No. 16-743 444444444444444444444444444444444444444444

IN THE

Supreme Court of the United States ____________________

INDEPENDENCE INSTITUTE, Appellant,

v.

FEDERAL ELECTION COMMISSION, Appellee. ____________________

On Appeal from the United States District Court

for the District of Columbia ____________________

Brief Amicus Curiae of 

Free Speech Defense and Education Fund,

Free Speech Coalition,

United States Justice Foundation, Gun Owners

Foundation, Gun Owners of America, National

Right to Work Committee, U.S. Constitutional

Rights Legal Defense Fund, Conservative Legal

Defense and Education Fund, Downsize DC

Foundation, and DownsizeDC.org

In Support of Appellant ____________________

JOSEPH W. MILLER WILLIAM J. OLSON*

U.S. Justice Foundation HERBERT W. TITUS

932 D Street, Ste. 2 JEREMIAH L. MORGAN

Ramona, CA 92065 ROBERT J. OLSON

Attorney for Amicus Curiae JOHN S. MILES

U.S. Justice Foundation WILLIAM J. OLSON, P.C.

370 Maple Ave. W., Ste. 4

MARK J. FITZGIBBONS Vienna, VA 22180-5615

 Manassas, VA 20110 (703) 356-5070

wjo@mindspring.com

*Counsel of Record Attorneys for Amici Curiae

January 9, 2017

444444444444444444444444444444444444444444
TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . ii

INTEREST OF THE AMICI CURIAE ............... 1

STATEMENT OF THE CASE ..................... 2

SUMMARY OF ARGUMENT ..................... 7

ARGUMENT

I. The Court Below Erroneously Assumed that

the Independence Institute’s Challenge Was

Governed by Campaign Finance Cases . . . . . . 8

II. The BCRA Forced-Disclosure Rule Violates

the First Amendment Anonymity Principle

as Explained and Applied in McIntyre v.

Ohio Elections Commission . . . . . . . . . . . . . . 10

III. The BCRA Forced-Disclosure Rule Violates

the Freedom of the Press, as Expressed in

Talley v. California . . . . . . . . . . . . . . . . . . . . . 17

IV. The True Purpose for Banning or Restricting

Electioneering Communications Is Not the

Public’s Informational Interest, But Rather

the Congressional Self-Interest in Incumbent

Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
ii

TABLE OF AUTHORITIES

Page

U.S. CONSTITUTION

Amendment I . . . . . . . . . . . . . . . . . . . . . . . . 6, passim

STATUTES

52 U.S.C. § 30104(f) . . . . . . . . . . . . . . . . . . . . . . . 4, 5

52 U.S.C. § 30109 ........................... 4

Bipartisan Campaign Reform Act . . . . . . . . 2, passim

REGULATIONS

11 C.F.R. § 100.29 .......................... 5

CASES

Citizens United v. Federal Election Commission,

558 U.S. 310 (2010) . . . . . . . . . . . . . . . . . . 5, 7, 9

FEC v. Wisconsin Right to Life, 551 U.S. 449 

(2007) ................................. 4

McConnell v. Federal Election Commission, 

540 U.S. 93 (2003) . . . . . . . . . . . . . . . . . 4, passim

McIntyre v. Ohio Elections Commission, 

514 U.S. 334 (1995) . . . . . . . . . . . . . . . . 7, passim

Miami Herald Publishing Co. v. Tornillo, 

418 U.S. 241 (1974) . . . . . . . . . . . . . . . . 8, 13, 24

NAACP v. Alabama, 357 U.S. 449 (1958) . . . . . . . 15

Talley v. California, 362 U.S. 60 (1960) . . . 8, 12, 17

MISCELLANEOUS

William Blackstone, Commentaries on the

Laws of England (1769) . . . . . . . . . . . . . . . . . 19

J. DelCour, “Soft on crime: The Great Divide 

dissolves,” Tulsa World (Feb. 2, 2014) ....... 3
iii

Philip Hamburger, Is Administrative Law

Unlawful? (Univ. Chi. Press: 2014). . . . . . . . . 20

R. Ketchum, edt., The Political Thought of Benjamin Franklin (Hackett Publishing: 2003) . . . 9

James C. Miller, III, Monopoly Politics (Hoover

Institution Press: 1999) . . . . . . . . . . . . . . 23, 24
INTEREST OF THE AMICI CURIAE1

Free Speech Defense and Education Fund, U.S.

Justice Foundation, Gun Owners Foundation, U.S.

Constitutional Rights Legal Defense Fund,

Conservative Legal Defense and Education Fund, and

Downsize DC Foundation are nonprofit educational

organizations, exempt from federal income tax under

section 501(c)(3) of the Internal Revenue Code (“IRC”). 

Free Speech Coalition, Gun Owners of America, Inc.,

National Right to Work Committee, and

DownsizeDC.org are nonprofit social welfare

organizations, exempt from federal income tax under

IRC section 501(c)(4). 

These legal and policy organizations were

established, inter alia, for educational purposes related

to participation in the public policy process, which

purposes include programs to conduct research and to

inform and educate the public on the proper

construction of state and federal constitutions and

statutes related to the rights of citizens, and questions

related to human and civil rights secured by law. 

Many of these amici filed amicus curiae briefs in

support of Appellant before the U.S. Court of Appeals

1

 It is hereby certified that counsel for the parties have consented

to the filing of this brief; that counsel of record for all parties

received notice of the intention to file this brief at least 10 days

prior to the filing of it; that no counsel for a party authored this

brief in whole or in part; and that no person other than these

amici curiae, their members, or their counsel made a monetary

contribution to its preparation or submission.
2

for the D.C. Circuit2

 as well as the U.S. District Court

for the District of Columbia.3

STATEMENT OF THE CASE

This appeal from the ruling of a three-judge

district court concerns the constitutionality of the

disclosure requirements for so-called “electioneering

communications” under the Bipartisan Campaign

Reform Act of 2002 (“BCRA”), as that requirement

applies to the radio broadcast of a genuine issue ad by

the Independence Institute, a nonprofit corporation

exempt from federal income taxation under IRC

Section 501(c)(3). 

The issue ad in question was written to encourage

the people of Colorado, pursuant to their constitutional

right to petition the government, to contact their two

sitting United States Senators to vote in favor of a

controversial bill then pending in Congress — the

Justice Safety Valve Act. This bill would authorize

federal judges to sentence federal defendants below

the statutorily prescribed mandatory minimum terms

to prevent unjust sentences and to reduce prison

overcrowding, while ensuring that dangerous offenders

remain incarcerated. Many members of Congress were

2

 See Brief Amicus Curiae of Citizens United, et al. (April 15,

2015), http://www.lawandfreedom.com/site/election/

Ind%20Inst%20CU%20amicus%20brief.pdf.

3

 See Brief Amicus Curiae of Free Speech Defense and Education

Fund, et al. (June 24, 2016), http://lawandfreedom.com/

wordpress/wp-content/uploads/2016/06/Independence-InstituteAmicus-Brief-as-filed.pdf.
3

reluctant to support this bill, fearing that they would

be viewed by voters as being “soft on crime.”4

 Strongly

favoring that bill, Independence Institute sought to

demonstrate public support for that legislation by

stimulating grassroots lobbying directed at the two

U.S. Senators from Colorado: Senator Michael

Bennett, who was not a candidate for re-election in

2014, and Senator Mark Udall, who was.

Prior to BCRA, such issue advocacy had been

unregulated. Certain incumbents realized that they

could use campaign finance laws to squelch this

unwanted pressure arising from their electorate. 

Mischaracterizing genuine issue ads as “electioneering

communications,” BCRA amended federal election law

to ban certain types of effective broadcast

communications which dared even mention the names

of incumbent politicians during the period that

Americans are generally most focused on the

performance of their elected officials — immediately

before primaries and general elections. 

Understandably, elected officials are tempted to

misuse federal law to increase the already vast

benefits of incumbency. BCRA is a prime example of

the continuing effort by incumbents to protect

themselves, here by requiring persons critical of

incumbents to self-identify, not for the benefit of the

public, but for the incumbents’ own benefit. 

Incumbents know that mandatory disclosure chills the

speech of many, thereby minimizing public pressure on

incumbents. The very term “electioneering

4 See, e.g., J. DelCour, “Soft on crime: The Great Divide dissolves,”

Tulsa World (Feb. 2, 2014). 
4

communication” appears to have been crafted to give

the impression that all issue ads are really campaign

ads. Thus, genuine issue ads which even mention the

name of an incumbent politician meet the statutory

test for “electioneering communications,” regardless of

whether the advertisement advocates for or against a

federal candidate.

Congress imposed substantial civil penalties for

failure to file the electioneering communication notices

required by 52 U.S.C. § 30104(f)(1): “the greater of

$5,000 or an amount equal to any contribution or

expenditure involved in such violation....” 52 U.S.C.

§ 30109(a). However, for a “knowing and willful

violation,” the civil penalties increase to “the greater of

$10,000 or an amount equal to 200 percent of any

contribution or expenditure involved in such

violation.....” Id. In addition, severe criminal

penalties also may be imposed for a knowing and

willful violation: imprisonment for up to one year for

violations involving $2,000 to $25,000, and

imprisonment of up to five years for violations

involving $25,000 or more. [52 U.S.C. § 30109.]

Although the Supreme Court rebuffed the first

facial challenge to BCRA’s electioneering

communications ban in McConnell v. FEC, 540 U.S. 93

(2003), it later ruled that the ban was unconstitutional

as applied to genuine issue ads in FEC v.

Wisconsin Right to Life, 551 U.S. 449 (2007) (“WRTL

II”). When challenged again in 2010, the Supreme

Court decided that BCRA’s electioneering

communication prohibition was unconstitutional as

applied to a corporation engaged in an
5

electioneering communication. See Citizens United v.

FEC, 558 U.S. 310 (2010). However, in the same case,

the Court upheld BCRA’s disclosure and reporting

requirements for such electioneering communications,

including the disclosure of the names and addresses of

certain donors to the organization making the

communication.5

The Independence Institute realized that its radio

communication could be considered by the Federal

Election Commission (“FEC”) to be an “electioneering

communication.” In 2014, when the ad in question

was presented for review, the FEC took the position

that it was an “electioneering communication,”

meeting all four criteria in the statute and the FEC’s

regulation,6

 and making it subject to BCRA’s

disclosure rules. See 52 U.S.C. § 30104(f)(3); 11 C.F.R.

§ 100.29. These reporting requirements include

5

 Although the FEC has interpreted the donor disclosure

requirement to apply only to those donors who contribute for the

purpose of electioneering communications, pending litigation

challenges that interpretation. An incumbent congressman is

litigating to have the disclosure requirement applied to all donors

to the organization, regardless of the donors’ intentions. See

Plaintiff’s Motion for Summary Judgment and Memorandum in

Support at 9, n.3. Many of these amici filed an amicus brief in the

first appeal of that lawsuit. See Van Hollen v. FEC, Brief Amicus

Curiae of Free Speech Coalition, et al. in Support of Appellants

and Reversal (June 27, 2012).

6

 First, Mark Udall, one of the two senators referred to in the ad,

was a candidate for re-election. Second, the ad was scheduled to

be broadcast within 60 days of a general election. Third, the ad

was targeted to the relevant electorate. Fourth, the expenditure

for the ad exceeded $10,000. 
6

making a public filing with the FEC of the names and

addresses of certain donors who gave an aggregate of

$1,000 or more to the sponsor of the advertisement

since the first day of the preceding calendar year.

On September 2, 2014, the Independence Institute

filed suit in the U.S. District Court for the District of

Columbia asserting that the BCRA disclosure

requirement unconstitutionally abridged its freedom

of speech. A single district court judge refused to

convene the required three-judge district court. The

U.S. Court of Appeals for the District of Columbia

reversed, ordering that the case be heard by a threejudge court as required by BCRA. 

The Independence Institute made two “as applied”

First Amendment challenges. First, it claimed that

the BCRA disclosure requirement was

unconstitutional when applied to its “genuine issue

advocacy.” See Independence Institute v. FEC, 2016

U.S. Dist. LEXIS *18-*19. Second, it claimed the

requirement was unconstitutional as applied to an IRC

section 501(c)(3) organization such as the Institute. 

On November 3, 2016, a three-judge court ruled

against the Independence Institute, granting summary

judgment to the FEC. This amicus brief addresses the

Institute’s first contention. 
7

SUMMARY OF ARGUMENT

In an area of constitutional law as heavily litigated

as the First Amendment, the first responsibility of a

lower court is to identify the issue presented and then

to select the line of precedents which governs the case. 

The Independence Institute’s challenge involved a

genuine issue ad focused on stimulating grassroots

advocacy, and chose to apply principles applicable to

campaign finance law. This was a mistake. The

challenge brought by the Independence Institute does

not involve speech supporting or opposing candidates. 

It should make no difference that Congress chose to

apply the term “electioneering communications” to

issue ads — these ads remain issue ads, not

electioneering. Believing that any such grassroots

advertisement “could” have some “electoral impact,”

the court below applied McConnell v. FEC, 540 U.S. 93

(2003) and Citizens United v. FEC, 558 U.S. 310

(2010), thereby making a significant error. 

The line of precedent which the court below should

have used is typified by McIntyre v. Ohio Elections

Commission. There, this Court struck down an Ohio

law which required that each advertisement relating

to public issues identify the name and address of those

sponsoring the ad — much the same as required by the

BCRA “electioneering communication” disclosure

provision. This Court laid down the principle that

authors, publishers, or sponsors of such

advertisements are free to disclose or withhold their

identity — and cannot be forced by the government to

reveal their identity — a matter within the editorial

authority of the people secured by the freedom of the
8

press. See Miami Herald Publishing Co. v. Tornillo,

418 U.S. 241 (1974). The press freedom’s strong

protections for the anonymity of authors and

publishers, dates back to the colonial trial of New York

printer John Peter Zenger in 1735. See Talley v.

California, 362 U.S. 60 (1960). 

Lastly, this Court should not defer to

Congressional claims that this law is designed to

inform the public about money in politics. The law

was written to inform incumbents about their critics

and thereby chill speech. Individual members of

Congress benefit personally and politically from this

particular law. Although the law purports to apply to

incumbents and challengers, it was written by and for

incumbents. It would be the rare “electioneering

communication” that asks the public to contact a

challenger to vote on a particular manner, since the

challenger has no vote to cast. The political benefit to

members of Congress of a law requiring critics to selfidentify is clear. Any claim about the public’s right to

know should be understood to be nothing more than a

smokescreen. 

ARGUMENT

I. The Court Below Erroneously Assumed

that the Independence Institute’s

Challenge Was Governed by Campaign

Finance Cases.

 The court below wrongly assumed that the

constitutionality of the Institute’s genuine issue ad

was governed by two campaign finance cases, asserting
9

that McConnell v. FEC, 540 U.S. 93 (2003) and

Citizens United v. FEC, 558 U.S. 310 (2010) “have

already largely, if not completely, closed the door to the

Institute’s argument that the constitutionality of a

disclosure provision turns on the content of the

advocacy accompanying an explicit reference to an

electoral candidate.” Independence Institute at *23. 

Also, the court dismissed the Institute’s “proposed

constitutional exception for ‘genuine’ issue advocacy [to

be] entirely unworkable as a constitutional rule” (id. at

*26). The court assumed that there was no way to

distinguish between “speech about legislative

candidates” and “speech about legislative issues for

which they will be responsible,” basing its decision on

its “imagination [as to the] electoral impact” that an

issue ad “could” have (id. at *26-*27). The court

opined that the constitutionality of disclosure

requirements for an issue ad with even a scintilla of

“electoral impact” — should be governed by McConnell

and Citizens United.

The court below cared nothing about illicit,

politically motivated congressional desires to minimize

political pressure from their constituents. See Section

V, infra. Rather, the court chose to protect incumbent

elected officials, disregarding the need of the electorate

for unfettered information about and access to ways to

petition those officials. Benjamin Franklin observed

that “[i]n free governments the rulers are the servants,

and the people their superiors & sovereigns.”7

7

 R. Ketchum, edt., The Political Thought of Benjamin Franklin

(Hackett Publishing: 2003) at 396. 
10

Implicitly rejecting popular sovereignty in favor of a

fictional American version of Parliamentary

sovereignty, the court below summarily dismissed as

“unworkable” an entire line of First Amendment cases

establishing the right to anonymous speech, as

demonstrated in Sections II-IV, infra. This was clear

error and serves to establish jurisdiction in this case. 

II. The BCRA Forced-Disclosure Rule Violates

the First Amendment Anonymity Principle as

Explained and Applied in McIntyre v. Ohio

Elections Commission

A. Mrs. Margaret McIntyre and the

Independence Institute: Anonymity in

Action. 

On April 27, 1988, a woman named “Margaret

McIntyre distributed leaflets to persons attending a

public meeting ... to discuss an imminent referendum

on a proposed school tax levy.” McIntyre v. Ohio

Elections Commission, 514 U.S. 334, 337 (1995). Some

of her leaflets identified her as the author, while

others “purported to express the views of

‘CONCERNED PARENTS AND TAXPAYERS.’” Id.

The leaflets read, in part, as follows:

VOTE NO

ISSUE 19 SCHOOL TAX LEVY

***

WASTE of tax payers dollars must be stopped. 

 Our children’s education and welfare must come

first.

WASTE CAN NO LONGER BE TOLERATED.
11

PLEASE VOTE NO

ISSUE 19

THANK YOU. 

CONCERNED PARENTS AND TAXPAYERS

Helped by a friend and her son, Mrs. McIntyre

managed to leaflet the automobiles in the school

parking lot, only to be confronted by a school district

official who advised that her actions did not “conform

to the Ohio election laws.” Id. at 338. “Undeterred,

Mrs. McIntyre appeared at another meeting on the

next evening and handed out more of the handbills.” 

Id.

After the tax levy passed, the school official who

had confronted Mrs. McIntyre filed a complaint

against her with the Ohio Elections Commission

(“OEC”), charging her with a violation of an Ohio law

which provided, in relevant part, as follows:

“No person shall write, print, post, or

distribute ... a notice, placard, dodger,

advertisement ... or any other form of general

publication which is designed to ... promote the

adoption or defeat of any issue, or to influence

the voters in any election ... through flyers,

handbills, or other nonperiodical printed

matter, unless there appears on such form of

publication in a conspicuous place ... the name

and residence or business address of the

chairman, treasurer, or secretary of the

organization issuing the same, or the person

who issues, makes, or is responsible therefor.” 

[Id. at 338, n.3 (emphasis added).]
12

The Commission found that Mrs. McIntyre had

violated the statute and fined her $100.

B. The First Amendment Anonymity

Principle As Applied in McIntyre.

In 1995, this Court reversed the order of the OEC

requiring Mrs. McIntyre to pay the $100 fine. 

McIntyre at 357. Relying primarily upon Talley v.

California, the Court found the Ohio forced-identity

disclosure law to be a violation of the First

Amendment principle of anonymity. McIntyre at 341-

43. After a brief review of the history of the freedoms

of speech and of the press, Justice Stevens (as had

Justice Black before him in Talley) concluded that the

decision whether to disclose the identity of the author,

the publisher, or anyone else associated with the

decision to speak out belongs, as a constitutional

matter, not to the civil authorities, but to the speaker

himself: “[A]n author’s decision to remain anonymous,

like other decisions concerning omissions or additions

to the content of a publication, is an aspect of the

freedom of speech protected by the First Amendment.” 

McIntyre at 342. Indeed, Justice Stevens continued: 

Anonymity ... provides a way for a writer who

may be personally unpopular to ensure that

readers will not prejudge her message simply

because they do not like its proponent. Thus,

even in the field of political rhetoric, where

“the identity of the speaker is an important

component of many attempts to persuade,” ...

the most effective advocates have sometimes

opted for anonymity. [Id. at 342-43.]
13

In sum, the McIntyre ruling stands for the fixed

principle that a law which requires the public

disclosure of the identity of the author, publisher,

distributor, circulator, or sponsor of a communication

advocating support or opposition to a government

policy is unconstitutional, because such a law divests

editorial control vested in the people by the freedoms

of speech and the press, to the exclusion of the

government’s control. See id. at 348, citing Miami

Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974). 

As Chief Justice Burger wrote in Miami Herald: 

[T]he Florida statute fails to clear the barriers

of the First Amendment because of its

intrusion into the function of editors.... The

choice of material to go into a newspaper, and

the decisions made as to limitations on the ...

content of the paper, and treatment of public

issues and public officials — whether fair or

unfair — constitute the exercise of editorial

control and judgment. [Id. at 258.]

C. The First Amendment Anonymity

Principle Precludes BCRA’s Disclosure

Requirement from Being Applied to

Genuine Issue Ads. 

Fast forward a quarter century. In 2014, the

Independence Institute, a nonprofit corporation with

a strong track record in research and education on

matters of public policy, wished to produce a radio

advertisement urging Colorado voters to contact their

two Senators to support a bill pending in Congress: 

the Justice Safety Valve Act, allowing federal judges
14

discretion in the sentencing of nonviolent offenders. 

The text of the radio advertisement simply informed

listeners of the need for the legislation and urged them

to contact their Senators’ Washington offices to

vocalize support for passage of the legislation. See

Jurisdictional Statement at 6.

Like Mrs. McIntyre’s handbills issued in the name

of the Concerned Parents and Taxpayers, the

advertisement proposed by the Independence Institute

does not provide the names and addresses of the

organization’s donors on whose behalf the Institute is

acting. Like the Ohio law which prohibited the

circulation of any handbill without naming the person

responsible for the content of the handbill, BCRA

would require the disclosure of the names and

addresses of the Institute’s major donors, the persons

ultimately responsible for the proposed advertisement. 

This Court should note probable jurisdiction in this

case to strike down the BCRA requirement as applied

to the Independence Institute, the same as this Court

did to the Ohio forced disclosure law as applied to Mrs.

McIntyre. As observed in McIntyre, “the [anonymous]

speech in which Mrs. McIntyre engaged — handing out

leaflets in the advocacy of a politically controversial

viewpoint — is the essence of First Amendment

expression” (id. at 347).” Likewise, the politically

controversial viewpoint speech proposed by the

Independence Institute is equally the essence of such

First Amendment expression. Indeed, as Justice

Stevens exclaimed in his McIntyre opinion: “No form

of speech is entitled to greater constitutional

protection than Mrs. McIntyre’s.” Id. at 347 (emphasis

added).
15

D. There Is No Good Reason Not to Apply the

Anonymity Principle Here.

In its Jurisdictional Statement, the Independence

Institute emphasizes that forced disclosure of the

names of the Institute’s major donors violates their

“associational privacy.” Jurisdictional Statement at

12, 24. But the right of the people to associate

together for a common cause also enhances their

ability to persuade others by presenting a united front

behind the Institute’s policy positions. See id. at 12

(quoting Buckley v. Valeo). See also NAACP v.

Alabama, 357 U.S. 449, 460 (1958). Oftentimes,

individuals associate with one another, designating

some brave souls to lead the way, leaving the tactics,

priorities, and strategies in the hands of others. 

Forced disclosures upend these tactical decisions, and

might even cause divisions and dissension within the

ranks, eroding the effectiveness of the association in

reaching its policy goals. 

Additionally, the Institute expressed concern about

how the strength of the government’s purported

interest in a more fully informed people is carefully

circumscribed, contending that, whatever

“informational interest” the government has is

“properly tailored [to] ‘spending that is unambiguously

campaign related.’” See Jurisdictional Statement at

12-13. Relying on the anonymity principle, however,

Justice Stevens flat-out stated that “Ohio’s

informational interest is plainly insufficient to support

the constitutionality of its disclosure requirement.” 

McIntyre at 349. Not only did Justice Stevens find the

OEC’s informational interest a weak reed, but more
16

importantly, he also found that “the identity of the

speaker is no different from other components of the

document’s content that the author is free to include or

exclude.” Id. at 348.

To be sure, Justice Stevens did concede that the

state’s informational interest, if coupled with a

disclosure requirement governing campaign

expenditures, could justify the mandatory disclosure of

campaign donors in the interest of combating “quid pro

quo” corruption. McIntyre at 356. But that is not the

case here. As the Institute’s Jurisdictional Statement

ably points out, the ad contains no unambiguously

campaign-related speech, and is an electioneering

communication in name only — since there is no

electioneering in fact. See Jurisdictional Statement at

7-8.

E. The McIntyre Anonymity Rule Should

Prevail.

Mrs. McIntyre’s leaflet activity opposing a local

school board tax levy may appear pedestrian when

compared with the Independence Institute’s polished

radio ad addressing national criminal sentencing

policy. But the constitutional rule of anonymity

applies equally to both. Paraphrasing Justice Stevens’

observation in McIntyre: “Urgent, important, and

effective speech [like that of the Independence

Institute] can be no less protected than impotent

speech [like that of Mrs. McIntyre], lest the right to

speak be relegated to those instances when it is least

needed.” See McIntyre at 347. The rule of anonymity

applies across the board regardless of the importance
17

of the policy issue at stake, or of the likely impact of

the communication involved. See id. at 348-49. 

III. The BCRA Forced-Disclosure Rule

Violates the Freedom of the Press, as

Expressed in Talley v. California.

As noted above, Talley v. California — the primary

precedent upon which McIntyre rests — traced the

anonymity principle back to the freedom of the press. 

See McIntyre at 341-42. As Justice Black observed in

Talley:

The obnoxious press licensing law of England,

which was also enforced on the Colonies was

due in part to the knowledge that exposure of

the names of printers, writers and distributors

would lessen the circulation of literature

critical of the government. The old seditious

libel cases in England show the lengths to

which government had to go to find out who

was responsible for books that were obnoxious

to the rulers. John Lilburne was whipped,

pilloried and fined for refusing to answer

questions designed to get evidence to convict

him or someone else for the secret distribution

of books in England. [Id. at 64-65.]

To be sure, BCRA does not employ the literal historic

rack and screw, but as the Institute has demonstrated,

“[b]ecause none of the statutory electioneering

communication exemptions apply, the Independence

Institute is left to choose between burdensome
18

regulation and the violation of its donors’ privacy, or

remaining silent.” Appendix (“App.”) at 81.

Like the English licensing system condemned in

Talley, the BCRA disclosure mandate imposes a form

of censorship, with the heaviest burden falling on

those organizations that do not have the wherewithal

to pay the administrative costs of compliance in

addition to the cost of the distribution of the

advertisement. And, as Talley points out, “‘[l]iberty of

circulating is as essential to [the freedom of

expression] as liberty of publishing; indeed, without

the circulation, the publication would be of little

value.’” Id. at 64. It is no wonder, then, that “[b]efore

the Revolutionary War colonial patriots frequently had

to conceal their authorship or distribution of literature

that easily could have brought down on them

prosecutions by English-controlled courts.” Id. at 65.

But there is an even greater principle at stake here

than assessing costs and benefits, as modern courts

are wont to do, in deciding whether a law

unconstitutionally “burdens” a First Amendment right. 

Concurring in the judgment in McIntyre, Justice

Thomas faulted the majority for not asking the right

question: “whether the phrase ‘freedom of speech, or

of the press,’ as originally understood, protected

anonymous political leafletting.” Id. at 359 (Thomas,

J., concurring). With that introduction, Justice

Thomas dove into early American history, zeroing in

on the “most famous American experience with

freedom of the press, the 1735 Zenger trial, [noting

that it] centered around anonymous political

pamphlets.” Id. at 361. As Justice Thomas retold the
19

story, the seditious libel charge against Zenger, a

printer, was that he “refused to reveal the anonymous

authors of published attacks on the Crown Governor of

New York.” Id. The jury refused to convict, “set[ting]

the colonies afire” and “signif[ying] at an early moment

the extent to which anonymity and the freedom of the

press were intertwined in the early American mind.” 

Id. at 361.

The American jury’s mind undoubtedly was shaped

by events in England in the 1600s. As chronicled by

Sir William Blackstone in the fourth volume of his

Commentaries on the Laws of England published in

1769, “[t]he art of printing, soon after it’s [sic]

introduction, was looked upon ... as merely a matter of

state, and subject to the coercion of the crown” (id. at

152, n.a):

It was therefore regulated ... by the king’s

proclamations, prohibitions, charters of

privilege and of licence, and finally by the

decrees of the court of starchamber; which

limited the number of printers, and of presses

which each should employ, and prohibited new

publications unless previously approved by

proper licensers. [Id.]

By the time that Blackstone published the last

volume of his Commentaries, he wrote without

reservation that “[t]he liberty of the press is indeed

essential to the nature of a free state: but this consists

in laying no previous restraints upon publications....” 

Id. at 151. The essence of the liberty, Blackstone

continued, was that “[e]very freeman has an
20

undoubted right to lay what sentiments he pleases

before the public: to forbid this, is to destroy the

freedom of the press.” Id. at 151-52. Thus, he

concluded: “To subject the press to the restrictive

power of a licenser ... is to subject all freedom of

sentiment to the prejudices of one man, and make him

the arbitrary and infallible judge of all controverted

points in learning, religion, and government.” Id. at

152.

Although Blackstone did not specifically identify

the anonymity principle, there can be no doubt that a

law requiring the disclosure of (i) the identity of an

author of a book, or (ii) the publisher of a political

pamphlet, or (iii) the financial sponsor of a radio ad as

a precondition of circulating the book, handing out of

the leaflet, the running of a radio ad would run afoul

of the no-licensing principle undergirding the freedom

of the press. Yet, that is what the Ohio law did in

McIntyre, and what BCRA does here. Indeed, BCRA

authorizes the FEC to review the Independence

Institute’s radio ad to ascertain whether it is a genuine

issue ad, or a subterfuge electioneering communication

subject to the FEC’s jurisdiction and, hence, subject to

its disclosure mandate. That is raw censorship. Like

the Star Chamber before it, the FEC functions as a

licenser of the press, requiring those who use the

broadcast media either to comply voluntarily with FEC

regulations, or to risk civil sanction or criminal

prosecution for violation of the FEC’s rules. See Philip

Hamburger, Is Administrative Law Unlawful? at 258

(Univ. Chi. Press: 2014).
21

IV. The True Purpose for Banning or

Restricting Electioneering Communications

Is Not the Public’s Informational Interest,

But Rather the Congressional Self-Interest

in Incumbent Protection.

This case challenges a statute cleverly crafted by

incumbent members of Congress to discourage the

public from communicating with their constituencies

about their official acts, political positions, and votes

in Congress. In this case, the communications

Congress seeks to severely limit contained relevant

information about an important policy issue and

related legislation before it. Unable to impose an

obviously unconstitutional complete ban on

communications which would rile up their

constituents, BCRA invented a category of

communications that incumbents find particularly

meddlesome, labeling them as “electioneering

communications,” and then regulating those

communications to the point that few would dare

venture into that minefield. 

Compliance with FEC rules requires a detailed

understanding of obscure and complex statutory and

regulatory terms which often have counter-intuitive

definitions, including “clearly identified candidate,”

“publicly distributed shortly before election,” “targeted

to the relevant electorate,” “exemptions,” as well as

rules on “when to file,” “disclosure date,” “where to

file,” and “content of disclosure.”8

 Among the

8

 See FEC Brochure, “Electioneering Communications,”

http://www.fec.gov/pages/brochures/electioneering.shtml (updated
22

exemptions from these rules are “[e]xpenditures or

independent expenditures that must otherwise be

reported to the Commission...” Id. Therefore, it is

important to note that this statute and these rules

were extended to control organizations which are not

political committees, and therefore, which are

unfamiliar with even the basics of FEC recordkeeping

and reporting. They are a trap for the unwary. The

Jurisdictional Statement rightfully focuses on

“burdening core First Amendment activity” for

compliance with the electioneering communication

restrictions.9

 But the problem is even more serious

than that. 

First, the regulatory scheme that Congress has

employed protects incumbents, not challengers. It is

true that the first ingredient of an electioneering

communication is communication “that ‘refers to a

clearly identified candidate for Federal office.’” Id. at

7. However, this does not mean that this law protects

challengers and incumbents equally. It would be rare

for an electioneering communication to ask the public

to let their views about pending legislation be known

to a challenger who has no vote to cast. Laws like

BCRA are written by incumbents, not challengers, and

this law, like all campaign finance laws, was written

by incumbents for the benefit of incumbents.10

January 2010). 

9

 See, e.g., Jurisdictional Statement at 24.

10 Former Federal Trade Commission Chairman James C. Miller’s

book Monopoly Politics summarizes it this way: “More than two
23

Second, the electioneering communications rules

were actually calculated to deter communications

about issues presently before Congress. The issue

advertisements which the law targets are generally

designed to urge the public to contact incumbents and

let them know how they feel about pending legislation

or an important policy issue. Without receiving public

pressure, incumbents decide how to vote based on their

own independent political calculus, without any

meddlesome input from the electorate to which they

have no desire to be accountable. The electioneering

communications law severely limits the use of an

incumbent’s name in broadcast ads during the time of

year that most Americans are paying the most

attention to the activities of their elected officials —

the period before elections.

Third, for those who nevertheless decide to run

advertisements, the rules on electioneering

communications require nonprofit organizations to

disclose the names of their major donors so that

powerful members of Congress can have a complete

list of the names and addresses of those relatively

wealthy persons who would dare to meddle in their

states and districts. Of course, since an overwhelming

number of Senators and Representatives who seek reelection achieve that goal and will continue to wield

governmental power, this discourages dissenting

voices from expressing their opinions. Congressmen

have one overriding objective: re-election. And they

decades of research has concluded that the major effect of the

1974 reforms was to help incumbents ward off challengers.” J.

Miller, Monopoly Politics (Hoover Institution Press, 1999) at 89. 
24

have one secondary goal: preventing their

constituencies from pressuring them in how to vote,

which causes at least some voters to be annoyed with

them. The public rationale for laws like BCRA is

always high-sounding — that “the people” might be

better able to evaluate the message by knowing who is

communicating — but this is unconstitutional

subterfuge. See Miami Herald (rejecting government

interest in free flow of information as rationale for

imposing reply requirement on press). Just as King

George wanted to know the name of the person

identified as “An Englishman” who published Common

Sense, Senators McCain and Feingold wanted to know

who would dare to communicate with their

constituents about their activities in Washington, D.C. 

Fourth, the rules on electioneering

communications are not campaign finance laws at all. 

Incumbents have designed campaign finance laws and

the rules on electioneering communications to benefit

incumbents and allow them to be able to vote and act

as they please, with as little interference from their

constituencies as possible. See generally J. Miller,

Monopoly Politics at 89, 127-29. BCRA regulates issue

ads with neither express advocacy, nor the functional

equivalent of express advocacy. BCRA restricts 

grassroots lobbying which is not electioneering. BCRA

regulates efforts by the public, including nonprofit

organizations like the Independence Institute, to put

pressure on congressmen to vote a particular way in

their capacity as legislators. This supposed connection

to elections is a fraudulent justification for the rules on

independent expenditures, as those rules were
25

designed for a very different purpose than to fight quid

pro quo corruption. 

The Jurisdictional Statement of Independence

Institute repeatedly invokes the term “informational

interests” of the U.S. Government, arguing that the

government’s interests are not as compelling with

respect to issue advocacy as they are with campaign

spending. See, e.g., Jurisdictional Statement at 10-11,

20-23. Certainly this is true. But these amici suggest

that the interests that Congress was pursuing in the

enactment of BCRA were not wholesome, not

beneficial to the interests protected by the First

Amendment, and actually were in pursuit of a wholly

illegitimate interest of members of Congress — the

desire to shield themselves from political criticism and

pressure in their official votes. And, this has a

secondary effect well known to members of Congress

— if the public knew their views, then someone would

disagree, and votes would be lost. Better for the

incumbent that the grassroots lobbying never occur. 

Congress would much prefer to vote on matters of

controversy when the public is not watching, as

revealed inadvertently in the government’s defense of

the facial challenge to BCRA leading to the Supreme

Court’s decision in McConnell v. FEC, 540 U.S. 93

(2003). There, the government’s briefs before the

three-judge court revealed that “the inducements of

money” must be eliminated from the shaping of public

policy so that the true “national interest” may be

served. Brief of Defendants at 1. Without grassroots

lobbying, members of Congress have greater latitude

to determine exactly what that “national interest” is
26

without interference from the people. The right to

criticize and petition government anonymously is not

new — it is a right that traces its ancestry in the

United States to the 1735 trial of printer and

government critic John Peter Zenger, and to Thomas

Paine’s decision in 1775 to publish the pamphlet

Common Sense under the pseudonym “An

Englishman.” 

When incumbent congressmen establish rules

governing how the American people can communicate

about legislators’ behavior, the courts owe Congress no

deference. Rather, courts have a duty to the

Constitution to strike down such laws which punish

legitimate political discourse. When members of

Congress enact legislation to immunize themselves

from public criticism and input, they should be entitled

to no deference whatsoever. As Justice Kennedy

explained in his dissent in McConnell, “Our precedents

teach, above all, that Government cannot be trusted to

moderate its own rules for suppression of speech.” 

McConnell at 288. 
27

CONCLUSION

For the reasons set out above, the Court should

note probable jurisdiction.

Respectfully submitted,

JOSEPH W. MILLER WILLIAM J. OLSON*

U.S. Justice Foundation HERBERT W. TITUS

932 D Street, Ste. 2 JEREMIAH L. MORGAN 

Ramona, CA 92065 ROBERT J. OLSON 

Attorney for Amicus Curiae JOHN S. MILES

U.S. Justice Foundation WILLIAM J. OLSON, P.C.

370 Maple Ave. W., Ste. 4

MARK J. FITZGIBBONS Vienna, VA 22180-5615

9625 Surveyor Court (703) 356-5070

Suite 400 wjo@mindspring.com 

Manassas, VA 20110

Attorneys for Amici Curiae

*Counsel of Record

January 9, 2017