ORAL ARGUMENT NOT YET SCHEDULED 

No. 14-5249 

_______________________________________________ 

UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

_______________________________________________ 

INDEPENDENCE INSTITUTE, 

Plaintiff-Appellant, 

v. 

FEDERAL ELECTION COMMISSION, 

Defendant-Appellee, 

_______________________________________________ 

On Appeal from the United States District Court 

for the District of Columbia 

_______________________________________________ 

BRIEF FOR THE FEDERAL ELECTION COMMISSION 

_______________________________________________ 

 Lisa J. Stevenson 

 Deputy General Counsel — Law 

 lstevenson@fec.gov 

 Kevin Deeley 

 Acting Associate General Counsel 

 kdeeley@fec.gov 

 Erin Chlopak 

 Acting Assistant General Counsel 

 echlopak@fec.gov 

Greg J. Mueller 

Attorney 

gmueller@fec.gov 

Federal Election Commission 

999 E Street, NW 

Washington, DC 20463 

(202) 694-1650 

May 8, 2015 

USCA Case #14-5249 Document #1551586 Filed: 05/08/2015 Page 1 of 71
APPELLEE FEDERAL ELECTION COMMISSION’S 

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES 

Pursuant to this Court’s Order of October 22, 2014, and D.C. Circuit 

Rule 28(a)(1), appellee Federal Election Commission (“Commission”) submits 

its Certificate as to Parties, Rulings, and Related Cases. 

(A) Parties and Amici. Independence Institute was the plaintiff in the district 

court and is the appellant in this Court. The Commission was the defendant in 

the district court and is the appellee in this Court. 

(B) Rulings Under Review. Independence Institute appeals the October 6, 

2014, order of the United States District Court for the District of Columbia 

(Kollar-Kotelly, J.) denying its application for a three-judge court, entering 

judgment for the Commission, and dismissing the action. 

(C) Related Cases. The Commission knows of no related cases. 

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TABLE OF CONTENTS 

 Page 

COUNTERSTATEMENT OF JURISDICTION ................................................ 1 

COUNTERSTATEMENT OF THE ISSUES ...................................................... 1 

STATUTES AND RULES .................................................................................. 2 

COUNTERSTATEMENT OF THE CASE ......................................................... 2 

I. STATUTORY AND REGULATORY BACKGROUND ....................... 2 

A. The Origin of “Electioneering Communications” .......................... 2 

B. The Supreme Court’s Resolution of Facial and As-Applied 

Constitutional Challenges to BCRA’s Electioneering 

Communications Provisions ............................................................ 7 

II. INDEPENDENCE INSTITUTE’S CHALLENGE TO BCRA’S 

 ELECTIONEERING COMMUNICATION PROVISIONS ................. 12

SUMMARY OF ARGUMENT ......................................................................... 17 

STANDARDS OF REVIEW ............................................................................. 19 

ARGUMENT ..................................................................................................... 20 

I. THE DISTRICT COURT FOLLOWED THE SUPREME COURT’S 

APPLICATION OF INTERMEDIATE SCRUTINY TO THE 

CHALLENGED DISCLOSURE PROVISIONS .................................... 20 

II. THE COURT BELOW PROPERLY ACCEPTED THE SUPREME 

COURT’S CONCLUSION THAT THE ELECTIONEERINGCOMMUNICATIONS DISCLOSURE PROVISION FURTHERS 

THE IMPORTANT INTEREST IN PROVIDING THE 

ELECTORATE WITH INFORMATION ............................................... 22 

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III. THE DISTRICT COURT ACCURATELY DETERMINED THAT 

SUPREME COURT PRECEDENT DICTATES UPHOLDING 

BCRA’S DISCLOSURE REQUIREMENTS AS APPLIED TO 

ADVERTISEMENTS THAT ARE NOT FUNCTIONALLY 

EQUIVALENT TO EXPRESS CANDIDATE ADVOCACY ............... 22 

A. The Disclosure Requirements Are Substantially Related to the 

Informational Interest in This Context .......................................... 22 

B. Citizens United’s Holding Is Not Limited to Ads for 

 Commercial Transactions .............................................................. 27 

 

C. There Is an Important Interest in Disclosure Related to 

Advertisements That Reference Both Candidates 

and Legislation .............................................................................. 28 

 D. Citizens United Is Binding Precedent ........................................... 34 

 E. The Informational Interest Does Not Vary According to an 

 Advertiser’s Tax Status ................................................................. 37

IV. AUTHORITIES REGARDING VERY DIFFERENT PROVISIONS 

SUCH AS FINANCING RESTRICTIONS AND IN-PERSON 

LEAFLETTING ARE INAPPOSITE ..................................................... 41 

V. BCRA’S DISCLOSURE REQUIREMENTS DO NOT 

UNCONSTITUTIONALLY BURDEN INDEPENDENCE 

INSTITUTE ............................................................................................. 44 

A. This Case Involves No Concern of Threats, Harassment, 

or Reprisals .................................................................................... 44 

B. Electioneering Communications Disclosure Requirements 

Would Not Apply to Comparable Ads Independence Institute 

May Wish to Run Now and It Has Not Established That It 

Will Be Subject to the Requirements Again ................................. 46

C. Van Hollen Is Irrelevant to Independence Institute’s Claims ....... 47 

 

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VI. A THREE-JUDGE COURT WAS CLEARLY UNWARRANTED 

HERE ....................................................................................................... 51 

CONCLUSION .................................................................................................. 57 

 

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TABLE OF AUTHORITIES 

Cases 

A.J. McNulty & Co., Inc. v. Sec’y of Labor, 283 F.3d 328 

 (D.C. Cir. 2002) ....................................................................................... 51 

Buckley v. Am. Constitutional Law Found., Inc., 525 U.S. 182 (1999) ...... 31, 44 

Buckley v. Valeo, 519 F.2d 821 (D.C. Cir. 1975) (en banc) ........................ 42, 43 

Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam) ............................... 3, 4, 20, 45 

Cao v. FEC, 688 F. Supp. 2d 498 (E.D. La. 2010) ..................................... 31, 55 

*Citizens United v. FEC, 

 558 U.S. 310 (2010)................ 3, 5, 11-12, 20-24, 26-30, 33, 36-38, 45, 49 

Citizens United v. FEC, 530 F. Supp. 2d 274 (D.D.C. 2008) ............................ 25 

Ctr. for Competitive Politics v. Harris, No. 14-15978, __ F.3d __, 

2015 WL 1948168 (9th Cir. May 1, 2015) ........................................ 39, 45 

 

Ctr. for Individual Freedom v. Madigan, 697 F.3d 464 

 (7th Cir. 2012) ............................................................................. 30, 35, 38 

FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. 238 (1986) .......... 4, 5, 12 

FEC v. Wisconsin Right to Life, Inc., 551 U.S. 449 (2007) ....................... 8, 9, 46 

*Feinberg v. Fed. Deposit Ins. Corp., 522 F.2d 1335 

 (D.C. Cir. 1975) ........................................................................... 13, 19, 53 

Fla. League of Prof’l Lobbyists, Inc. v. Meggs, 87 F.3d 457 

 (11th Cir. 1996) ...................................................................................... 33 

Free Speech v. FEC, 720 F.3d 788 (10th Cir. 2013) ......................................... 30 

First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765 (1978) ................................. 32 

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Goland v. United States, 903 F.2d 1247 (9th Cir. 1990) ................................... 55 

Goldstein v. Cox, 396 U.S. 471 (1970) .............................................................. 52 

Gonzalez v. Automatic Emps. Credit Union, 419 U.S. 90 (1974) ..................... 52 

Hispanic Leadership Fund, Inc. v. FEC, 897 F. Supp. 2d 407 

(E.D. Va. 2012) ........................................................................................ 31 

 

Holmes v. FEC, No. 14-1243, __ F. Supp. 3d __, 2015 WL 1778778 

(D.D.C. Apr. 20, 2015) ............................................................................ 54 

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

In re Cao, 619 F.3d 410 (5th Cir. 2010) ............................................................ 55 

In re Grand Jury Proceedings, 633 F.2d 754 (9th Cir.1980) ........................... 38 

Judicial Watch, Inc. v. United States Secret Serv., 726 F.3d 208 

(D.C. Cir. 2013) ....................................................................................... 19 

Khachaturian v. FEC, 980 F.2d 330 (5th Cir. 1992) ......................................... 54 

Khadr v. United States, 529 F.3d 1112 (D.C. Cir. 2008) .................................. 46 

Libertarian Nat’l Comm. v. FEC, 930 F. Supp. 2d 154 (D.D.C. 2013) ............ 54 

Majors v. Abell, 361 F.3d 349 (7th Cir. 2004)................................................... 44 

*McConnell v. FEC, 540 U.S. 93 (2003) .......... 5, 7, 20, 22-23, 27, 29, 41, 45, 50 

McCutcheon v. FEC, 134 S. Ct. 1434 (2014) .................................................... 52 

McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995) .................. 43, 44 

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

 (8th Cir. 1985) (per curiam) .................................................................... 33 

MTM, Inc. v. Baxley, 420 U.S. 799 (1975) (per curiam) ................................... 53 

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Nat’l Ass’n of Mfrs. v. Taylor, 582 F.3d 1 (D.C. Cir. 2009) ............................. 33 

Nat’l Org. for Marriage v. McKee, 649 F.3d 34 (1st Cir. 2011) ....................... 30 

NCAA v. Bd. of Regents of the Univ. of Okla., 468 U.S. 85 (1984) ................... 38 

Real Truth About Abortion v. FEC, 681 F. 3d 544 (4th Cir. 2012) ................... 30 

Schonberg v. FEC, 792 F. Supp. 2d 14 

(D.D.C. 2011) (per curiam) ..................................................................... 53 

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

(D.C. Cir. 2005) ....................................................................................... 40 

 

United States v. Harriss, 347 U.S. 612 (1954) ............................................. 32-33 

Van Hollen v. FEC, No. 11-0766, __ F. Supp. 3d __, 

 2014 WL 6657240 (D.D.C. Nov. 24, 2014) ................................ 10, 47, 49 

Wagner v. FEC, 717 F.3d 1007 (D.C. Cir. 2013) (per curiam) ......................... 54 

Wis. Right to Life, Inc. v. Barland, 751 F.3d 804 (7th Cir. 2014) ................ 34-36 

Wis. Right to Life, Inc. v. FEC, 466 F. Supp. 2d 195 (D.D.C. 2006) ................ 56 

Zimmerman v. Cambridge Credit Counseling Corp., 409 F.3d 473 

 (1st Cir. 2005) .......................................................................................... 38 

Statutes and Regulations 

Federal Election Campaign Act (“FECA”), 52 U.S.C. §§ 30101- 

30146 ......................................................................................................... 2 

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

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

52 U.S.C. § 30101(11) ......................................................................................... 6 

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

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

52 U.S.C. § 30104(f) ......................................................................................... 6-7 

52 U.S.C. § 30104(f)(1)-(2) ........................................................................ 5-6, 13 

52 U.S.C. § 30104(f)(2)(E) ...................................................................... 6, 10, 48 

52 U.S.C. § 30104(f)(2)(F) .................................................................................. 7 

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

52 U.S.C. § 30104(f)(3)(A)(i) ........................................................................... 6,7 

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

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

52 U.S.C. § 30110 .................................................................................... 1, 13, 53 

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

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

52 U.S.C. § 30118 ............................................................................................ 4, 7 

52 U.S.C. § 30118(a) ................................................................................... 3, 5, 6 

52 U.S.C. § 30118(b)(2) ................................................................................... 5-6 

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

52 U.S.C. § 30120 ................................................................................................ 7 

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26 U.S.C. § 501(c)(3) ................................................................................... 12, 39 

26 U.S.C. § 501(c)(4) ................................................................................... 12, 39 

26 U.S.C. § 6104(d)(3)(A) ................................................................................. 39 

28 U.S.C. § 1291 .................................................................................................. 1 

28 U.S.C. § 1294(1) ............................................................................................. 1 

28 U.S.C. § 1331 .................................................................................................. 1 

28 U.S.C. § 2284 ................................................................................................ 52 

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

11 C.F.R. § 104.20(c)(7) ................................................................................ 9, 10 

11 C.F.R. § 104.20(c)(7)(ii) ............................................................................... 48 

11 C.F.R. § 104.20(c)(9) ................................................................................ 9, 51

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

§ 102(g)(3), 90 Stat. 475 (1976) ................................................................ 4 

BCRA § 403, 116 Stat. 113 ............................................................................... 52 

BCRA § 403(a), 116 Stat. 113 ..................................................................... 52, 54 

BCRA § 403(a)(3), 116 Stat. 114 ................................................................. 52-53 

BCRA § 403(d)(2), 116 Stat. 114 ...................................................................... 52 

 

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Miscellaneous 

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-finallyquietly-outed-nra-funded-%E2%80%9Cindependent%E2%80%9 

D-scholar (last visited May 5, 2015) ....................................................... 29 

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-challengingnew-colo-gun-control-laws/ (last visited May 5, 2015) .......................... 29 

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GLOSSARY 

APA Administrative Procedure Act 

BCRA Bipartisan Campaign Reform Act 

FEC Federal Election Commission 

FECA Federal Election Campaign Act 

J.A. Joint Appendix 

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COUNTERSTATEMENT OF JURISDICTION 

 On October 6, 2014, the district court issued a final order denying 

Independence Institute’s application for a three-judge court and entering judgment 

in favor of the Commission. (Joint Appendix (“J.A.”) 36-38; see J.A. 34-35.) The 

district court had jurisdiction over this action under 28 U.S.C. § 1331 and to review 

for eligibility under 52 U.S.C. § 30110 note.1

 Independence Institute timely 

appealed on October 8, 2014. (J.A. 5.) This Court has jurisdiction from that final 

judgment under 28 U.S.C. §§ 1291, 1294(1). Independence Institute’s challenge 

relating to a particular advertisement it wished to run in advance of the 2014 

federal elections is now moot and the organization has failed to date to meet its 

burden of establishing that it satisfies the exception for matters that are capable of 

repetition yet evading review. See infra pp. 46-47. 

COUNTERSTATEMENT OF THE ISSUES 

Where the Supreme Court has facially upheld the “electioneering 

communication” disclosure provision in the Bipartisan Campaign Reform Act 

(“BCRA”) and rejected an as-applied challenge which contended that the provision 

could not constitutionally extend beyond express candidate advocacy or its 

functional equivalent, did the district court properly reject another such as-applied 

                                                      

1

 Effective September 1, 2014, the federal campaign finance provisions 

formerly codified in Title 2 of the United States Code were recodified in a new 

Title 52. 

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challenge about an advertisement that Independence Institute wished to broadcast 

without the applicable donor disclosure and properly deny the organization’s 

application for a three-judge court? 

STATUTES AND RULES 

The relevant provisions are included in the Addendum to Appellant 

Independence Institute’s Opening Brief (“Appellant’s Br.”). 

COUNTERSTATEMENT OF THE CASE 

I. STATUTORY AND REGULATORY BACKGROUND 

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 (“FECA”), codified at 52 

U.S.C. §§ 30101-30146, including the amendments added by BCRA. The 

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

§ 30106(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). 

A. The Origin of “Electioneering Communications” 

FECA limits the amount individuals may contribute to candidates, their 

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

also prohibits corporations and labor organizations from making contributions to 

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

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separate segregated funds (also known as political action committees). Id. 

§§ 30118(a), (b)(2)(C).2

 And, before the Supreme Court’s decision in Citizens 

United v. FEC, 558 U.S. 310 (2010), 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.” 52 U.S.C.

§ 30101(9)(A)(i); see id. § 30118(a). FECA also requires periodic disclosure of 

contributions and certain expenditures and disbursements to the FEC, which, in 

turn, makes the information publicly available. Id. § 30104. 

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

and disclosure requirements against a facial challenge, but the Court struck down 

FECA’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 and disclosure requirements for expenditures by any person “relative 

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

invalidating those provisions on vagueness grounds and applied them “only to 

expenditures for communications that in express terms advocate the election or 

                                                      

2

 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). 

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defeat of a clearly identified candidate for federal office.” Id. at 44, 79 (footnote 

omitted). 

Following Buckley, Congress amended FECA to define an “independent 

expenditure” as “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)). FECA 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). 

Buckley did not consider the separate FECA provision prohibiting 

corporations and labor organizations generally from making independent 

expenditures using their general treasury funds, 52 U.S.C. § 30118. Following the 

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

corporations and unions generally could finance independent communications that 

discussed candidates with general treasury funds as long as they stopped short of 

express advocacy. In FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. 238 

(1986), however, the Supreme Court held that certain incorporated advocacy 

organizations — which were formed for the sole purpose of promoting political 

ideas, did not engage in business activities, and did not accept contributions from 

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for-profit corporations or unions — could not constitutionally be barred from using 

general treasury funds to make independent expenditures. Id. at 263-64. 

By the end of the 1990s, groups were spending millions of dollars on ads 

that avoided words of express advocacy and ostensibly advocated for or against an 

issue, but in essence urged the election or defeat of federal candidates. See 

McConnell v. FEC, 540 U.S. 93, 126-128 (2003) overruled in part by Citizens 

United v. FEC, 558 U.S. 310, 365 (2010). 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. 

To address this and other developments in federal campaign finance, 

Congress enacted BCRA in 2002, which, inter alia, imposed new financing 

restrictions and disclosure requirements for “electioneering communications.” 

BCRA §§ 201-204, 116 Stat. 88-90, 52 U.S.C. §§ 30104(f)(1)-(2), 30118(a), 

(b)(2); see also McConnell, 540 U.S. at 126. 

BCRA defines an “electioneering communication” as 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); 11 C.F.R. § 100.29(a)(2). BCRA prohibited the financing of 

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electioneering communications with corporate or union general treasury funds. 

52 U.S.C. §§ 30104(f)(3)(A)(i), 30118(a), (b)(2). 

Congress also required disclosure concerning the sources and financing of 

electioneering communications. Any “person” (defined to include any corporation, 

labor organization, or other group, 52 U.S.C. § 30101(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). The information required on the 

statement includes identification of the person making the electioneeringcommunication disbursement and the amount and date of certain disbursements. 

52 U.S.C. § 30104(f)(1), (2)(A)-(C). 

BCRA provides two options for disclosing information about the funds used 

to finance electioneering communications. If the disbursements were paid from a 

segregated bank account that contains only funds contributed directly to that 

account for electioneering communications (and solely by individual United States 

citizens, nationals, or lawful permanent residents), the statute requires disclosure 

only of the names and addresses of contributors that gave a total of $1,000 or more 

to the account between the beginning of the preceding calendar year and the 

disclosure date. 52 U.S.C. § 30104(f)(2)(E). Alternatively, if the disbursements 

were not paid with funds from such an account, the statute requires disclosure of 

the names and addresses of all contributors that gave a total of $1,000 or more to 

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the person making the disbursement between the beginning of the preceding 

calendar year and the disclosure date. Id. § 30104(f)(2)(F). 

B. The Supreme Court’s Resolution of Facial and As-Applied 

Constitutional Challenges to BCRA’s Electioneering 

Communications Provisions 

When BCRA’s electioneering communication provisions were challenged as 

facially unconstitutional, the Supreme Court upheld the statutory definition of 

“electioneering communication” at 52 U.S.C. § 30104(f)(3)(A)(i), the related 

disclosure provision at 52 U.S.C. § 30104(f), and (initially) the related spending 

prohibitions at 52 U.S.C. §§ 30118 and 30120. See McConnell, 540 U.S. at 194, 

201-02, 207-08. The Court rejected the contention that the statutory definition of 

“electioneering communication” was infirm because it was not limited to 

“communications expressly advocating the election or defeat of particular 

candidates.” Id. at 189-90. Buckley, the Court found, had not established a 

“constitutionally mandated line” between express candidate advocacy and issue 

advocacy. Id. 189-90 (explaining that Buckley’s “express advocacy restriction was 

an endpoint of statutory interpretation, not a first principle of constitutional law”). 

The Court further observed that unlike FECA’s definition of “expenditure,” 

BCRA’s definition of “electioneering communication” did not raise any vagueness 

concerns; on the contrary, its elements “are both easily understood and objectively 

determinable.” Id. at 194.

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As to BCRA’s disclosure requirements, eight Justices agreed that such 

requirements 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 (brackets and internal quotation marks omitted). The Court thus held that 

“Buckley amply supports application of [BCRA’s] disclosure requirements to the 

entire range of ‘electioneering communications.’” Id. at 196. 

Four years after McConnell, in FEC v. Wisconsin Right to Life, Inc., 551 

U.S. 449 (2007), the Supreme Court considered an as-applied challenge to 

BCRA’s prohibition on the financing of electioneering communications 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. 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. Before the Court’s 

decision in Wisconsin Right to Life, only corporations that qualified under the 

criteria the Court had established in Massachusetts Citizens for Life could make 

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electioneering communications, see supra pp. 4-5, but in Wisconsin Right to Life, 

the Court recognized the constitutional right of all corporations and unions to 

finance electioneering communications that did not contain express advocacy or its 

functional equivalent. See 551 U.S. at 480-81. The Court in Wisconsin Right to 

Life did not address BCRA’s disclosure provisions. 

Following the Supreme Court’s decision in Wisconsin Right to Life, the 

Commission promulgated regulations that, inter alia, addressed the new category 

of permissible electioneering communications financed with corporate or union 

treasury funds. Consistent with the statutory requirements for unincorporated 

entities, the Commission’s regulations provide that when a corporation finances an 

electioneering communication with funds from a “segregated bank account 

established to pay for electioneering communications,” the corporation paying for 

the communication need only identify those individuals who contributed $1,000 or 

more to the account itself. 11 C.F.R. § 104.20(c)(7). In the absence of a 

segregated account, the Commission’s regulations require that a corporation must 

report “the name and address of each person who made a donation aggregating 

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

communications.” 11 C.F.R. § 104.20(c)(9) (emphasis added). 

A district court recently found section 104.20(c)(9), the regulation specific 

to corporations and unions that do not employ a segregated account to finance 

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electioneering communications, to be invalid and its decision is currently the 

subject of a separate appeal in this Court. Van Hollen v. FEC, No. 11-0766, __ F. 

Supp. 3d __, 2014 WL 6657240 (D.D.C. Nov. 25, 2014), appeal docketed, No. 15-

5016 (D.C. Cir. Jan. 22, 2015). The court in Van Hollen held that the provision 

fails arbitrary and capricious review under the Administrative Procedure Act 

(“APA”) and concluded, inter alia, that the rule could not be justified as “fairly 

balanc[ing] the need for disclosure against sensitive First Amendment and privacy 

concerns,” because “those arguments have been foreclosed by the Supreme Court.” 

Id. at *24. Van Hollen did not alter the portions of the statute and Commission 

regulations permitting corporations to finance electioneering communications and 

limit the extent of donor disclosure by paying for their electioneering 

communications from a segregated electioneering-communications account. See 

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

In 2010, the Supreme Court revisited the constitutionality of prohibitions on 

using corporate and union general treasury funds to finance independent 

expenditures and electioneering communications, as well as the statutory 

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 

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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 essentially “a featurelength negative advertisement that urge[d] viewers to vote against Senator Clinton 

for President.” Id. at 325. Applying the “objective” “functional-equivalent test” 

articulated in the controlling opinion in Wisconsin Right to Life, 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. 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 specifically as applied to both Citizens United’s movie and 

its proposed advertisements. 558 U.S. at 366-71. Citizens United had sought to 

“import . . . into BCRA’s disclosure requirements” a distinction similar to 

Wisconsin Right to Life’s limit on permissible financing restrictions, contending 

that “the disclosure requirements . . . must be confined to speech that is the 

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functional equivalent of express advocacy.” Id. at 368-69. Because “disclosure is 

a less restrictive alternative to more comprehensive regulations of speech,” the 

Court “reject[ed]” that contention. Id. at 369 (citing Massachusetts Citizens for 

Life, 479 U.S. at 262). 

II. INDEPENDENCE INSTITUTE’S CHALLENGE TO BCRA’S 

ELECTIONEERING COMMUNICATION PROVISIONS 

Independence Institute is a nonprofit corporation that is organized and 

claiming exemption from income taxes under 26 U.S.C. §§ 501(c)(3), and that 

“‘conducts research and educates the public on various aspects of public policy — 

including taxation, education policy, health care, and justice policy.” (J.A. 38-39.) 

On September 2, 2014, Independence Institute filed a complaint seeking 

declaratory and injunctive relief regarding the scope of BCRA’s definition of 

“electioneering communication” and the disclosure requirements attendant to such 

communications. (J.A. 32.) The organization alleged an intent to finance and 

publicly distribute a radio advertisement that clearly mentioned former Colorado 

Senator Mark Udall, who sought reelection in the November 2014 general election, 

within 60 days of that election. (J.A. 38-39.) Its planned advertisement would 

have constituted an “electioneering communication” and triggered the statutory 

disclosure requirements for such communications if aired during those two months 

before the election. (J.A. 39.) Independence Institute wanted to solicit 

contributions of over $1,000 from individual donors specifically to finance this 

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advertisement, but preferred not to publicly disclose the identity of any of its 

donors. (J.A. 13, 29-30, 31 (Compl. ¶¶ 36-38, 118, 128).) 

Independence Institute also applied for a special judicial-review provision 

that provides for a three-judge court to decide substantial constitutional challenges 

to BCRA, and for such decisions to be directly appealable to the Supreme Court. 

52 U.S.C. § 30110 note; Feinberg v. Fed. Deposit Ins. Corp., 522 F.2d 1335, 1338-

39 (D.C. Cir. 1975). And it also filed a motion for a preliminary injunction. (J.A. 

2.) Independence Institute made these initial filings just a few days before the 

electioneering-communication period was to begin. 

Within nine days after Independence Institute filed its complaint and other 

requests in the district court, the parties agreed to an expedited briefing schedule 

and, at the court’s suggestion, to consolidate briefing on the preliminary-injunction 

motion with merits briefing. (J.A. 3-4, 34-35, 39-40.) The parties further 

stipulated, and the district court ordered, that “‘this case presents an as-applied 

challenge to 52 U.S.C. § 30104(f)(1)-(2) based upon the content of the 

Independence Institute’s intended communication, and not the possibility that its 

donors will be subject to threats, harassment, or reprisals.’” (J.A. 34, 40.) 

Independence Institute argued that its proposed advertisement “is genuine 

issue speech” and that the statutory definition of “electioneering communication” 

is unconstitutionally overbroad because it is not limited to communications 

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containing “an appeal to vote for or against a specific candidate.” (J.A. 29 (Compl. 

¶¶ 113, 116).) It further argued that BCRA’s disclosure requirements for 

electioneering communications could not 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.” (J.A. 30 (Compl. ¶ 122).) 

The Commission opposed Independence Institute’s application for a threejudge court and its claims on the merits. On October 6, 2015, when the election 

was still approximately one month away, the district court issued its order and 22-

page opinion. The district court agreed with the Commission that this case is 

“squarely foreclosed” by “the Supreme Court’s clear instructions in Citizens 

United” and rejected all of Independence Institute’s attempts to limit or distinguish 

that decision. (J.A. 42, 44-52, 57.) 

First, the court explained the Supreme Court’s holding in Citizens United — 

that the statutory disclosure requirements for electioneering communications could 

constitutionally be applied to communications that lack express advocacy or “the 

functional equivalent thereof” — and rejected Independence Institute’s attempt to 

dismiss that holding as non-binding “dicta.” (J.A. 43-47.) 

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Second, the court rejected Independence Institute’s attempt to limit Citizens 

United’s disclosure holding to nonprofit entities organized under section 501(c)(3) 

of the Internal Revenue Code. (J.A. 47-48.) Independence Institute’s “effort to 

draw a line between different types of nonprofit organizations” lacked any support 

in Citizens United or any other “authority [holding] that such a distinction would 

be required by the First Amendment.” (J.A. 48.) 

Third, the court rejected as irrelevant Independence Institute’s emphasis on 

the lack of express candidate advocacy (or the functional equivalent of such 

advocacy) in its proposed advertisement, as well as Independence Institute’s 

emphasis on the commercial nature of the advertisements at issue in Citizens 

United. (J.A. 48-50.) Such characteristics do not render any less controlling “the 

Supreme Court’s clear conclusion: whether speech is express advocacy or issue 

advocacy does not affect the lawful applicability of BCRA’s disclosure 

requirements.” (J.A. 50.) 

Fourth, the court rejected as “a distinction without a difference” the fact that 

the ads at issue in Citizens United “could be considered critical of then-candidate 

Hillary Clinton, while the advertisement in this action, on its face, says nothing 

positive or negative about a candidate for Federal office.” (J.A. 50.) “[N]othing in 

Citizens United limit[ed] the disclosures holding to electioneering communications 

that are pejorative (or, alternatively, complimentary) on their face.” (J.A. 52.) 

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The district court also rejected Independence Institute’s attempt to relitigate 

a claim that BCRA’s disclosure requirements are overbroad, noting that 

overbreadth “is fundamentally a facial claim” and that “McConnell resolved the 

overbreadth question . . . over ten years ago.” (J.A. 55 & n.16.) 

Finally, the Court explained why Independence Institute’s purported 

alternative authorities “[i]n fact . . . do not indicate that” BCRA’s “disclosure 

requirements may be applied constitutionally only to communications that contain 

express advocacy, or its functional equivalent.” (J.A. 52.) The court found that 

“the other precedent [Independence Institute] seeks to enlist in its cause is either 

inapposite or, upon examination, actually supportive of the application of the 

disclosure requirements of BCRA in these circumstances.” (J.A. 58.) 

Because Independence Institute’s claims “can be distilled to the application 

of the Supreme Court’s clear instructions in Citizens United,” and such claims seek 

“the same relief that has already been foreclosed by Citizens United,” the district 

court denied the application for a three-judge court and entered judgment for the 

Commission. (J.A. 36, 42-43, 57-58.) 

Independence Institute timely appealed that judgment. The November 2014 

election has now passed, Udall is no longer a candidate, and Independence 

Institute’s proposed advertisement would not qualify as an electioneering 

communication if aired at this time. 

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SUMMARY OF ARGUMENT 

The decision below is correct and should be affirmed in its entirety. The 

Supreme Court has twice upheld BCRA’s disclosure requirements for 

electioneering communications and explicitly rejected the argument, which 

Independence Institute seeks to relitigate here, that such disclosure requirements 

must be limited to communications that are express candidate advocacy or its 

equivalent. As the court below carefully and accurately explained, the Supreme 

Court’s unambiguous McConnell and Citizens United decisions foreclose this 

constitutional challenge. Disclosure of the funders of preelection broadcasts 

referencing federal candidates furthers the important government interest in 

providing information to voters, enabling them to make informed choices in the 

political marketplace. Independence Institute’s assorted attempts to limit, 

disregard, or distinguish the Supreme Court’s decisions lack any merit, as the 

district court also thoroughly and correctly explained, and Independence Institute’s 

proffered alternative authorities are inapposite or actually supportive of applying 

the challenged disclosure requirements here. 

Independence Institute’s appellate brief confirms the propriety of the 

decision below, while revealing additional flaws of its claims. It completely 

ignores the statutory right that it and other organizations have to limit the scope of 

disclosure for their electioneering communications by financing such 

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communications from a segregated bank account. And its erroneous assertion 

(Appellant’s Br. 52) that the decision below somehow precludes future as-applied 

challenges to BCRA’s disclosure requirements simply ignores the availability of 

as-applied challenges based on a reasonable probability of threats, harassment, or 

reprisals of an organization’s members — claims that Independence Institute 

expressly waived in this case. 

Independence Institute is currently free to air the only advertisement at issue 

here without triggering the temporally limited disclosure requirements it 

challenges. It nevertheless continues to hang this entire constitutional challenge on 

this specific ad, thereby failing to meet its burden of establishing that it qualifies 

for an exception to mootness because it will be subject to the same requirements 

again. 

Independence Institute’s latest effort to revive this stale constitutional 

challenge — by emphasizing the recent district court decision in Van Hollen v. 

FEC — is also unavailing. The court in Van Hollen invalidated section 

104.20(c)(9) of the Commission’s regulations, which provided that corporations 

and unions that do not employ a segregated account to finance electioneering 

communications need only disclose donors who donated at least $1,000 “for the 

purpose of furthering electioneering communications.” That district court decision 

concerning an FEC regulation has no bearing on this statutory challenge, which is 

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foreclosed by Supreme Court precedent. Section 104.20(c)(9) did not even exist 

when the Supreme Court upheld the statutory disclosure requirements for 

electioneering communications on their face in McConnell. And the regulation 

was not mentioned by the eight Justices in Citizens United who similarly upheld 

the challenged statutory requirements and rejected a different party’s attempt to 

limit disclosure to express candidate advocacy and its functional equivalent. 

The parties and the district court all agree that a request for a three-judge 

court is properly denied (and summary judgment is properly granted) where the 

constitutional claims are obviously without merit or their unsoundness is clear 

from previous Supreme Court decisions. The district court correctly concluded 

that this is just such a case and its denial of the application for a three-judge court 

and judgment in favor of the Commission should be affirmed. 

STANDARDS OF REVIEW 

This Court reviews the district court’s summary judgment ruling de novo. 

Judicial Watch, Inc. v. United States Secret Serv., 726 F.3d 208, 215 (D.C. Cir. 

2013). And it reviews the denial of the request for a three-judge court by 

evaluating whether “the questions raised were substantial.” Feinberg, 522 F.2d at 

1339. 

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ARGUMENT 

I. THE DISTRICT COURT FOLLOWED THE SUPREME COURT’S 

APPLICATION OF INTERMEDIATE SCRUTINY TO THE 

CHALLENGED DISCLOSURE PROVISIONS 

The court below correctly recognized that the disclosure provisions at issue 

here are subject to “‘exacting scrutiny,’” which “requires a ‘substantial relation’ 

between the disclosure requirement and a ‘sufficiently important’ governmental 

interest.” (J.A. 55-56 (quoting Citizens United, 558 U.S. at 366-67 (quoting 

Buckley, 424 U.S. at 64, 66)).) Independence Institute concedes that the statutory 

provisions at issue here impose disclosure requirements, not financing restrictions, 

and that exacting scrutiny is the applicable standard. (Appellant’s Br. 27.) 

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). As the court below 

correctly noted, the Supreme Court has thus consistently applied exacting scrutiny 

to disclosure requirements, including in Buckley and, in McConnell and Citizens 

United, to the exact same disclosure provisions at issue here. (J.A. 56-57.) 

 

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II. THE COURT BELOW PROPERLY ACCEPTED THE SUPREME 

COURT’S CONCLUSION THAT THE ELECTIONEERINGCOMMUNICATIONS DISCLOSURE PROVISION FURTHERS THE 

IMPORTANT INTEREST IN PROVIDING THE ELECTORATE 

WITH INFORMATION 

The district court properly reiterated the Supreme Court’s repeated general 

conclusion that “‘important state interests’” sufficient to uphold disclosure laws 

include “‘providing the electorate with information, deterring actual corruption and 

avoiding any appearance thereof, and gathering the data necessary to enforce more 

substantive electioneering restrictions.’” (J.A. 53 (quoting McConnell’s discussion 

of Buckley).)3

 The district court also correctly recognized the Supreme Court’s 

conclusion in Citizens United that BCRA’s disclosure requirements for 

electioneering communications continue to serve the important informational 

interest, even after the Court had struck down the electioneering communications 

financing provisions in the same decision. (J.A. 49 (discussing Citizens United, 

558 U.S. at 369).) The Supreme Court in Citizens United declined to consider 

“‘other asserted interests’” because “‘the informational interest alone [wa]s 

sufficient to justify application’” of the disclosure provisions in that case. (J.A. 49 

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

                                                      

3

 Independence Institute’s heading contending generally that “[u]nder 

Buckley’s exacting scrutiny, the government’s only legitimate interest is 

informational” is thus incorrect. (Appellant’s Br. 30 (capitalization and bolding 

removed).) 

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III. THE DISTRICT COURT ACCURATELY DETERMINED THAT 

SUPREME COURT PRECEDENT DICTATES UPHOLDING 

BCRA’S DISCLOSURE REQUIREMENTS AS APPLIED TO 

ADVERTISEMENTS THAT ARE NOT FUNCTIONALLY 

EQUIVALENT TO EXPRESS CANDIDATE ADVOCACY 

A. The Disclosure Requirements Are Substantially Related to the 

Informational Interest in This Context 

As the district court here emphasized, McConnell held, in the specific 

context of the statutory disclosure requirements for electioneering 

communications, that the “important state interests” discussed in Buckley “apply in 

full to BCRA” and Buckley “‘amply supports application of [those] disclosure 

requirements to the entire range of ‘electioneering communications.’’” (J.A. 53 

(quoting McConnell, 540 U.S. at 196 (emphasis added by district court)).) In that 

portion of the decision, eight Justices agreed that requiring disclosure for all 

electioneering communications serves “the competing First Amendment interests 

of individual citizens seeking to make informed choices in the political 

marketplace.” McConnell, 540 U.S. at 196-97 (citation and internal quotation 

marks omitted). 

The Court acknowledged that whereas FECA had “limited the coverage of 

[its] disclosure requirement to communications expressly advocating the election 

or defeat of particular candidates,” BCRA’s definition of “‘electioneering 

communication’ is not so limited.” 540 U.S. at 189. As the court below explained 

(J.A. at 53-54), McConnell clarified that Buckley did not establish a 

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“constitutionally mandated line” between express candidate advocacy and issue 

advocacy and Buckley’s “express advocacy restriction was an endpoint of statutory 

interpretation, not a first principle of constitutional law.” McConnell, 540 U.S. at 

190. The Court found that BCRA’s precise and objective definition of 

“electioneering communication” 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.” McConnell, 540 U.S. at 194. 

Because the elements of the “electioneering communication” 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).4

 

More recently, in Citizens United, eight Justices again agreed that BCRA’s 

electioneering-communication definition is constitutional in the disclosure context, 

                                                      

4

 To the extent Independence Institute attempts (Appellant’s Br. at 56-57) to 

revisit whether the statutory definition of electioneering communication is 

“overbroad,” “McConnell resolved the overbreadth question with regard to BCRA 

section 201 over ten years ago.” (J.A. 55). Indeed, as the district court clarified, 

although Independence Institute has characterized its overbreadth claim as an “asapplied” challenge; in fact, overbreadth “is fundamentally a facial claim.” (J.A. 55 

& n.16.) The court below properly rejected Independence Institute’s attempt to 

relitigate a facial constitutional challenge already decided by the Supreme Court in 

McConnell, and reaffirmed in Citizens United. McConnell, 540 U.S. at 190-94; 

Citizens United, 558 U.S. at 368 (“[W]e now adhere to [McConnell] as it pertains 

to [BCRA’s] disclosure provisions.”).

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and held that “the public has an interest in knowing who is speaking about a 

candidate shortly before an election.” 558 U.S. at 369. The Court explicitly 

“reject[ed] th[e] contention” that the statutory disclosure requirements for 

electioneering communications “must be confined to speech that is the functional 

equivalent of express advocacy.” Id. at 368-69. 

The district court correctly held that the challenge here is “‘clearly 

foreclosed by Supreme Court precedent,’” because Independence Institute seeks to 

impose the same limitation on BCRA’s disclosure requirements that the Supreme 

Court has explicitly rejected. (J.A. 42.) Independence Institute has sometimes 

referred to the purported extent of communications it views as subject to disclosure 

as “express advocacy or the functional equivalent thereof,” (e.g., J.A. 39 

(summarizing the organization’s contentions)), and at other times repackaged that 

argument by referring to communications that are “unambiguously campaign 

related,” (e.g., Appellant’s Br. 10, 11, 17). Whichever label Independence Institute 

chooses for the erroneous disclosure standard it urges, the Supreme Court has 

rejected the argument.5

                                                      

5

 Independence Institute’s amici similarly challenge the constitutionality of 

the scope of BCRA’s disclosure provision on the basis of the identical arguments 

rejected in Citizens United. Amici surprisingly include Citizens United itself, for 

whom the claim would be precluded as a matter of res judicata if brought as a 

party. Compare Br. Amicus Curiae of Citizens United, et al. in Supp. of Appellant 

and Reversal 9-13 (arguing that BCRA’s disclosure provision unconstitutionally 

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25 

Citizens United considered the same statutory disclosure requirements in a 

context directly analogous to the circumstances here. Like the advertisement at 

issue here, 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). Indeed, Citizens 

United itself emphasized the lack of any express or implicit candidate advocacy in 

its movie ads and thus argued in favor of a standard limiting disclosure 

requirements to ads containing such advocacy.6

 

In any event, the court below correctly rejected Independence Institutes’s 

attempts to distinguish Citizens United by comparing the specific content of its 

proposed advertisement with the ads at issue in Citizens United. (J.A. 48-52.) 

                                                                                                                                                                              

requires disclosure for ads that are not equivalent to express candidate advocacy), 

with Citizens United, 558 U.S. at 368-69 (rejecting same argument). 

6 See, e.g., Reply Br. for Appellant 25, Citizens United v. FEC, No. 08-205 (S. 

Ct. Mar. 17, 2009), available at 

http://www.fec.gov/law/litigation/cu_sc08_cu_reply.pdf (describing Citizens 

United’s advertisements, one of which “informs viewers that, ‘[i]f you thought you 

knew everything about Hillary Clinton . . . wait ’til you see the movie.’ The other 

humorously presents a ‘kind word about Hillary Clinton’ from conservative 

commentator Ann Coulter — ‘[s]he looks good in a pant suit’ — and then 

describes Hillary as ‘a movie about everything else.’”; and observing that “[t]he 

advertisements do not mention an election, Senator Clinton’s candidacy for office, 

her views on political issues — or anything else remotely related to the electoral 

process”). 

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Independence Institute insists that its advertisement is “genuine issue speech” that 

“carries none of the indicia of speech which functions as express advocacy.” 

(Appellant’s Br. 11, 37 n.12.) But those characteristics are beside the point. 

There is no dispute that the proposed ad — when it was intended to be 

broadcast — would have met the objective statutory definition of an electioneering 

communication, a definition the Supreme Court has upheld. See Citizens United, 

558 U.S. at 321 (quoting definition of “electioneering communication”); see also 

supra pp. 22-24 & n.4. Whether the ad also “functions as express advocacy” is 

irrelevant for determining the constitutional applicability of BCRA’s disclosure 

requirements, because, as the district court explained, the Supreme Court expressly 

“refused to draw a line between express advocacy and issue advocacy in the BCRA 

disclosure context.” (J.A. 48.) 

For the same reasons, the district court correctly rejected as irrelevant 

Independence Institute’s arguments about the tone of its proposed advertisement. 

As the court explained, the language in Citizens United “does not suggest that the 

pejorative nature of [Citizens United’s] advertisements in any way was important 

to the conclusion with respect to disclosures.” (J.A. 50.) Indeed, “the text of the 

opinion does not even hint that” the Supreme Court’s disclosure holding was 

limited to facially pejorative (or complimentary) advertisements. (J.A. 51-52.) 

Requiring a determination of whether a particular communication is pejorative 

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would add an entire additional level of inquiry to the simpler statutory definition of 

“electioneering communication” that the Supreme Court had embraced as “easily 

understood and objectively determinable.” McConnell, 540 U.S. at 194.

B. Citizens United’s Holding Is Not Limited to Ads for Commercial 

Transactions 

Independence Institute’s arguments (Appellant’s Br. 42-43) about the 

commercial nature of Citizens United’s movie advertisements are just as 

misguided. The district court correctly rejected Independence Institute’s 

mischaracterization of the Supreme Court’s reference to the commercial nature of 

Citizens United’s movie ads, which “excised [the reference] from its context.” 

(J.A. 49.) 

Contrary to Independence Institute’s arguments, the Supreme Court neither 

“relied upon the commercial nature of the Hillary advertisements,” nor otherwise 

implied that such communications could “be more heavily regulated than pure 

issue advocacy.” (Appellant’s Br. 42-43 (emphasis added).) Instead, the Court 

mentioned the commercial nature of Citizens United’s ads to explain its rejection 

of an additional, separate argument that the government lacked any informational 

interest in requiring disclosure of the financing of such commercial advertisements. 

Citizens United, 558 U.S. at 369 (explaining — separate from the response to 

Citizen United’s functional equivalent argument — that Citizens United “also” 

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28 

disputes application to its ads “which only attempt to persuade viewers to see the 

film”). 

The Court concluded 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.” Id. The district court correctly concluded 

that such language, “[i]n no sense” stated or even implied that Citizens United’s 

movie advertisements “deserved only the lesser First Amendment protections of 

commercial speech.” (J.A. 49-50.)

Despite the acknowledgment that Citizens United’s ads may have “only 

attempt[ed] to persuade viewers to see the film” about Senator Clinton, the Court 

found that this was not a basis for invalidating BCRA’s disclosure requirements as 

applied to that nonprofit organization. Citizens United, 558 U.S. at 369. The Court 

held that the government’s “informational interest alone [wa]s sufficient” to uphold 

BCRA’s disclosure requirements as applied to Citizens United’s movie ads. Id. 

C. There Is an Important Interest in Disclosure Related to 

Advertisements That Reference Both Candidates and Legislation 

The government’s interest in ensuring that the public can learn who is 

speaking about a candidate for United States Senate shortly before an election in an 

ad discussing a piece of proposed legislation, like the ad Independence Institute 

sought to broadcast last fall, is at least as “sufficiently important” as the 

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

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candidate in an ad that “only pertain[s] to a commercial transaction.” Citizens 

United, 558 U.S. at 366, 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.at 369, then disclosure of Independence Institute’s proposed ad must also be 

substantially related to the government’s informational interest here. In contrast, 

Independence Institute’s proposed broadcast, during the period shortly before a 

federal election, of an advertisement that referred to a federal candidate, “while 

concealing” the sources of financing of that advertisement from the public would 

not have “reinforce[d]” its First Amendment rights, but would have compromised 

“the competing First Amendment interests” of the electorate. McConnell, 540 U.S. 

at 196-97, 201 (internal quotation marks and citation omitted).7

 

                                                      

7

 BCRA’s disclosure requirements would have enabled the public to evaluate 

Independence Institute’s pre-election message. There has been public interest in 

Independence Institute’s funding even outside the electioneering context, 

confirming that the public considers funding sources to evaluate the messages it 

receives. See Frank Smyth, The Times Has Finally (Quietly) Outed an NRAFunded “Independent” Scholar, The Progressive, (Apr. 23, 2014), 

http://www.progressive.org/news/2014/04/187663/times-has-finally-quietly-outednra-funded-%E2%80%9Cindependent%E2%80%9D-scholar (last visited May 6, 

2015) (questioning the independence of an Independence Institute scholar that has 

testified before Congress and written editorials on gun policy issues while “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 May 6, 2015) (describing an 

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As the district court observed, its application of “the Supreme Court’s clear 

instructions in Citizens United” is consistent with the decisions of numerous 

federal courts of appeals, which have likewise “determined that Citizens United’s 

language forecloses the suggestion that disclosure requirements must be limited to 

express advocacy and its functional equivalent.” J.A. 42; see J.A. 46 (collecting 

cases); see also, e.g., Free Speech v. FEC, 720 F.3d 788, 795-96, 798 (10th Cir. 

2013) (explaining that in Citizens United, “the Supreme Court . . . found that 

disclosure requirements could extend beyond speech that is the ‘functional 

equivalent of express advocacy’” (citation omitted)); Real Truth About Abortion v. 

FEC, 681 F. 3d 544, 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” (citing 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) (explaining that 

post- Citizens United, “the distinction between issue discussion and express 

                                                                                                                                                                              

Independence Institute lawsuit challenging Colorado’s gun control laws that “is 

mostly being funded . . . by . . . [t]he National Rifle Association”). 

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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 that after Citizens United, “the position that disclosure 

requirements cannot constitutionally reach issue advocacy is unsupportable”).

8

 As 

the district court noted, the FEC identified these cases in its district court brief and 

Independence Institute failed to “address the fact that these opinions treat the 

Supreme Court’s clear conclusion with respect to disclosures as binding.” (J.A. 47 

n.11.) 

The correctness of the decision below is further underscored by its 

consistency with earlier Supreme Court decisions holding 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., Doe v. Reed, 561 U.S. 186, 194-99 (2010) (upholding law compelling 

disclosure of signatory information on referendum petitions); Buckley v. Am. 

Constitutional Law Found., Inc., 525 U.S. 182, 204 (1999) (“Am. Constitutional 

Law Found.”) (upholding requirement to disclose donations made to organizations 

                                                      

8 See also, e.g., 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 electioneering communications).

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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 . . . .”). 

The Supreme Court has upheld ballot-related disclosure requirements 

notwithstanding its conclusion that ballot-initiative activity is inherently issuefocused 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)). These cases further undermine 

Independence Institute’s suggestion (e.g., Appellant’s Br. 27) that disclosure 

requirements cannot extend to “speech about an issue of public importance that 

lacks an unambiguous relationship to a particular campaign.” On the contrary, 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. 

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. The Court in Citizens United supported its disclosure 

holding in part by embracing its earlier approval, in United States v. Harriss, 347 

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U.S. 612, 625 (1954), of registration and disclosure requirements for lobbyists that 

“‘provided for a modicum of information from those who for hire attempt to 

influence legislation or who collect or spend funds for that purpose.’” Citizens 

United, 588 U.S. at 369 (quoting Harriss, 347 U.S. at 625); see also, e.g., Harriss, 

347 U.S. at 625 (“[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 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”).

9

 

Lobbying typically does not involve candidate campaigns; it is issueoriented political activity separately protected by the First Amendment. As the 

Supreme Court thus expressly recognized in Citizens United, decisions upholding 

disclosure requirements in the lobbying context further establish that the 

government’s informational interest extends beyond speech about candidate 

                                                      

9

 See also Fla. League of Prof’l Lobbyists, Inc. v. Meggs, 87 F.3d 457, 460 

(11th Cir. 1996) (upholding state lobbyist disclosure statutes, which help citizens 

“apprais[e] the integrity and performance of officeholders and 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).

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elections and encompasses activity that attempts to sway legislators on issues, just 

as Independence Institute claims it wished to do here. 

McConnell, Citizens United, and the other decisions cited above demonstrate 

that the district court correctly rejected this attempt to relitigate BCRA’s disclosure 

requirements. 

D. Citizens United Is Binding Precedent

The district court correctly held that Citizens United’s disclosure holding is 

“not dicta but a holding . . . that ultimately encompasses the facts in this case.” 

(J.A. 46.) Although Independence Institute presses its “dicta” argument in this 

Court only in passing, it does criticize the district court for supposedly dismissing 

that argument “out of hand” (Appellant’s Br. 41). The district court did no such 

thing. On the contrary, it explained in detail why the Supreme Court’s “refusal [in 

Citizens United] to import the express advocacy limitation to the disclosure context 

was not dicta” (J.A. 46), even after observing that Independence Institute appeared 

to abandon its “dicta” argument in its merits reply brief (J.A. 44 n.8). 

In particular, the court below correctly explained that even the single, out-ofcircuit opinion, upon which Independence Institute relied for its “dicta” argument, 

“ultimately conclude[d]” that the Supreme Court’s “discussion of disclosures in 

Citizens United is binding with respect to BCRA section 201.” J.A. 44 (discussing 

Wisconsin Right to Life, Inc. v. Barland, 751 F.3d 804 (7th Cir. 2014); emphasis 

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added); see Barland, 751 F.3d at 836 (acknowledging Seventh Circuit’s earlier 

holding “on the strength of this part of Citizens United . . . that the ‘distinction 

between express advocacy and issue discussion does not apply in the disclosure 

context’” (quoting Madigan, 697 F.3d at 484)). 

As the district court also explained, the Seventh Circuit panel in Barland

distinguished BCRA’s constitutionally permissible disclosure requirements for 

federal electioneering communications from the state disclosure scheme 

challenged in that case and “agree[d] that the ‘express-advocacy limitation’ does 

not apply to the disclosure provisions challenged in this action.” J.A. 45 n.9; see 

Barland, 751 F.3d at 836 (describing BCRA’s “onetime, event-driven disclosure 

rule for federal electioneering communications” as “a far more modest disclosure 

requirement” than other campaign-finance reporting regimes and recognizing that 

in the “specific context” of BCRA’s electioneering-communications disclosure 

requirements, “the [Supreme] Court declined to apply the express-advocacy 

limiting principle”). 

The district court’s clarification of what Barland actually held was more 

than sufficient to support its rejection of Independence Institute’s “dicta” argument 

and its corresponding determination that “the Supreme Court’s conclusion in 

Citizens United with respect to disclosures under BCRA section 201 is binding 

precedent.” (J.A. 47.) Indeed, as the district court emphasized, whereas 

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“numerous other Circuit courts” have held that Citizens United’s disclosure 

holding “forecloses the suggestion that disclosure requirements must be limited to 

express advocacy and its functional equivalent,” Independence Institute has failed 

to identify a single “Court of Appeals decision that has reached a contrary 

conclusion.” J.A. 46-47; see supra pp. 30-31. 

The district court went even further, however, and identified the flawed 

factual premise underlying the Barland panel’s characterization of Citizens 

United’s disclosure holding as “dicta.” (J.A. 45-46.) The court explained (J.A. 45) 

that the Barland panel’s “dicta” characterization was based on a mistaken 

assumption that the Supreme Court in Citizens United “had already concluded that 

Hillary [the movie] and the ads promoting it were the equivalent of express 

advocacy.” Barland, 751 F.3d at 836 (emphasis added). “But,” as the district 

court clarified, “this statement is not supported by the Supreme Court’s own 

language as it relates to the Hillary advertisements.” (J.A. 45.) In fact, as 

explained above, the Supreme Court described Citizens United’s promotional ads 

as only related to the commercial transaction of movie promotion. 558 U.S. at 

369. The district court’s critique of Independence Institute’s failure to “even 

attempt to indicate where in Citizens United the Supreme Court held that the 

advertisements were the functional equivalent of express advocacy” is equally 

applicable to its appellate brief. (J.A. 45-46.) Indeed, contrary to Independence 

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Institute’s argument (Appellant’s Br. 41), “the very wording of [Citizens United’s] 

ads” disproves its point. See id. at 43 (arguing that Independence Institute’s 

proposed advertisement is not campaign-related speech because “[i]t never 

mentions any election,” while ignoring that Citizens United’s movie ads also did 

not mention any election); supra n.6. 

Far from dismissing Independence Institute’s “dicta” argument “out of 

hand,” the district court thoroughly and correctly explained why that argument is 

both legally baseless and factually flawed. 

E. The Informational Interest Does Not Vary According to an 

 Advertiser’s Tax Status  

The court below also thoroughly and correctly rejected Independence 

Institutes’s attempt to distinguish Citizens United based on the different 

subsections of the tax code under which it and Citizens United, respectively, are 

organized. (J.A. 47-48.) 

First, the court explained that Independence Institute’s tax-status argument 

lacks any support in Citizens United’s disclosure analysis. As Independence 

Institute itself acknowledges (Appellant’s Br. 44 n.13), the majority opinion did 

not even identify the particular section of the tax code under which Citizens United 

was organized; it simply described the group as “a nonprofit corporation,” Citizens 

United 558 U.S. at 319, a broad category that includes Independence Institute as 

well. As the district court explained, “nothing in Citizens United’s discussion of 

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disclosures of contributions cabins the Supreme Court’s holding to certain types of 

organizations” and Independence Institute has failed to cite any “authority that 

such a distinction would be required by the First Amendment.” (J.A. 47-48.) 

It is unsurprising that the Court did not exempt a whole category of 

nonprofits from BCRA’s disclosure requirements; such a categorical exemption 

would be inconsistent with the Court’s broad holding regarding the importance of 

the public obtaining information about who is funding pre-election advertising. 

Citizens United, 558 U.S. at 369. The public’s need to know who financed and 

distributed an electioneering communication is not altered based on which 

subsection of the Internal Revenue Code that entity relies on for its tax exemption. 

As the Seventh Circuit Court of Appeals 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).10 

                                                      

10 Indeed, tax status is generally not dispositive of an organization’s 

compliance with other federal laws. See, e.g., NCAA v. Bd. of Regents of the Univ. 

of Okla., 468 U.S. 85, 100 n.22 (1984) (holding nonprofit tax status does not 

exempt organization from antitrust laws); Zimmerman v. Cambridge Credit 

Counseling Corp., 409 F.3d 473, 478 (1st Cir. 2005) (explaining that the Federal 

Trade Commission “determines, without reference to a target organization’s taxexempt status, whether the organization in fact operates as a nonprofit and is 

therefore beyond its jurisdiction”); In re Grand Jury Proceedings, 633 F.2d 754, 

757 (9th Cir.1980) (holding that “treatment for tax purposes is largely irrelevant to 

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Second, the district court explained that Independence Institute’s attempt to 

distinguish the disclosure obligations of nonprofits organized under section 

501(c)(3) of the Internal Revenue Code from nonprofits organized under section 

501(c)(4) “has no basis,” because “[n]either type of nonprofit organization is 

obligated by federal tax law to disclose donor information.” (J.A. 47 (citing 26 

U.S.C. § 6104(d)(3)(A)).) In any event, and as the Ninth Circuit recently 

explained, even if Congress limited the disclosures of such entities under the 

Internal Revenue Code, federal tax-law provisions “do not broadly prohibit other 

government entities from seeking that information directly from the organization. 

Nor do they create a pervasive scheme of privacy protections. Rather, [the Internal 

Revenue Code provisions] represent exceptions to a general rule of disclosure.” 

Ctr. for Competitive Politics v. Harris, No. 14-15978, __ F.3d __, 2015 WL 

1948168, at *8 (9th Cir. May 1, 2015) (declining to preliminarily enjoin 

enforcement of a state law imposing certain disclosure requirements on charitable 

organizations). 

Independence Institute’s alternative argument — that Citizens United is 

distinguishable because Citizens United’s “affiliated entities regularly disclosed 

their donors” (Appellant’s Br. 44 (emphasis added)) — similarly fails to 

demonstrate any constitutional basis for distinguishing between the disclosure 

                                                                                                                                                                              

the determination of whether it is an organization separate and apart from its 

creator”).

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obligations under BCRA of different types of nonprofits. As the district court 

clarified, the Supreme Court mentioned such donor disclosure in Citizens United 

only to address the availability of an as-applied exemption related to harassment 

that Independence Institute has stipulated is not at issue here. (J.A. 47-48.) 

Third, the district court highlighted the flaws of Independence Institute’s 

argument that federal campaign finance rules must be interpreted in a manner that 

assumes organizations’ compliance with their separate, tax-law obligations. (J.A. 

48 n.12.) Indeed, as both the district court and Independence Institute observe, the 

Commission previously promulgated a regulation that did precisely what 

Independence Institute advocates here (Appellant’s Br. 45) — exempting section 

501(c)(3) organizations from BCRA’s disclosure requirements — and the 

regulation was invalidated, inter alia, because of “potential problems that might 

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

(J.A. 48 n.12 (citing Shays v. FEC, 337 F. Supp. 2d 28, 128 (D.D.C. 2004), aff’d, 

414 F.3d 76 (D.C. Cir. 2005)).) 

In addition to renewing these flawed arguments, Independence Institute asks 

this Court to consider “the fact that what [it and Citizens United] actually do is 

vastly different.” (Appellant’s Br. 46.) This suggestion that courts should 

subjectively evaluate an organization’s broader activities to determine whether 

BCRA’s event-driven disclosure requirements may apply conflicts with 

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McConnell’s embrace of BCRA’s clear and objective definition of “electioneering 

communication.” See supra p. 7. 

IV. AUTHORITIES REGARDING VERY DIFFERENT PROVISIONS 

SUCH AS FINANCING RESTRICTIONS AND IN-PERSON 

LEAFLETTING ARE INAPPOSITE 

As it did in the proceedings below, Independence Institute (and its amici) 

insist that court decisions concerning entirely different provisions, including laws 

that prohibited certain speech, are more instructive than either of the two Supreme 

Court decisions upholding the precise statute at issue here and rejecting the exact 

arguments Independence Institute advocates in this case. Such arguments are just 

as unsound now as they were in the proceedings below, and the district court was 

correct to reject them. 

In particular, the district court correctly held that Independence Institute’s 

reliance on Buckley’s distinction between express advocacy and issue advocacy “is 

unavailing.” (J.A. 53.) Not only does Independence Institute continue to ignore 

that the Buckley Court distinguished between such forms of advocacy “to avoid 

problems of vagueness and overbreadth” (J.A. 53 (quoting McConnell, 540 U.S. at 

191-92)), it discusses Buckley and lower court decisions citing it as if they exist in 

a vacuum (Appellant’s Br. 29-33), without even acknowledging the Supreme 

Court’s more recent decisions upholding the provisions actually challenged here. 

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The district court also correctly rejected Independence Institute’s misleading 

reliance on Wisconsin Right to Life, in which the Court narrowed the permissible 

scope of BCRA’s former prohibition on certain electioneering communications, 

but did not at all address BCRA’s disclosure requirements. (Compare J.A. 57 

(“Plaintiff’s attempt to apply the reasoning of [Wisconsin Right to Life] to 

disclosure requirements fails.”), with Appellant’s Br. 35-37 & n.12 (invoking the 

constitutional analysis in Wisconsin Right to Life).) This argument that the court 

should apply Wisconsin Right to Life’s functional equivalent of express advocacy 

standard to BCRA’s disclosure requirements “is precisely the argument rejected in 

Citizens United.” (J.A. 57.) 

The court also correctly declined Independence Institute’s invitation to draw 

inferences about the constitutionality of BCRA’s disclosure requirements from 

principles articulated in this Court’s 27-year-old analysis of a dramatically 

different (and far broader) disclosure provision that has since been repealed. (J.A. 

56 n.17.) This Court’s 1975 Buckley decision upheld a range of disclosure 

requirements, while invalidating a broad, catch-all provision on overbreadth and 

vagueness grounds. Buckley v. Valeo, 519 F.2d 821, 874-78 (D.C. Cir. 1975) (en 

banc). The catch-all provision required any group that “commits any act directed 

to the public for the purpose of influencing the outcome of an election . . . [to] file 

reports with the Commission as if such [group] were a political committee.” 

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Buckley, 519 F.2d at 869-70 (quoting former 2 U.S.C. § 437a). Indeed, the breadth 

of former section 437a was central to this Court’s analysis, which “emphasize[d] 

that [its] holding on statutory vagueness and overbreadth rests on the peculiar 

context of § 437a.” Id. at 878 n.142. The district court correctly concluded that 

section 437a “bears no resemblance to the disclosure requirements in BCRA 

section 201 and sheds no light on the Court’s consideration of them.” (J.A. at 56 

n.17.) 

Finally, McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995), on 

which amicus curiae Citizens United and others rely (Br. Amicus Curiae of 

Citizens United, et al. in Supp. of Appellant and Reversal 8-14), is equally 

inapposite. McIntyre concerned a state law requiring in-person identification of 

pamphlet distributors and was decided long before both Congress’s enactment of 

BCRA and the Supreme Court’s two decisions upholding its disclosure 

requirements. The Court’s earlier invalidation of an entirely distinct state law 

plainly does not supersede its more recent holdings on the precise issue here. 

Indeed, the McIntyre Court distinguished the “anonymous campaign literature” at 

issue there from the financial disclosures required by FECA. McIntyre, 514 U.S. at 

353. And the Court expressly limited its holding to “leaflets of the kind Mrs. 

McIntyre distributed,” disclaiming any application to “communications uttered 

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over the broadcasting facilities of any radio or television station.” McIntyre, 514 

U.S. at 338 n.3. 

Courts have distinguished the mandatory in-person identification at issue in 

McIntyre from other provisions requiring after-the-fact filings with a government 

agency and held that the latter are reviewed under a lower standard. See, e.g., Am. 

Constitutional Law Found., 525 U.S. at 198 (striking down statute requiring 

petition-circulators to wear name badges but upholding statute requiring them to 

file affidavits identifying themselves); Majors v. Abell, 361 F.3d 349, 353-54 (7th 

Cir. 2004) (distinguishing McIntyre). As the Supreme Court has explained, the inperson, “one-on-one” nature of the communication was crucial to its decision in 

McIntyre. Am. Constitutional Law Found., 525 U.S. at 199. McIntyre has no 

bearing here. 

V. BCRA’S DISCLOSURE REQUIREMENTS DO NOT 

UNCONSTITUTIONALLY BURDEN INDEPENDENCE INSTITUTE 

A. This Case Involves No Concern of Threats, Harassment, or 

Reprisals 

Independence Institute claims (Appellant’s Br. 52) that affirming the 

decision below “would close the door to any future as-applied challenges to 

BCRA’s electioneering communication disclosure requirements.” This claim is 

nonsense. The Supreme Court has repeatedly explained that as-applied challenges 

to disclosure requirements, including the provision challenged here, remain 

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available when an organization can demonstrate that disclosure would cause 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). Independence Institute’s express waiver of any such claim here 

(J.A. 34, 40) is no basis for expanding the scope of permissible as-applied 

challenges to a statutory disclosure provision, the constitutionality of which is well 

settled. And its assertion that the “Supreme Court has repeatedly held . . . 

generalized donor disclosure to be unconstitutional” (Appellant’s Br. 52) similarly 

ignores its own waiver of the sole basis the Supreme Court has recognized for 

exempting an organization from campaign-finance disclosure requirements. 

The Court of Appeals for the Ninth Circuit recently rejected precisely the 

same arguments in a constitutional challenge to state-law disclosure requirements 

brought by the organization and counsel that represent Independence Institute here. 

See Ctr. for Competitive Politics, 2015 WL 1948168, at *4-*8. In that case, the 

court of appeals held that, under the Buckley framework, when an organization 

neither claimed nor produced evidence to suggest that its donors would experience 

threats, harassment, or other chilling conduct as a result of its compliance with the 

challenged disclosure requirement, it had “not demonstrated any ‘actual burden,’ 

. . . on its or its supporters’ First Amendment rights.” Id. at *6 (citation omitted). 

The court further held that “contrary to CCP’s contentions, no case has ever held or 

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implied that a disclosure requirement in and of itself constitutes First Amendment 

injury.” Id. 

B. Electioneering Communications Disclosure Requirements Would 

Not Apply to Comparable Ads Independence Institute May Wish 

to Run Now and It Has Not Established That It Will Be Subject to 

the Requirements Again 

Independence Institute alleged in its complaint that its educational endeavors 

“[o]ccasionally . . . include advertisements that mention the officeholders,” who 

“[s]ometimes . . . are also candidates for office.” (J.A. 7 (Compl. ¶ 2).) 

Independence Institute has not, however, to date identified any specific intention to 

broadcast any electioneering communications in the future that would indicate it 

will be subject to the statutory disclosure requirements again. As the party 

claiming subject matter jurisdiction, Independence Institute bears the burden of 

demonstrating that jurisdiction exists, see Khadr v. United States, 529 F.3d 1112, 

1115 (D.C. Cir. 2008), and it has not satisfied its burden of demonstrating that the 

matter is capable of repetition and thus within an exception to mootness. Compare 

Wisconsin Right to Life, 551 U.S. at 463 (holding that moot challenge to BCRA’s 

former ban on certain electioneering communications was capable of repetition 

where plaintiff alleged future plans to run materially similar ads mentioning a 

candidate during electioneering-communication period). Its continued reliance on 

the supposed burden it would face “if [it] runs the ad as proposed in this case” 

(Appellant’s Br. 51) is insufficient because, as explained supra p. 16, that ad is no 

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longer subject to the disclosure requirements challenged here. The FEC previously 

stated that this clearly moot case appeared to fall within the exception to mootness 

based on the above-mentioned general allegations in the complaint (J.A. 7 (Compl. 

¶ 2)), while clarifying that this case can no longer rest on the particular proposed 

advertisement Independence Institute has described in this case. (FEC Mot. for 

Summ. Affirmance, at 10 n. 2. The Commission made such observations in its 

summary-affirmance briefing, before Independence Institute had an opportunity to 

update its jurisdictional claim. It has now had several chances to do so and has 

failed to meet its burden. 

C. Van Hollen Is Irrelevant to Independence Institute’s Claims

In Van Hollen, a district court recently invalidated an FEC regulatory 

interpretation of the scope of BCRA’s disclosure requirements for electioneering 

communications financed by corporations, and concluded that the regulation was 

arbitrary and capricious under the APA. 2014 WL 6657240, at *24. Even setting 

aside the question of whether Van Hollen could retroactively apply to proposed 

circumstances and claims that predated the decision, Independence Institute’s 

hyperbolic assertions that “the BCRA disclosure regime has been undone” by Van 

Hollen and that now, “all of [its] donors are subject to disclosure” if it “runs the ad 

as proposed in this case” are wrong for several reasons. 

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 First, it is not true that “[p]ost-Van Hollen, if an organization runs an 

electioneering communication, all donors who gave more than $1,000 to the 

organization will be publicly disclosed.” (Appellant’s Br. 51.) Independence 

Institute fails to mention that BCRA and FEC regulations continue to permit 

corporations and others that finance electioneering communications to limit the 

scope of their donor disclosure by financing such communications from a 

segregated account and identifying only those individuals who contributed $1,000 

or more to the account itself. 52 U.S.C. § 30104(f)(2)(E); 11 C.F.R. 

§ 104.20(c)(7)(ii). See supra p. 6. Independence Institute’s own choice to eschew 

that option does not mean that it, or any other corporation, is statutorily required to 

disclose all of its donors. (Appellant’s Br. 51.) 

Second, Independence Institute ignores that the Supreme Court in 

McConnell considered and upheld the statutory disclosure requirements for 

electioneering communications before the regulation struck in Van Hollen was 

promulgated and that the regulation has never applied to entities that are neither 

unions nor incorporated. Independence Institute similarly disregards the fact that 

Citizens United upheld the statutory provisions without relying on, let alone 

considering or even mentioning in passing, the regulation. Notably, that part of 

Citizens United’s holding rested on Congress’s goal of addressing through the 

electioneering communications provisions “a system without adequate disclosure” 

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and to create one with “effective disclosure” that is especially “informative” given 

today’s technology. 558 U.S. at 370. Citizens United itself thus belies any 

suggestion that the Supreme Court in that case sub silentio relied on a particular 

limiting constructions of the statute it upheld. 

Third, and relatedly, Independence Institute ignores the reason the Van 

Hollen court invalidated the Commission’s interpretive regulation. Contrary to 

Independence Institute’s arguments here, the Van Hollen court agreed with the 

court below that “[i]n Citizens United, the [Supreme] Court clearly found that the 

disclosure requirements in [BCRA] — even those that apply to ads that are not 

express advocacy or its functional equivalent — do not impinge upon 

constitutional rights.” Van Hollen, 2014 WL 6657240, at *24 (relying on Citizens 

United and also citing the district court opinion Independence Institute is appealing 

here). Regardless of whether Van Hollen’s vacatur of the Commission’s regulation 

will ultimately be upheld on appeal, the decision lends no support to the premise 

behind Independence Institute’s constitutional challenge to BCRA’s statutory 

disclosure requirements. 

Fourth, Congress’s decision to impose different disclosure requirements for 

independent expenditures does not demonstrate that the statutory disclosure 

requirements for electioneering communications are unconstitutional as applied to 

Independence Institute or in any other circumstance. The electioneering 

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communications provisions were part of Congress’s effort to address gaps in the 

preexisting disclosure regime, including the ability of the public to learn, as 

candidates and officeholders could, which “corporations or individuals make 

donations to interest groups that run ‘issue ads.’” McConnell, 540 U.S. at 128-29 

(other internal quotation marks and citations omitted). It is thus unsurprising that 

the electioneering communications provisions are in some respects more 

comprehensive than the disclosure requirements for independent expenditures. 

Moreover, such differences existed when the Supreme Court upheld BCRA’s 

disclosure requirements both on their face and as applied to ads that, like 

Independence Institute’s proposed ad, lacked campaign advocacy. In any event, 

and as clarified above, see supra 16, 46-47, Independence Institute is wrong when 

it asserts that “if [it] runs the ad as proposed in this case — without any candidate 

advocacy, express or implied — then all of [its] donors are subject to disclosure.” 

(Appellant’s Br. 51.) That supposed outcome not only is neither “troubling” nor 

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

true. 

Fifth, and finally, regarding the particular facts at issue here, Independence 

Institute would not have avoided disclosure even pre-Van Hollen. Under the 

regulation invalidated in that case, corporations were still required to disclose 

donations “made for the purpose of furthering electioneering communications.” 

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11 C.F.R. § 104.20(c)(9). Independence Institute intended “to raise funds for [its] 

specific advertisement, including seeking donations in amounts greater than $1,000 

from individual donors.” (J.A. 13 (Compl. ¶ 37).) Such donations to finance a 

particular electioneering communication would have been subject to disclosure 

even under the regulation invalidated in Van Hollen.

VI. A THREE-JUDGE COURT WAS CLEARLY UNWARRANTED 

HERE 

The analysis above demonstrates that the district court correctly determined 

that Independence Institute’s case is “squarely foreclosed” by Citizens United, and 

thus so contrary to clear Supreme Court precedent that a three-judge court was 

unwarranted. (J.A. 42, 57-58.)11

                                                      

11 Independence Institute purports (e.g. Appellant’s Br. 13-14) to limit the 

scope of this appeal to whether the district court erred in declining to convene a 

three-judge court. At the same time, however, it “asks whether the district court 

erred in dismissing the Institute’s constitutional claims” (id. at 10) and argues that 

“[t]he judgment of the district court should be reversed” (id. at 57). Moreover, its 

appellate brief includes extensive arguments on the merits, including arguments 

unrelated to whether the district court properly denied its request for a three-judge 

court because its claims are foreclosed by Supreme Court precedent. (E.g. id. at 

53-56 (arguing that this Court should extend purportedly analogous principles from 

its own 1975 Buckley decision to the distinct provision challenged here).) The 

Commission’s statement of the issues presented for review, which included the 

district court’s judgment for the FEC, thus presents a more accurate statement of 

issues and the Court is permitted to work from it. A.J. McNulty & Co., Inc. v. 

Sec’y of Labor, 283 F.3d 328, 331 (D.C. Cir. 2002) (following the organization of 

the appellee’s brief).

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When Congress passed BCRA in 2002, it included a special review 

procedure to ensure expedited appellate review of new constitutional questions 

likely to arise. BCRA § 403,116 Stat. 113-14. Section 403 of BCRA, in 

relevant part, permits special procedures for actions brought on constitutional 

grounds challenging “any provision” of BCRA. BCRA § 403(a), 116 Stat. 113-14. 

Section 403 required that all such actions initiated before December 31, 2006, were 

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

heard by a three-judge district court convened pursuant to 28 U.S.C. § 2284. It 

further provides that final decisions of such three-judge courts are reviewable only 

by direct appeal to the Supreme Court. BCRA § 403(a)(3), 116 Stat. 114. The 

special procedural rules do not apply to actions filed after December 31, 2006, 

however, “unless the person filing such action elects such provisions to apply to 

the action.” Id. § 403(d)(2), 116 Stat. 114.

The Supreme Court has no discretion to refuse adjudication on the merits in 

direct appeal cases. McCutcheon v. FEC, 134 S. Ct. 1434, 1444 (2014). The 

Court has thus instructed that courts should employ an “overriding policy . . . of 

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

judicial administration.” Gonzalez v. Automatic Emps. Credit Union, 419 U.S. 90, 

98 (1974); see also Goldstein v. Cox, 396 U.S. 471, 478 (1970) (explaining that the 

Court has “more than once stated that its jurisdiction under the Three-Judge Court 

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Act is to be narrowly construed” because any loose construction would defeat 

Congress’s purpose of keeping Court “within the narrow confines of its appellate 

docket”); accord MTM, Inc. v. Baxley, 420 U.S. 799, 804 (1975) (per curiam). 

Independence Institute correctly acknowledges (Appellant’s Br. 13-15) that 

three judge-courts need not be convened “if a case raises no substantial claim or 

justiciable controversy,” and that “[c]onstitutional claims may be regarded as 

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

clearly results from the previous decisions of [the Supreme Court] as to foreclose 

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

raised can be the subject of controversy.’” Feinberg, 522 F.2d at 1338-39 

(citations omitted); see Schonberg v. FEC, 792 F. Supp. 2d 14, 17 (D.D.C. 2011) 

(per curiam) (applying Feinberg to BCRA § 403(a)). Independence Institute also 

acknowledges that “[t]he district court correctly articulated th[is] applicable 

standard.” (Appellant’s Br. 15; J.A. 42.) 

The analysis above confirms that this case is obviously without merit and 

plainly unsound in light of previous Supreme Court decisions. None of 

Independence Institute’s arguments regarding the applicability of BCRA § 403(a) 

demonstrates otherwise. 

First, while the FEC agrees that the standard for certifying questions of 

FECA’s constitutionality under 52 U.S.C. § 30110 “is analogous” to the standard 

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under BCRA § 403(a) (Appellant’s Br. 18), the cases Independence Institute 

discusses (and others) demonstrate why the district court properly declined to 

convene a three-judge court here. In Wagner v. FEC, for example, this Court 

explained that section 30110 requires district courts to determine whether 

constitutional challenges to FECA are frivolous or involve settled legal questions 

and then to certify to the en banc court of appeals only those questions that are not 

frivolous or settled. 717 F.3d 1007, 1009 (D.C. Cir. 2013) (per curiam). Indeed, 

failure to “‘complete the functions mandated by § 30110 and described in 

Wagner,’” may result in a remand to the district court. Holmes v. FEC, No. 14-

1243 (RMC), __ F. Supp. 3d __, 2015 WL 1778778, at *12 (D.D.C. Apr. 20, 2015) 

(reconsidering certification question on remand from the Court of Appeals, 

denying motion to certify constitutional questions, and awarding summary 

judgment to the FEC because plaintiffs’ claims challenged settled law), appeal 

docketed, No. 15-5120 (D.C. Cir. Apr. 29, 2015); see also Khachaturian v. FEC, 

980 F.2d 330, 331 (5th Cir. 1992) (remanding prematurely certified case and 

explaining that district court must “make the requisite threshold inquiry” including 

whether the claims presented “have been resolved by the Supreme Court”). 

Alternatively, where district courts have dismissed insubstantial claims that 

challenged settled legal questions, courts of appeals have affirmed those decisions. 

See, e.g., Libertarian Nat’l Comm. v. FEC, 930 F.Supp.2d 154, 165-67 (D.D.C. 

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2013) (declining to certify proposed question as framed by plaintiffs, which was 

frivolous and insubstantial), summ. aff’d, No. 13–5094, 2014 WL 590973 (D.C. 

Cir. Feb. 7, 2014) (per curiam; unpublished); Cao v. FEC, 688 F. Supp. 2d 498, 

535-39, 43-45, 48 (E.D. La. 2010) (declining to certify various proposed 

constitutional questions because such questions failed to satisfy threshold 

substantiality inquiry), aff’d, In re Cao, 619 F.3d 410, 418-20 (5th Cir. 2010); 

Goland v. United States, 903 F.2d 1247, 1253 (9th Cir. 1990) (affirming denial of 

motion to certify questions that “d[id] not fall outside the principles” established 

by Supreme Court precedent). As the Ninth Circuit observed in Goland, “not 

every sophistic twist that arguably presents a ‘new’ question should be certified. 

Once the statute has been thoroughly reviewed by the Court, questions arising 

under ‘blessed’ provisions understandably should meet a higher threshold.” Id. at 

1257. 

Independence Institute fails to provide any actual support for its proposition 

(Appellant’s Br. 14) that the “Supreme Court has taken pains to emphasize that asapplied challenges are subject to the three-judge court procedure, even when the 

challenged provision has been upheld on its face.” Its sole purported authority for 

that proposition is Wisconsin Right to Life, but it is not true that the Supreme Court 

in Wisconsin Right to Life reversed a denial of an application for a three-judge 

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court; a three-judge court had been convened when the case was first brought. See 

Wisc. Right to Life, Inc. v. FEC, 466 F. Supp. 2d 195, 200 (D.D.C. 2006). 

Second, Independence Institute attempts to transform into a legal argument 

the fact that the FEC elected not to challenge an application for a three-judge court 

during the expedited district court proceedings in McCutcheon v. FEC. 

(Appellant’s Br. 16-17.) The Commission’s choices of which arguments to pursue 

in any given case reflect a variety of considerations and waivers of particular 

arguments in particular cases certainly do not amount to precedent concerning the 

merits of such arguments in an entirely separate case. The Commission’s nonobjection to a three-judge court in McCutcheon does not prove that the district 

court erred in declining to convene such a court here. 

Third and finally, Independence Institute’s assertion (Appellant’s Br. 25) 

that “[n]either the district court nor the FEC has identified a case where the Court 

has upheld disclosure for communications that merely mention a candidate — 

without more — during the electioneering communications window” is utterly 

baffling. That Citizens United is precisely such a case is why Independence 

Institute’s claim “is squarely foreclosed” by that decision. (J.A. 42-52, 57.) 

 

 

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CONCLUSION 

For all the foregoing reasons, the Court should affirm the decision below in 

its entirety. 

Respectfully submitted, 

Lisa J. Stevenson 

Deputy General Counsel – Law 

Kevin Deeley 

Acting Associate General Counsel 

Erin Chlopak 

Acting Assistant General Counsel 

/s/ Greg J. Mueller 

Greg J. Mueller 

Attorney 

FEDERAL ELECTION COMMISSION 

999 E Street, NW 

Washington, DC 20463 

May 8, 2015 (202) 694-1650 

 

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CERTIFICATE OF COMPLIANCE 

This brief complies with the type-volume limitation of Fed. R. App. P. 

32(a)(7)(B) because the brief contains 12,395 words, excluding the parts of the 

brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). 

The brief also complies with the typeface requirements of Fed. R. App. P. 

32(a)(5) and the type-style requirements of Fed. R. App. P 32(a)(6) because the 

brief uses the proportionally spaced typeface Microsoft Word 14-point Times New 

Roman. 

/s/ Greg J. Mueller 

Greg J. Mueller 

Attorney 

Federal Election Commission 

 

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CERTIFICATE OF SERVICE 

I hereby certify that on this 8th day of May 2015, I electronically filed the 

Brief for Federal Election Commission with the Clerk of the United States Court of 

Appeals for the D.C. Circuit by using the Court’s CM/ECF system. Service was 

made on the following through CM/ECF: 

Allen Dickerson 

Tyler Martinez 

Center for Competitive Politics 

124 S. West Street, Suite 201 

Alexandria, VA 22314 

I further certify that I also will cause the requisite number of paper copies of 

the brief to be filed with the Clerk. 

 /s/ Greg J. Mueller 

 Greg J. Mueller 

Federal Election Commission 

 999 E Street, NW 

 Washington, DC 20463 

 (202) 694-1650 

 gmueller@fec.gov 

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