No. 16-743

In the Supreme Court of the United States

INDEPENDENCE INSTITUTE, APPELLANT

v.

FEDERAL ELECTION COMMISSION

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

MOTION TO DISMISS OR AFFIRM

LISA J. STEVENSON

Acting General Counsel

KEVIN DEELEY

Associate General Counsel 

ERIN CHLOPAK

Acting Assistant General

Counsel

GREG J. MUELLER

Attorney

Federal Election Commission

Washington, D.C. 20463

IAN HEATH GERSHENGORN

Acting Solicitor General

Counsel of Record

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217
(I) 

QUESTION PRESENTED

Whether the three-judge district court correctly

held that this Court’s decisions in McConnell v. FEC, 

540 U.S. 93 (2003), and Citizens United v. FEC, 558 

U.S. 310 (2010), foreclose appellant’s as-applied constitutional challenge to federal disclosure requirements for “electioneering communications,” 52 U.S.C. 

30104(f) (Supp. II 2014); 11 C.F.R. 104.20(c). 
(III) 

TABLE OF CONTENTS

Page

Opinions below .............................................................................. 1

Jurisdiction.................................................................................... 1

Statement ...................................................................................... 2

Argument....................................................................................... 9

Conclusion ................................................................................... 19

TABLE OF AUTHORITIES

Cases:

Buckley v. Valeo, 424 U.S. 1 (1976).......................... 2, 3, 6, 13

Center for Individual Freedom v. Madigan, 

697 F.3d 464 (7th Cir. 2012) ............................................... 12

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

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

(2007).............................................................................. 10, 16

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

cert. denied, 134 S. Ct. 2288 (2014) ................................... 12

Human Life of Wash. Inc. v. Brumsickle, 

624 F.3d 990 (9th Cir. 2010), cert. denied, 

562 U.S. 1217 (2011)............................................................ 12

Independence Inst. v. Williams, 812 F.3d 787 

(10th Cir. 2016).................................................................... 12

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

National Org. for Marriage v. McKee, 649 F.3d 34

(1st Cir. 2011), cert. denied 132 S. Ct. 1635 (2012).......... 12

Simon & Schuster, Inc. v. Members of N.Y. State 

Crime Victims Bd., 502 U.S. 105 (1991)........................... 18

Van Hollen, Jr. v. FEC, 811 F.3d 486 (D.C. Cir. 2016) ....... 4

Vermont Right to Life Comm., Inc. v. Sorrell, 

758 F.3d 118 (2d Cir. 2014), cert. denied, 

135 S. Ct. 949 (2015) ........................................................... 12

United States v. Harriss, 347 U.S. 612 (1954).................... 17
IV

Constitution, statutes, and regulations: Page

U.S. Const. Amend. I .......................................9, 11, 12, 13, 18

Act of June 25, 1910, ch. 392, 36 Stat. 822:

§ 1, 36 Stat. 822-823........................................................... 2

§ 5, 36 Stat. 823.................................................................. 2

§ 6, 36 Stat. 823-824........................................................... 2

Act of Feb. 28, 1925, ch. 368, Tit. III, 43 Stat. 1070:

§ 302(c), 43 Stat. 1070........................................................ 2

§ 305(a), 43 Stat. 1071-1072 .............................................. 2

Bipartisan Campaign Reform Act of 2002, 

Pub. L. No. 107-155, 116 Stat. 81: 

§ 201, 116 Stat. 88-90......................................................... 3

§ 403(a)(3), 116 Stat. 113-114 

(52 U.S.C. 30110 note (Supp. II 2014)) ...................... 7

Federal Election Campaign Act of 1971, 

Pub. L. No. 96-187, 86 Stat. 3, as amended by the 

Federal Election Campaign Act Amendments of 

1974, Pub. L. No. 93-443, 88 Stat. 1263 .............................. 2

Federal Election Campaign Act of 1971,

52 U.S.C. 30101 et seq. (Supp. II 2014):

52 U.S.C. 30101(11) ........................................................... 4

52 U.S.C. 30104(f)(1)......................................................... 4

52 U.S.C. 30104(f)(2)......................................................... 4

52 U.S.C. 30104(f)(2)(E) ................................................... 5

52 U.S.C. 30104(f)(3)(A)(i)................................................ 4

52 U.S.C. 30106(b)(1) ........................................................ 7

52 U.S.C. 30107(a)(7)......................................................... 7

52 U.S.C. 30108.................................................................. 7

52 U.S.C. 30109.................................................................. 7

52 U.S.C. 30111(a)(8)......................................................... 7

52 U.S.C. 30111(d)............................................................. 7

2 U.S.C. 434(b)(2) (Supp. IV 1974)......................................... 3
V 

Statutes and regulations—Continued: Page

2 U.S.C. 434(e) (Supp. IV 1974).............................................. 3

26 U.S.C. 501(c)(3)..................................................... 6, 8, 9, 18

11 C.F.R.:

Section 104.20(c)................................................................ 4

Section 104.20(c)(7) ........................................................... 5

Section 104.20(c)(9) ........................................................... 4

Miscellaneous:

Erika K. Lunder & L. Paige Whitaker, Cong. Research Serv., R40141, 501(c)(3)s and Campaign 

Activity: Analysis Under Tax and Campaign 

Finance Laws (2013).......................................................... 18

 
(1) 

In the Supreme Court of the United States

No. 16-743

INDEPENDENCE INSTITUTE, APPELLANT

v.

FEDERAL ELECTION COMMISSION

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

MOTION TO DISMISS OR AFFIRM

OPINION BELOW

The opinion of the district court granting the Federal Election Commission’s motion for summary 

judgment (J.S. App. 3-36) is not published in the Federal Supplement but is available at 2016 WL 6560396. 

JURISDICTION

The judgment of the three-judge district court was 

entered on November 3, 2016. A notice of appeal was 

filed on November 10, 2016 (J.S. App. 37-39), and the 

jurisdictional statement was filed on December 5, 

2016. The jurisdiction of this Court is invoked under 

Section 403(a)(3) of the Bipartisan Campaign Reform

Act of 2002, Pub. L. No. 107-155, 116 Stat. 113-114 (52 

U.S.C. 30110 note).

1

 

1 All references to Title 52 of the United States Code are found 

in the 2014 Supplement.
2 

STATEMENT

1. For more than a century, federal law has required organizations that influence federal elections to 

disclose, inter alia, information about the sources of 

their funding. Buckley v. Valeo, 424 U.S. 1, 61 (1976) 

(per curiam). Beginning in 1910, Congress required 

“organizations operating to influence congressional 

elections in two or more States” to “disclose names of 

all contributors of $100 or more.” Ibid. (citing Act of 

June 25, 1910, ch. 392, §§ 1, 5-6, 36 Stat. 822-824). 

Those federal disclosure requirements were “broadened in the Federal Corrupt Practices Act of 1925,” 

which required “organizations that accept[ed] contributions or ma[de] expenditures ‘for the purpose of 

influencing or attempting to influence’ the Presidential and Vice Presidential elections” in two or more 

States “to report * * * the names and addresses of 

contributors of $100 or more * * * in a calendar 

year.” Id. at 61-62 (quoting Act of Feb. 28, 1925, 

ch. 368, Tit. III, § 302(c), 43 Stat. 1070, and citing 

§ 305(a), 43 Stat. 1071-1072). 

The Federal Election Campaign Act of 1971 (FECA)

replaced those earlier requirements with a more comprehensive disclosure regime. See Pub. L. No. 96-187, 

86 Stat. 3, as amended by the Federal Campaign Act 

Amendments of 1974, Pub. L. No. 93-443, 88 Stat. 

1263; see Buckley, 424 U.S. at 62-64. In Buckley v. 

Valeo, supra, this Court recognized the facial constitutionality of that regime, including a provision that, 

as construed by the Court, required any entity spending more than $100 in a calendar year “for communications that expressly advocate the election or defeat 

of a clearly identified candidate” to disclose, inter 

alia, information about donors who had given the 
3 

entity more than $100. 424 U.S. at 80; see 2 U.S.C. 

434(b)(2) and (e) (Supp. IV 1974). The Court concluded that FECA’s disclosure requirements, as it construed them, were constitutional, see Buckley, 424 

U.S. at 64-84, except in the limited circumstance in 

which an entity could show that compliance would 

result in a “reasonable probability” of “threats, harassment, or reprisals,” id. at 74. 

The Court held that, as a general matter, disclosure requirements serve “governmental interests 

sufficiently important to outweigh” the privacy interests of donors. Buckley, 424 U.S. at 66. The Court 

explained that recordkeeping and reporting can “provide[] the electorate with information” that could “aid 

the voters in evaluating those who seek federal office,” 

id. at 66-67; can “deter actual corruption and avoid the 

appearance of corruption by exposing large contributions and expenditures to the light of publicity,” id. at 

67; and can “gather[] the data necessary to detect 

violations of the contribution limitations” that are also 

part of federal law, id. at 68. With respect to the 

particular disclosure requirements imposed on entities whose spending is not coordinated with a candidate, the Court explained that “the informational 

interest” in that context “can be as strong as it is” for 

coordinated spending, because the “disclosure helps 

voters to define more of the candidates’ constituencies.” Id. at 81. The Court also observed that “disclosure requirements—certainly in most applications—

appear to be the least restrictive means of curbing the 

evils of campaign ignorance and corruption that Congress found to exist.” Id. at 68.

2. a. The current federal disclosure regime was 

adopted in the Bipartisan Campaign Reform Act of 2002
4 

(BCRA), Pub. L. No. 107-155, § 201, 116 Stat. 88-90, 

following lengthy experience with “abuse of” the original FECA regime by entities “us[ing] * * * purported 

‘issue ads’ to influence federal elections” while “concealing their identities from the public.” McConnell v. 

FEC, 540 U.S. 93, 196 (2003) (citation and internal 

quotation marks omitted). The current law imposes 

certain reporting requirements on a “person”—defined 

to include individuals, corporations, organizations, 

and other groups, 52 U.S.C. 30101(11)—who spends 

more than $10,000 in a calendar year to produce or 

broadcast “electioneering communications.” 52 U.S.C. 

30104(f)(1). 

The term “electioneering communication” is defined, in the context of congressional elections, as a 

“broadcast, cable, or satellite communication” that 

(1) “refers to a clearly identified candidate”; (2) is 

made within 60 days before a general election, or 

within 30 days before a primary election or nominating convention; and (3) “is targeted to the relevant 

electorate.” 52 U.S.C. 30104(f)(3)(A)(i). A corporation 

that spends more than the threshold amount on such 

communications must report those disbursements, 

along with “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); 

see 52 U.S.C. 30104(f)(2); 11 C.F.R. 104.20(c); see also

Van Hollen, Jr. v. FEC, 811 F.3d 486, 501 (D.C. Cir. 

2016) (upholding regulation’s purpose requirement). 

If the corporation’s disbursements were made out of a 

“segregated bank account” established to pay for 

electioneering communications, the corporation is 

required to identify only those individuals who contrib-
5 

uted $1000 or more to that segregated account. 52 

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

b. In McConnell v. FEC, supra, this Court “reject[ed]” a “facial challenge to the requirement to 

disclose individual donors” when an organization substantially funds electioneering communications. 540 

U.S. at 199. The Court held that “Buckley forecloses” 

such a challenge. Id. at 197. The Court explained that 

“the important state interests that prompted the 

Buckley Court to uphold FECA’s disclosure requirements—providing the electorate with information, 

deterring actual corruption and avoiding any appearance thereof, and gathering the data necessary to 

enforce more substantive electioneering restrictions—

apply in full to BCRA.” McConnell, 540 U.S. at 196. 

The Court therefore concluded that “Buckley amply 

supports application of [the] disclosure requirements 

to the entire range of ‘electioneering communications.’” Ibid. The Court “rejected the notion that the 

First Amendment requires Congress to treat so-called 

issue advocacy differently from express advocacy,” 

holding that Congress had permissibly defined the 

term “‘electioneering communication’” to include 

advertisements that mention a candidate in the run-up 

to an election but “do not urge the viewer to vote for 

or against a candidate in so many words.” Id. at 193, 

194; see id. at 321 (opinion of Kennedy, J.) (agreeing 

that relevant disclosure requirements are facially 

constitutional). 

In Citizens United v. FEC, 558 U.S. 310 (2010), the 

Court upheld BCRA’s disclosure requirements as 

applied to an advocacy group’s dissemination of a 

movie about a presidential candidate and ads promoting that movie. Id. at 366-371; see id. at 319-320. The 
6 

Court explained that “the public has an interest in 

knowing who is speaking about a candidate shortly 

before an election,” and it found that “informational 

interest alone” to be “sufficient to justify application” 

of the disclosure requirements. Id. at 369; see id. at 

371; see also id. at 370 (noting absence of evidence 

showing “a reasonable probability that the [plaintiff]

group’s members would face threats, harassment, or 

reprisals if their names were disclosed”). The Court 

reiterated its longstanding view that a disclosure 

requirement is valid so long as it bears “a ‘substantial 

relation’” to “a ‘sufficiently important’ governmental 

interest.” Id. at 366 (quoting Buckley, 424 U.S. at 64, 

66). The Court explained that “disclosure is a less 

restrictive alternative to more comprehensive regulations of speech,” id. at 369, because, although “disclosure requirements may burden the ability to speak,” 

id. at 366, such requirements “impose no ceiling on 

campaign-related activities, and do not prevent anyone from speaking,” ibid. (citations and internal quotation marks omitted). And the Court specifically 

“reject[ed] th[e] contention” that BCRA’s “disclosure 

requirements * * * must be confined to speech that

is the functional equivalent of express advocacy” for 

or against the election of a particular candidate. Id. at 

368-369. 

3. Appellant is a nonprofit corporation with taxexempt status under 26 U.S.C. 501(c)(3). J.S. App. 6-

7. In 2014, appellant sought to air a radio advertisement in Colorado that would refer to Colorado’s thenSenator Mark Udall within 60 days of the federal 

election in which he was a candidate to retain his seat. 

Id. at 7. The proposed advertisement would urge listeners to call Senator Udall and Colorado’s other Senator 
7 

and “[t]ell them to support” a particular criminaljustice bill. Id. at 8 (citation omitted). Appellant 

alleged that it would spend at least $10,000 on the 

advertisement and that it would solicit contributions, 

including in amounts greater than $1000 per donor, 

for the purpose of disseminating it. Id. at 8, 60, 62.

Recognizing that the proposed advertisement 

constituted an “electioneering communication” under 

BCRA, and that its activities would trigger statutory 

reporting requirements, appellant brought a preenforcement suit against the Federal Election Commission, alleging that BCRA’s disclosure requirements would be unconstitutional as applied to its 

proposed expenditures. J.S. App. 9, 18; see 52 U.S.C. 

30106(b)(1), 30107(a)(7), 30108, 30109, 30111(a)(8) and 

(d) (delineating authority of the Commission to 

enforce federal campaign-finance laws). The case was 

ultimately assigned to a three-judge district court, in 

accordance with the procedures for constitutional 

claims set forth in Section 403(a)(3) of BCRA, 116 

Stat. 113-114 (52 U.S.C. 30110 note). See J.S. App. 

9-10. 

The district court granted summary judgment to 

the Commission. J.S. App. 3-36. The court held as a 

threshold matter that the completion of the 2014 election cycle had not mooted the case because appellant 

had “made clear at oral argument that it still desire[d] 

to run this particular advertisement during the 2016 

general election,” in which the other Senator “referenced in the advertisement” was a candidate for 

reelection. Id. at 17-18; see id. at 11-17 (questioning 

whether case might otherwise be moot). On the merits, appellant argued that BCRA’s requirement to 

disclose certain donor information cannot constitu-
8 

tionally be applied to purported “genuine issue advocacy.” Id. at 18-19. Appellant also argued that its 

status as a nonprofit subject to 26 U.S.C. 501(c)(3)

entitled it to a constitutional exemption “from the 

large-donor disclosure requirement.” J.S. App. 19. 

The court rejected those contentions, stating that they 

“founder on Supreme Court precedent.” Ibid. 

The district court observed that this Court, in 

McConnell and Citizens United, “has twice considered 

and twice upheld” the relevant disclosure requirements, “and in doing so has rejected the very type of 

issue-centered exception” that appellant advocated. 

J.S. App. 19-20. The court found it “hard to see any 

constitutional daylight between [appellant’s] issue 

advertisement and the issue advocacy to which the 

Supreme Court has already held that [BCRA’s] disclosure requirements can permissibly be applied.” Id.

at 24. “Under McConnell and Citizens United,” the 

court explained, “it is the tying of an identified candidate to an issue or message that justifies [BCRA’s] 

tailored disclosure requirements because that linkage 

gives rise to the voting public’s informational interest 

in knowing ‘who is speaking about a candidate shortly 

before an election.’” Ibid. (quoting Citizens United, 

558 U.S. at 369). The court also found appellant’s 

“proposed constitutional exception for ‘genuine’ issue 

advocacy” to be “entirely unworkable as a constitutional rule.” Ibid. The court observed, inter alia, that 

appellant’s own advertisement “could very well be 

understood by Coloradoans as criticizing [a] Senate 

candidate’s position,” because it “at least implies” that 

the candidate has not yet expressed support for the 

legislative initiative that the advertisement promotes. 

Id. at 25-26. 
9 

The district court further held that the requirement to disclose the identity of large contributors, as 

applied to appellant’s proposed expenditures, would 

satisfy the requisite degree of scrutiny under the 

First Amendment. J.S. App. 29-33. The court explained that the requirement “advances substantial 

and important governmental interests,” id. at 30, 

because, inter alia, “[p]roviding the electorate with 

information about the source of the advertisement will 

allow voters to evaluate the message more critically 

and to more fairly determine the weight it should 

carry in their electoral judgments,” id. at 31. The 

court further held that the requirement “is tailored to 

substantially advance” that interest because it does 

not limit speech or other election-related activities, 

and because disclosure is mandated for “only those 

substantial donors who contribute $1000 or more, and 

do so for the specific purpose of supporting the advertisement.” Ibid. 

The district court also rejected appellant’s contention that its status as a Section 501(c)(3) nonprofit 

“makes a constitutional difference.” J.S. App. 33. The 

court explained that the First Amendment permits 

disclosure provisions that regulate communications 

based on their “reference to electoral candidates, and 

not on the speaker’s identity or taxpaying status.” 

Ibid. (citing McConnell, 540 U.S. at 194). The court

also noted that speaker-based distinctions are themselves constitutionally questionable. Id. at 33-34.

ARGUMENT

The district court correctly recognized that this 

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

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

(2010), foreclose appellant’s constitutional claim. 
10

Those decisions, which upheld BCRA’s disclosure 

regime in circumstances materially indistinguishable 

from this case, make clear that a nonprofit organization’s electioneering communication cannot be constitutionally exempted from BCRA’s disclosure requirements by labeling it “issue advocacy.” The appeal 

should therefore be dismissed for lack of a substantial 

federal question. In the alternative, the judgment of 

the district court should be affirmed.2

1. This Court “has twice considered and twice upheld” the BCRA disclosure requirements that appellant challenges here, “and in doing so has rejected the 

very type of issue-centered exception” that appellant 

seeks. J.S. App. 19. 

The Court held in McConnell that “Buckley forecloses a facial attack” on BCRA’s requirements to 

“disclos[e] * * * the names of persons contributing 

$1,000 or more to segregated funds or individuals that 

spend more than $10,000 in a calendar year on electioneering communications.” 540 U.S. at 197; see id.

at 321 (opinion of Kennedy, J.). The Court explained 

that “the important state interests that prompted the 

Buckley Court to uphold FECA’s disclosure requirements,” including the interest in “providing the electorate with information,” also “apply in full to BCRA.” 

Id. at 196. The Court accordingly concluded that 

 

2 Although the election cycles in which appellant proposed to run 

its original advertisement have now passed, this case fits within 

the exception to mootness for “disputes that are capable of repetition, yet evading review,” FEC v. Wisconsin Right to Life, Inc., 

551 U.S. 449, 462 (2007), because appellant has credibly stated that 

it “inten[ds] in future years to run substantively similar advertisements to the one at issue,” J.S. App. 46. See Wisconsin Right 

to Life, Inc., 551 U.S. at 462-463 (applying mootness exception in 

similar circumstances). 
11

“Buckley amply supports application of [the relevant] 

disclosure requirements to the entire range of ‘electioneering communications’” as defined in BCRA. 

Ibid. The Court specifically rejected the proposition 

that “the First Amendment erects a rigid barrier 

between express advocacy and so-called issue advocacy” that would require narrowing the range of communications to which the disclosure requirements 

apply. Id. at 193; see id. at 195. The Court also highlighted substantial “evidence concerning the use of 

purported ‘issue ads’ to influence federal elections.” 

Id. at 196. 

The Court in Citizens United reaffirmed that the 

First Amendment does not limit application of 

BCRA’s disclosure requirements to communications 

that are express advocacy or its functional equivalent. 

That case presented, inter alia, an as-applied challenge to the disclosure requirements premised on the 

contention that those requirements “must be confined 

to speech that is the functional equivalent of express 

advocacy.” 558 U.S. at 368; see id. at 366. The Court

“reject[ed] [that] contention” and upheld the disclosure requirements’ application to three advertisements that were not themselves subject to BCRA’s 

ban on corporate financing. Id. at 369; see id. at 367. 

The Court emphasized that “the public has an interest 

in knowing who is speaking about a candidate shortly 

before an election,” and it found that “informational 

interest alone [to be] sufficient to justify application” 

of the disclosure requirements in that case. Id. at 367. 

The result reached by the district court in this case 

follows directly from this Court’s decisions in 

McConnell and Citizens United. “There is no dispute 

that [appellant’s] advertisement meets the statutory 
12

definition of an electioneering communication.” J.S. 

App. 18. And as the courts of appeals have consistently recognized, the Court in Citizens United “upheld 

federal disclaimer and disclosure requirements applicable to all ‘electioneering communications.’” Free 

Speech v. FEC, 720 F.3d 788, 795-796 (10th Cir. 2013)

(citation omitted), cert. denied, 134 S. Ct. 2288 (2014). 

See Vermont Right to Life Comm., Inc. v. Sorrell, 758 

F.3d 118, 131 (2d Cir. 2014) (explaining that contention that disclosure requirements should be limited to 

express advocacy “cannot be squared with Citizens 

United”), cert. denied, 135 S. Ct. 949 (2015); Center 

for Individual Freedom v. Madigan, 697 F.3d 464, 484 

(7th Cir. 2012) (“Citizens United made clear that the 

wooden distinction between express advocacy and 

issue discussion does not apply in the disclosure context.”); National Org. for Marriage v. McKee, 649

F.3d 34, 54-55 (1st Cir. 2011) (“We find it reasonably 

clear, in light of Citizens United, that the distinction 

between issue discussion and express advocacy has no 

place in First Amendment review of these sorts of 

disclosure-oriented laws.”), cert. denied, 132 S. Ct. 

1635 (2012); Human Life of Wash. Inc. v. Brumsickle, 

624 F.3d 990, 1016 (9th Cir. 2010) (“Given the Court’s 

analysis in Citizens United, and its holding that the 

government may impose disclosure requirements on 

speech, the position that disclosure requirements 

cannot constitutionally reach issue advocacy is unsupportable.”), cert. denied, 562 U.S. 1217 (2011); see also 

Independence Inst. v. Williams, 812 F.3d 787, 795 

(10th Cir. 2016) (“It follows from Citizens United that 

disclosure requirements can, if cabined within the 

bounds of exacting scrutiny, reach beyond express 

advocacy to at least some forms of issue speech.”).
13

2. Appellant’s arguments on appeal are foreclosed 

by McConnell and Citizens United. 

a. Appellant’s discussion of the degree of scrutiny 

applicable to disclosure requirements (J.S. 3, 24-28), 

largely elides the distinctions this Court has drawn 

between disclosure requirements and actual restrictions on speech. The Court has repeatedly emphasized that disclosure requirements like BCRA’s 

“‘impose no ceiling on campaign-related activities,’ 

* * * and ‘do not prevent anyone from speaking.’” 

Citizens United, 558 U.S. at 366 (quoting McConnell, 

540 U.S. at 201; Buckley v. Valeo, 424 U.S. 1, 64 (1976) 

(per curiam)). The Court has therefore held that such 

requirements do not violate the First Amendment so 

long as the government identifies a ‘substantial relation’ between the disclosure requirement and a ‘sufficiently important’ governmental interest.” Id. at 366-

367 (quoting Buckley, 424 U.S. at 64, 66); see 

McConnell, 540 U.S. at 231-232. 

In McConnell and Citizens United, the Court held 

that the BCRA disclosure requirements satisfy that

standard. See Citizens United, 558 U.S. at 368-369; 

McConnell, 540 U.S. at 189-198. Contrary to appellant’s contention (J.S. 23-24, 31-33), the district court 

in this case did not err in applying that same standard 

to reach that same result. Even apart from this 

Court’s square holdings in McConnell and Citizens 

United, those decisions include subsidiary determinations that supported the district court’s analysis. The 

district court’s treatment of the government’s informational interest as a substantial one (J.S. App. 30) is 

consistent with this Court’s determination that the 

government has a substantial interest in ensuring that 

the public is informed about the source of electioneer-
14

ing communications and does not misattribute those 

communications to the candidate or a political party. 

See Citizens United, 558 U.S. at 368-369. And the 

district court’s conclusion that “the large-donor disclosure requirement is tailored to substantially advance [the government’s] interests” (J.S. App. 31)

reflects this Court’s determination that the government’s interests “amply support[] application of [the 

relevant] disclosure requirements to the entire range 

of ‘electioneering communications,’” McConnell, 540 

U.S. at 196; see Citizens United, 558 U.S. at 369 (finding that “the informational interest alone is sufficient 

to justify application of [the disclosure requirements] 

to [Citizens United’s] ads”).

Appellant characterizes (J.S. 19) the district court’s 

approach in this case as endorsing “essentially unlimited compulsory disclosure of personal association so 

long as public affairs * * * [are] being discussed.” 

In fact, the court’s analysis was tied to the particular 

communication that appellant proposed to make 

(which would “link[] an electoral candidate to a political issue * * * in the run up to a federal election”) 

and the particular disclosure requirement that appellant identified as objectionable (which “is limited to 

only those substantial donors who contribute $1000 or 

more, and do so for the specific purpose of supporting 

the advertisement”). J.S. App. 30-31; see McConnell, 

540 U.S. at 196 n.81 (noting that BCRA’s disclosure 

requirements “are actually somewhat less intrusive” 

than the FECA requirements they replaced). 

b. McConnell and Citizens United directly refute

appellant’s contention that Buckley established an 

“issue speech” exception to disclosure requirements 

by “limit[ing] disclosure only to groups speaking un-
15

ambiguously about candidates.” J.S. 3 (emphasis, 

citation, and internal quotation marks omitted). Appellant bases that contention on the Buckley Court’s 

construction of the then-existing FECA disclosure 

provisions “to reach only funds used for communications that expressly advocate the election or defeat of 

a clearly identified candidate.” 424 U.S. at 80 (footnote omitted); see J.S. 12-15. As the Court explained 

in McConnell, however, Buckley’s “express advocacy

limitation * * * was the product of statutory interpretation rather than a constitutional command.” 540 

U.S. at 191-192. In both McConnell and Citizens 

United, the Court recognized that BCRA’s disclosure 

requirements can constitutionally be applied to all 

advertisements that “fall within BCRA’s definition of 

an ‘electioneering communication,’” Citizens United, 

558 U.S. at 368, regardless of whether those advertisements are characterized as “express” or “issue” 

advocacy, McConnell, 540 U.S. at 195. See Citizens 

United, 558 U.S. at 368-369; McConnell, 540 U.S. at 

189-198. 

Appellant suggests that a footnote in McConnell 

reserved the question whether BCRA’s disclosure 

requirements can constitutionally be applied to “genuine issue ads.” J.S. 15 (quoting McConnell, 540 U.S. 

at 206 n.88). But the footnote on which appellant 

relies did not appear in the section of McConnell that 

addressed BCRA’s disclosure requirements. Instead, 

it appeared in a section addressing a different BCRA 

provision, which prohibited corporations and unions 

from using treasury funds for electioneering communications. See 540 U.S. at 202-209. Although that 

prohibition was ultimately held unconstitutional in 

Citizens United, see 558 U.S. at 319, the Court reaf-
16

firmed that the government “may regulate corporate 

political speech through disclaimer and disclosure 

requirements,” ibid., including by applying to electioneering communications the specific disclosure 

requirements that appellant challenges here, see id. at 

366-371.

c. Appellant’s reliance (J.S. 16-18, 31) on this 

Court’s decision in FEC v. Wisconsin Right to Life, 

Inc., 551 U.S. 449 (2007) (WRTL), is similarly misplaced. The controlling opinion in that case invalidated BCRA’s ban on the financing of electioneering 

communications with corporate and union treasury 

funds to the extent that such communications did not 

constitute express advocacy or its “functional equivalent.” Id. at 476, 478-479 (opinion of Roberts, C.J.). 

As appellant acknowledges, however, the plaintiff in 

that case “did not challenge the scope of BCRA’s 

disclosure regime” (J.S. 16), and this Court in WRTL

did not address BCRA’s disclosure provisions. 

Relying on the controlling opinion in WRTL, the 

plaintiff in Citizens United argued that BCRA’s disclosure requirements “must be confined to speech that 

is the functional equivalent of express advocacy.” 558 

U.S. at 368. The Court “reject[ed] th[at] contention.” 

Id. at 369; see ibid. (“[W]e reject [the] contention that 

the disclosure requirements must be limited to speech 

that is the functional equivalent of express advocacy.”). And, contrary to appellant’s characterization, 

the Court did not do so by “ipse dixit” and “without 

explanation,” J.S. 19, but instead provided “reasons” 

why disclosure requirements should be viewed differently from spending restrictions in this respect, Citizens United, 558 U.S. at 369. The Court explained

that “disclosure is a less restrictive alternative to 
17

more comprehensive regulations of speech”; that 

Buckley had “upheld a disclosure requirement for 

independent expenditures [i.e., expenditures not coordinated with a candidate] even though it invalidated a 

provision that imposed a ceiling on those expenditures”; that in McConnell, “three Justices who would 

have found [a direct funding ban] to be unconstitutional nonetheless voted to uphold BCRA’s disclosure 

and disclaimer requirements”; and that in United 

States v. Harriss, 347 U.S. 612 (1954), the Court had 

“upheld registration and disclosure requirements on 

lobbyists, even though Congress has no power to ban 

lobbying itself.” Citizens United, 558 U.S. at 369. 

d. Appellant’s efforts to distinguish this case from 

McConnell and Citizens United are misconceived. 

Focusing on the specific content of the communications at issue in Citizens United, appellant contends 

(J.S. 20) that the Court’s decision in that case is “best 

understood” as limited to circumstances in which

BCRA’s disclosure requirements are applied to electioneering communications that are “part of a clear 

electoral effort.” But if the Court in Citizens United

had intended to confine its holding in that manner, it 

would not have explicitly “reject[ed] [the] contention 

that the disclosure requirements must be limited to 

speech that is the functional equivalent of express 

advocacy.” 558 U.S. at 369. Nor would the Court have 

clarified 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.” Ibid.3 

 

3

 Appellant does not explain or substantiate its supposition (J.S. 

31) that disclosure of the financing of its proposed advertisement 

could “confuse voters” by “lead[ing] voters to believe that [appel-
18

Appellant’s attempt (J.S. 33-34) to distinguish this 

case from Citizens United based on appellant’s status

as a Section 501(c)(3) corporation is also unavailing. 

The Court’s decision in Citizens United did not turn 

on the tax status of the plaintiff, which the Court described simply as “a nonprofit corporation,” 558 U.S. at 

319, a phrase that equally describes appellant. Rather, 

the Court focused on the plaintiff’s dissemination of 

electioneering communications, see id. at 366-371, an activity in which appellant similarly proposes to engage. 

Appellant emphasizes that, as a corporation organized under 26 U.S.C. 501(c)(3), it “is prohibited by 

[federal tax] law from engaging in political campaign 

intervention.” J.S. 33. But appellant clearly (and reasonably) does not view that restriction to prohibit it 

from disseminating its proposed electioneering communication. See Erika K. Lunder & L. Paige Whitaker, Cong. Research Serv., R40141, 501(c)(3)s and 

Campaign Activity: Analysis Under Tax and Campaign Finance Laws 7-8 (2013) (“[A]n issue advocacy 

communication, depending on its timing and content, 

might be an electioneering communication under 

FECA, but might not be treated as campaign intervention under the [Internal Revenue Code].”). And 

appellant offers no sound reason why the First 

Amendment would apply differently to it than to another organization that runs the same advertisement. 

Cf. Simon & Schuster, Inc. v. Members of the N.Y.

 

lant] and its donors support or oppose Colorado’s Senators, where 

it in fact does not.” Some voters might infer from the content of 

the advertisement itself that appellant did not support the Senators referenced in it. But there is no evident reason that a voter 

who did not draw such an inference from the advertisement would 

be led to do so by disclosure of appellant’s funding sources. 
19

State Crime Victims Bd., 502 U.S. 105, 117 (1991) 

(“The government’s power to impose content-based 

financial disincentives on speech surely does not vary 

with the identity of the speaker.”). 

Appellant asserts (J.S. 34) that Section 501(c)(3) 

organizations that run such advertisements face the 

“risk of ideologically opposed organizations filing 

complaints against them.” But even assuming that 

were so, appellant fails to connect the filing of such 

complaints against the organization with the particular requirement that it challenges here, which involves 

the disclosure of contributors. In any event, appellant’s argument would provide no basis for disturbing 

the decision below, as appellant has previously stipulated that it is not challenging BCRA’s disclosure 

requirement based on anticipated “threats, harassment, or reprisals,” Citizens United, 558 U.S. at 367

(citation omitted). See J.S. App. 21 n.5. 

CONCLUSION

 The appeal should be dismissed for lack of a 

substantial federal question. In the alternative, the 

judgment of the district court should be affirmed.

Respectfully submitted. 

LISA J. STEVENSON

Acting General Counsel

KEVIN DEELEY

Associate General Counsel 

ERIN CHLOPAK

Acting Assistant General

Counsel

GREG J. MUELLER

Attorney

Federal Election Commission

IAN HEATH GERSHENGORN

Acting Solicitor General

JANUARY 2017