [the Court’s] view, pejorative.” 

Compl. ¶ 87; Citizens United, 558 U.S. at 320. The Court quoted the objective statutory 

definition of “electioneering communication” and at no point purported to limit the scope of that 

definition, or the disclosure requirements attendant to it, to communications that the Court or 

anyone else subjectively views as pejorative (or complimentary). Citizens United, 558 U.S. at 

321 (“An electioneering communication is defined as ‘any broadcast, cable, or satellite 

communication’ that ‘refers to a clearly identified candidate for Federal office’ and is made 

within 30 days of a primary or 60 days of a general election. The Federal Election Commission’s 

(FEC) regulations further define an electioneering communication as a communication that is 

‘publicly distributed.’”) (quoting 52 U.S.C. § 30104(f)(3)(A) (2 U.S.C. § 434(f)(3)(A)); 11 

C.F.R. § 100.29(a)(2)). 

Plaintiff may view a “pejorative” statement about a candidate as “the functional 

equivalent of express advocacy” (Compl. ¶ 87), but the Supreme Court requires more. “[T]he 

functional-equivalent test is objective: ‘a court should find that [a communication] is the 

functional equivalent of express advocacy only if it is susceptible of no reasonable interpretation 

other than an appeal to vote for or against a specific candidate.’” Citizens United, 558 U.S. at 

325 (quoting WRTL, 551 U.S. at 469-70) (emphasis added); id. at 336 (explaining that Citizens 

United’s movie “qualifies as the functional equivalent of express advocacy” because “there is no 

reasonable interpretation of [it] other than as an appeal to vote against Senator Clinton”). 

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Thus, whether plaintiff’s proposed advertisement is “genuine issue speech” or not 

“pejorative” (Pl.’s Mem. at 23) is irrelevant. As explained above, Citizens United holds 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 EC disclosure requirements 

are thus constitutional as applied to communications that lack express advocacy or its functional 

equivalent. 558 U.S. at 369 (emphasis added). “Given the Court’s analysis in Citizens United,

and its holding that the government may impose disclosure requirements on speech, the position 

that disclosure requirements cannot constitutionally reach issue advocacy is unsupportable.” 

Brumsickle, 624 F.3d at 1016; see also supra pp. 20-22 (discussing cases from the Supreme 

Court and other courts holding that the government’s informational interest is sufficiently 

important to justify mandatory disclosure relating to issue advocacy). 

d. It Makes No Difference Which Subsection of the Internal Revenue 

Code Plaintiff Relies On For Its Tax Exemption 

Plaintiff incorrectly asserts (Compl. ¶ 126) that the fact that it is organized under a 

different subsection of the tax code than Citizens United makes this case “distinctly different” 

from Citizens United. The majority opinion in Citizens United makes no mention of the 

particular section of the tax code Citizens United was organized under; it simply describes the 

group as “a nonprofit corporation,” Citizens United 558 U.S. at 319, a broad category that 

includes plaintiff Independence Institute as well. The fact that the Supreme Court did not exempt 

a whole category of nonprofits from the EC disclosure requirements is unsurprising, since such a 

categorical exemption would be inconsistent with the Court’s broad holding that “disclosure is a 

less restrictive alternative to more comprehensive regulations of speech” that furthers the 

public’s important “interest in knowing who is speaking about a candidate shortly before an 

election.” Id. at 369. Clearly the public’s interest in knowing who financed and distributed an 

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electioneering communication is not altered based on which particular subsection of the Internal 

Revenue Code that entity relies on for its tax exemption. As the Court of Appeals for the 

Seventh Circuit has observed, “the voting ‘public has an interest in knowing who is speaking 

about a candidate shortly before an election,’ whether that speaker is a political party, a nonprofit 

advocacy group, a for-profit corporation, a labor union, or an individual citizen.” Madigan, 697 

F.3d at 490 (quoting Citizens United, 558 U.S. at 369). 

In any event, plaintiff’s assertion (Pl.’s Mem. at 18) that “[t]he tax code specifically 

protects § 501(c)(3) donor lists from public disclosure” does not advance its First Amendment 

argument; nonprofits claiming tax exemption under section 501(c)(4) (like Citizens United) are 

similarly exempt from having to disclose the names of their donors to the public. See 26 U.S.C. 

§ 6104(b), (d)(3)(A).13 So even setting aside the fact that Citizens United clearly is not as limited 

as plaintiff would like it to be, plaintiff’s proffered basis for limiting that opinion to nonprofits 

claiming tax exemption under section 501(c)(4) — the fact that the tax code “protects § 501(c)(3) 

donor lists from public disclosure” (Pl.’s Mem. at 18) — also applies to section 501(c)(4) 

nonprofits, i.e., the entities that plaintiff admits are covered by the Citizens United opinion. Thus 

plaintiff’s emphasis of its particular type of nonprofit status fails to identify any relevant 

distinction from the facts in Citizens United. 

 

13 Notably, the Commission, in implementing BCRA’s definition of ECs, had promulgated 

a regulation that excluded communications paid for by corporations operating under section 

501(c)(3) of the Internal Revenue Code. But this Court, in Shays v. FEC, concluded that the 

regulation was arbitrary and capricious and thus invalidated the rule under the Administrative 

Procedure Act, because it improperly tied the enforcement of federal campaign-finance rules to 

the IRS’s interpretation and enforcement of federal tax laws and regulations. 337 F. Supp. 2d 28, 

124-28 (2004). 

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e. “Principles” Articulated in the D.C. Circuit’s 1975 Buckley

Opinion Do Not Supersede the Supreme Court’s Recent Decision 

Rejecting the Precise Constitutional Challenge Asserted Here 

Plaintiff devotes three pages of its brief (Pl.’s Mem. at 6, 18-20) to arguing that rather 

than relying on Citizens United or McConnell (or their progeny), this Court should extend the 

D.C. Circuit’s 27-year-old analysis of a repealed statutory provision to the context of BCRA’s 

EC disclosure requirements. Regardless of whether the general “principles” articulated by the 

Court of Appeals in Buckley “remain good law,” (Pl.’s Mem. at 20), this Court need not draw 

inferences about the applicability of such principles here, where two subsequent Supreme Court 

decisions directly and explicitly foreclose plaintiff’s challenge and multiple Courts of Appeals 

decisions, including one from the en banc D.C. Circuit, support the conclusion that the disclosure 

requirements challenged in this case must be upheld. Citizens United, 558 U.S. at 366-70; 

McConnell, 540 U.S. at 189-201; see also, e.g., SpeechNow, 599 F.3d at 696; Barland, 751 F.3d 

804, 836; Free Speech, 720 F.3d at 795-96, 798; Madigan, 697 F.3d at 476-86; Real Truth, 681 

F.3d at 552; McKee, 649 F.3d at 52-61; Brumsickle, 624 F.3d at 1003-20. See supra pp. 25-27 & 

nn. 11-12. 

III. PLAINTIFF FAILS TO IDENTIFY ANY UNCONSTITUTIONAL BURDEN 

ARISING FROM THE EC DISCLOSURE REQUIREMENTS 

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

U.S. at 74). Plaintiff here has stipulated, and the Court has ordered, however, 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 plaintiff’s donors to any threats, 

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harassment, or reprisals. (Joint Stipulation and Order at 1.) The Buckley, McConnell, and 

Citizens United Courts, while recognizing harassment as a potential burden, specifically found 

no evidence or danger of actual harassment of the plaintiffs in those cases and held that such 

evidence would be required to mount an as-applied First Amendment challenge to the Act’s 

disclosure provisions. Buckley, 424 U.S. at 69 (“No record of harassment on a similar scale was 

found in this case.”) (footnote omitted); McConnell, 540 U.S. at 199 (upholding lower court 

finding that “concerns” of plaintiffs regarding harassment were unsupported due to “lack of 

specific evidence”); Citizens United, 558 U.S. at 367 (same). The Joint Stipulation and Order in 

this case conclusively establishes the absence of any evidence or danger of threats, harassment, 

or reprisals as a result of complying with the challenged disclosure requirements here. (Joint 

Stipulation and Order at 1.)14 

In addition, Citizens United and McConnell clearly foreclose plaintiff’s generalized claim 

(Compl. ¶ 6) that “BCRA’s regulation of electioneering communications chills discussion of 

public policy issues.” See supra pp. 15-18. But even if such a claim were not foreclosed, 

plaintiff fails even to allege, let alone offer evidence of, any specific manner in which the EC 

disclosure requirements would “chill” its ability to exercise its First Amendment rights. And 

plaintiff has agreed, and the Court has ordered, that it will not “supplement” its Motion with any 

further “evidence.” (Joint Stipulation and Order at 1-2.) 

 

14 The Joint Stipulation and Order also highlights plaintiff’s misplaced reliance (Pl.’s Mem. 

at 18) on the fact that Citizens United had disclosed its donors in the past. The Supreme Court 

noted Citizens United’s history of donor disclosure as support for its finding that Citizens United 

had failed to demonstrate “that its members may face . . . threats or reprisals.” 558 U.S. at 370. 

The Court observed that “contrary” to any alleged threats or reprisals, “Citizens United has been 

disclosing its donors for years and has identified no instance of harassment or retaliation.” Id.

(emphasis added). Because Independence Institute, unlike Citizens United, has affirmatively 

disavowed any allegations or evidence of threats, harassment, or reprisals, that portion of 

Citizens United has no relevance here. The Court made no mention of Citizens United’s history 

of donor disclosure in its discussion of the constitutionality of the challenged EC requirements. 

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33

The Seventh Circuit’s Barland decision, on which plaintiff relies, distinguished the “onetime, event driven disclosure rule for federal electioneering communications,” as “far more 

modest” than other campaign-finance disclosure requirements and described the scope of the EC 

requirements as “specific and narrow.” Barland, 751 F.3d at 836. The disclosure requirements 

for plaintiff, however, are even narrower than the statute, because, as plaintiff itself recognizes 

(Pl.’s Mem. at 24), FEC regulations limit the scope of disclosure required for federal ECs 

financed by corporations. See 11 C.F.R. § 104.20(c)(9). To 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” (Compl. ¶ 124), that fear is baseless. As plaintiff acknowledges, 

“the Commission does not read the statute in this manner.” (Id. (emphasis added).) Indeed, the 

applicable regulation, 11 C.F.R. § 104.20(c)(9), expressly precludes such an interpretation and 

instead requires disclosure for corporations only of those who donated “for the purpose of 

furthering electioneering communications.” While it is true, as plaintiff notes (Compl. ¶¶ 55, 

124), that the Commission’s regulation has been challenged in a separate, ongoing litigation, the 

regulation remains valid, in force, and binding on the Commission. The existence of a lawsuit 

challenging the validity of a duly promulgated regulation does not, as plaintiff claims (id. ¶ 125), 

demonstrate that the provision “rests on unsteady footing,” nor does it establish any risk that the 

Commission will abruptly refuse to follow the rule, conduct that itself would render the 

Commission susceptible to a legal challenge. Moreover, in the very litigation plaintiff identifies 

(id. ¶ 124), the Court of Appeals for the D.C. Circuit has found that “[t]he FEC’s promulgation

of 11 C.F.R. § 104.20(c)(9) reflects an attempt by the agency to provide regulatory guidance 

under the BCRA following the partial invalidation of the speech prohibition imposed on 

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34

corporations and labor unions in the context of ‘electioneering communications,’” and 

accordingly remanded the case to the district court for further consideration under the 

Administrative Procedure Act. Ctr. for Individual Freedom v. Van Hollen, 694 F.3d 108, 111 

(D.C. Cir. 2012) (per curiam). That finding is a far cry from demonstrating that the regulation 

“rests on unsteady footing.” 

Moreover, if plaintiff would prefer not to rely on section 104.20(c)(9) of the 

Commission’s regulations, the Act and Commission regulations provide plaintiff another option 

for financing its proposed EC that would also enable it to limit the scope of donors it would have 

to disclose. As explained supra at p. 8 (and as plaintiff acknowledges (Compl. ¶ 53)), if plaintiff 

finances its proposed EC with funds from a “segregated bank account established to pay for 

electioneering communications,” it would only be required to identify those individuals who 

contributed $1,000 or more to the account itself. 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). 

CONCLUSION 

For all the foregoing reasons, plaintiff’s Motion should be denied and the Court should 

award judgment to the Commission. 

Respectfully submitted, 

Lisa Stevenson 

Deputy General Counsel – Law 

(D.C. Bar No. 457628) 

lstevenson@fec.gov 

Kevin Deeley 

Acting Associate General Counsel 

kdeeley@fec.gov 

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

Acting Assistant General Counsel 

echlopak@fec.gov 

Case 1:14-cv-01500-CKK Document 19 Filed 09/19/14 Page 41 of 42
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/s/ Michael A. Columbo 

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

 Attorney 

 mcolumbo@fec.gov 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

 999 E Street N.W. 

 Washington, D.C. 20463 

 (202) 694-1650

Federal Election Commission 

999 E Street, N.W. 

Washington, DC 20463 

September 19, 2014 (202) 694-1650 

Case 1:14-cv-01500-CKK Document 19 Filed 09/19/14 Page 42 of 42