UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

_______________________________________

 ) 

INDEPENDENCE INSTITUTE, ) 

 ) 

 Plaintiff, ) 

 ) Civ. No. 14-1500 (CKK, PAM, APM) 

 v. ) 

 ) 

 ) 

FEDERAL ELECTION COMMISSION, ) REPLY MEMORANDUM 

 ) 

 Defendant. ) 

_______________________________________) 

FEDERAL ELECTION COMMISSION’S REPLY MEMORANDUM 

IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT 

Daniel A. Petalas (D.C. Bar No. 467908) 

Acting General Counsel 

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

Deputy General Counsel — Law 

Kevin Deeley 

Associate General Counsel 

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

Acting Assistant General Counsel 

Greg J. Mueller (D.C. Bar No. 462840) 

Attorney 

FEDERAL ELECTION COMMISSION

999 E Street N.W. 

 Washington, DC 20463 

September 2, 2016 (202) 694-1650

Case 1:14-cv-01500-CKK-PAM-APM Document 48 Filed 09/02/16 Page 1 of 31
i

TABLE OF CONTENTS 

 Page 

ARGUMENT .............................................................................................................................3

I. THE SUPREME COURT HAS ALREADY HELD THAT BCRA’S EC 

DISCLOSURE REQUIREMENT IS “EASILY UNDERSTOOD AND 

OBJECTIVELY DETERMINABLE,” AND MAY CONSTITUTIONALLY 

BE APPLIED TO THE “ENTIRE RANGE” OF ECS ..................................................3 

A. BCRA Imposes Event-Driven Disclosure Requirements on a Narrow 

and Objectively Defined Category of Communications ....................................3 

B. Plaintiff’s Bare Attempts to Dismiss the Supreme Court’s Disclosure 

Holdings in McConnell and Citizens United Are Fatally Flawed ......................5 

C. Plaintiff’s Reformulated “Unambiguously Campaign Related” Argument 

Would Reduce BCRA’s Clarity and is Foreclosed by Citizens United .............8 

D. A Majority of the Courts of Appeals Have Confirmed that 

Citizens United Precludes the “Issue Advocacy” Disclosure Exception 

Plaintiff Seeks Here .........................................................................................12 

E. Plaintiff is Unable to Distinguish the Analogous Cases Upholding 

Disclosure Requirements in the Context of Ballot Initiatives ........................ 13

F. Citizens United Explicitly Supports the Commission’s Discussion of 

Analogous Cases Upholding Lobbying Disclosure Requirements................. 14

G. Plaintiff’s Tax Status is Irrelevant to the Question Whether BCRA’s EC 

Disclosure Requirement May Constitutionally Apply to Plaintiff’s 

Proposed Electioneering Communication ........................................................15 

 1. Citizens United is Inconsistent with Plaintiff’s 

 Tax-Status Argument ...........................................................................15 

 2. Plaintiff’s Tax-Status Argument Lacks Any Legal Basis ....................16 

II. PLAINTIFF STILL FAILS TO IDENTIFY ANY UNCONSTITUTIONAL 

BURDEN ARISING FROM THE EC DISCLOSURE REQUIREMENTS ...............20 

A. Plaintiff Has Stipulated and the Court Has Ordered that this Case Does Not 

Involve a “Reasonable Probability” of Threats, Harassment, or Reprisals .....20 

Case 1:14-cv-01500-CKK-PAM-APM Document 48 Filed 09/02/16 Page 2 of 31
ii

B. The Voluntary Option to Finance ECs from a Separate Bank Account is 

Not an Unconstitutional Burden ......................................................................22 

III. THE LEGALITY AND FEASIBILITY OF PLAINTIFF’S PREFERRED 

ALTERNATIVE DISCLOSURE RULE DOES NOT DEMONSTRATE THAT 

THE EXISTING RULE IS UNCONSTITUTIONAL .................................................23

CONCLUSION ........................................................................................................................25

Case 1:14-cv-01500-CKK-PAM-APM Document 48 Filed 09/02/16 Page 3 of 31
iii

TABLE OF AUTHORITIES 

Cases Page

Brown v. Bd. of Ed., 347 U.S. 483 (1954) ...............................................................................24

Buckley v. Am. Constitutional Law Found., Inc., 525 U.S. 182 (1999) ...................................14

Buckley v. Valeo, 424 U.S. 1 (1976) ..........................................................................................5 

Buckley v. Valeo, 519 F.2d 821 (D.C. Cir. 1975) .................................................................. 4-5

*Citizens United v. FEC, 558 U.S. 310 (2010) ..................1, 4, 5, 6, 7, 8, 11, 14, 15, 20, 23, 25

Ctr. for Competitive Politics v. Harris, 784 F.3d 1307 (9th Cir.) ...............................16, 21, 22

Ctr. for Individual Freedom v. Madigan, 697 F.3d 464 (7th Cir. 2012) .................................13

Del. Strong Families v. Attorney Gen. of Del., 793 F.3d 304 (3d Cir. 2015) ..............12, 18, 19 

Doe v. Reed, 561 U.S. 186 (2010) .....................................................................................14, 22

First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765 (1978) ....................................................13

Human Life of Wash. Inc. v. Brumsickle, 624 F.3d 990 (9th Cir. 2010) ..................................13

Indep. Inst. v. FEC, 816 F.3d 113 (D.C. Cir. 2016) ...............................................................6, 7 

Indep. Inst. v. FEC, 70 F. Supp. 3d 502 (D.D.C. 2014) ......................................................... 7-8 

Indep. Inst. v. Williams, 812 F.3d 787 (10th Cir. 2016) ................................2, 4, 10, 11, 12, 24 

*McConnell v. FEC, 540 U.S. 93 (2003) .............................................................1, 4, 5, 6, 9, 25 

McIntyre v. Ohio Elections, 514 U.S. 334 (1995) ............................................................. 13-14

Moses v. Howard Univ. Hosp., 606 F.3d 789 (D.C. Cir. 2010) ...............................................21

Nat’l Org. for Marriage v. McKee, 649 F.3d 34 (1st Cir. 2011) .............................................13

Shays v. FEC, 337 F. Supp. 2d 28 (D.D.C. 2004) ...................................................................18 

SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir. 2010) .........................................................13

United States v. Harriss, 347 U.S. 612 (1954) ........................................................................14

Case 1:14-cv-01500-CKK-PAM-APM Document 48 Filed 09/02/16 Page 4 of 31
iv

Worley v. Fla. Sec’y of State, 717 F.3d 1238 (11th Cir. 2013) ................................................14

Zuckman v. Monster Beverage Corp., 958 F. Supp. 2d 293 (D.D.C. 2013) ............................21

Statutes and Regulations 

26 U.S.C. § 6104(d)(3) ............................................................................................................17

26 U.S.C. § 6104(d)(3)(A) .......................................................................................................16

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

52 U.S.C. § 30104(f)(2)(E) ......................................................................................................22

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

11 C.F.R. § 100.29(a)(2) ........................................................................................................ 3-4 

11 C.F.R. § 104.20(c)(7) ..........................................................................................................22

Miscellaneous 

Erika K. Lunder, L. Paige Whitaker, Congressional Research Service, 501(c)(3)s and Campaign 

Activity: Analysis Under Tax and Campaign Finance Laws, 7-8 (Sept 10, 2013), available at

http://electionlawblog.org/wp-content/uploads/CRS-Report-on-IRS-Line-Between-IssueAdvocacy-and-Campaign-Activity-2013.pdf .............................................................. 17-18 

Case 1:14-cv-01500-CKK-PAM-APM Document 48 Filed 09/02/16 Page 5 of 31
 The Federal Election Commission (“FEC” or “Commission”) showed in its opening brief 

that the narrow, event-driven disclosure requirements for federal “electioneering 

communications” (“ECs”) are constitutional both on their face and as applied to 

communications, like plaintiff Independence Institute’s proposed broadcast advertisement, that 

mention a federal candidate shortly before an election without expressly advocating for or 

against that candidate. As the Commission explained, this renewed constitutional challenge to 

the Bipartisan Campaign Reform Act’s (“BCRA”) EC disclosure requirements is foreclosed by 

two Supreme Court decisions upholding those precise disclosure requirements for the “entire 

range” of federal ECs and explicitly rejecting the central arguments plaintiff has asserted here.

McConnell v. FEC, 540 U.S. 93, 190-202 (2003); Citizens United v. FEC, 558 U.S. 310, 366-71 

(2010); see FEC Br. in Supp. of its Mot. for Summ. J. and Opp’n to Pl.’s Mot. for Summ. J. at 

13-20, ECF No. 42 (“FEC Br.”). Indeed, and as the Commission also explained (FEC Br. at 18-

21), plaintiff’s contorted interpretations of the eight-justice opinions in McConnell and Citizens

United are belied not only by the unambiguous holdings in those cases but also by decisions of a 

majority of the United States circuit courts of appeals, which have collectively interpreted

Citizens United as permitting disclosure requirements in a broad range of contexts, including as 

applied to analogous state EC provisions. These Supreme Court and court of appeals decisions 

not only confirm the constitutionality of the challenged EC provisions, they also underscore the 

lack of any unconstitutional burden resulting from plaintiff’s obligation to comply with that 

narrow, event-driven disclosure requirement. (See FEC Br. at 26, 37-38.)

Plaintiff’s response to the FEC’s motion confirms the weakness of its claims. Although 

plaintiff premised this action on its original contention that BCRA’s EC disclosure requirement 

must be limited to communications that advocate for or against a federal candidate, it is now 

Case 1:14-cv-01500-CKK-PAM-APM Document 48 Filed 09/02/16 Page 6 of 31
2

attempting to reformulate that position. (Compare V. Compl. ¶ 122, ECF No. 1; Indep. Inst. 

Mot. for Summ. J. and Mem. in Supp. at 14, 37, ECF No. 36 (“Pl.’s Summ. J. Mem.”), with

(Indep. Inst. Consol. Opp’n to Def.’s Cross-Mot. for Summ. J. and Reply in Supp. of its Mot. for 

Summ. J. at 11 & n.14, ECF No. 46 (“Pls.’s Opp’n”).) Apparently recognizing that its original 

express advocacy argument is irreconcilable with Citizens United and McConnell, plaintiff now 

proposes an “issue-speech-to-express-advocacy spectrum,” which conveniently allows for the 

EC disclosure requirements to apply to Citizens United’s movie ads, but not to plaintiff’s 

advertisement advocating that listeners contact an incumbent candidate to urge support of a 

legislative issue. (Pl.’s Opp’n at 13.) As explained below, and as another court recently 

recognized, even setting aside that plaintiff proposes to add a standard that is less objective than 

what Congress prescribed, the new rule plaintiff now advocates is still foreclosed by Citizens

United, in which the Supreme Court made clear that pre-election advertisements that mention a 

candidate “are deemed sufficiently campaign-related to implicate the government’s interest in 

disclosure.” Indep. Inst. v. Williams, 812 F.3d 787, 796 (10th Cir. 2016) (“Indep. Inst. II”). 

Plaintiff also provides further details about how it is organized and regulated under the 

tax code, and speculates that it could experience reputational and other harm as a result of some 

unidentified person’s failure to distinguish between federal tax and campaign finance provisions. 

But none of plaintiff’s tax-status arguments identifies any basis for finding a constitutional flaw 

in the independent regulation of “electioneering communications,” part of the BCRA 

amendments to the Federal Election Campaign Act (“FECA” or “Act”), 52 U.S.C. § 30104(f). 

Plaintiff’s latest attempt to demonstrate an unconstitutional burden further undermines its 

claims. Plaintiff appears to vacillate between trying to escape its stipulation as to the absence of 

any reasonable probability of threats, harassment, or reprisals, and demonstrating that disclosure 

Case 1:14-cv-01500-CKK-PAM-APM Document 48 Filed 09/02/16 Page 7 of 31
3

“itself” is a violation of plaintiff’s First Amendment rights, despite Supreme Court holdings to 

the contrary. Plaintiff also tries to paint the option of minimizing its disclosure obligations by 

financing its ECs from a separate bank account as unconstitutionally burdensome. Neither that 

voluntary alternative nor more comprehensive disclosure, should plaintiff eschew the separate 

account option, violates plaintiff’s constitutional rights. 

Finally, plaintiff’s discussion of the supposed ease with which this Court could fashion 

the alternative disclosure standard plaintiff would prefer has nothing to do with the question 

whether the clear and objective requirement that Congress selected and the Supreme Court has 

twice upheld violates the First Amendment. It does not. For the reasons detailed below and in 

the FEC’s opening brief, the Court should follow the Supreme Court’s command, reject 

plaintiff’s challenge, and award summary judgment to the Commission. 

ARGUMENT 

I. THE SUPREME COURT HAS ALREADY HELD THAT BCRA’S EC 

DISCLOSURE REQUIREMENT IS “EASILY UNDERSTOOD AND 

OBJECTIVELY DETERMINABLE,” AND MAY CONSTITUTIONALLY BE 

APPLIED TO THE “ENTIRE RANGE” OF ECS

A. BCRA Imposes Event-Driven Disclosure Requirements on a Narrow and 

Objectively Defined Category of Communications 

 Contrary to plaintiff’s overbroad characterization (Pl.’s Opp’n at 11), BCRA’s EC 

disclosure provision does not apply to “all speech that mentions a candidate.” Instead, and as the 

Commission previously described (FEC Br. at 5), the requirement is narrow and applies only to 

broadcast, cable, or satellite communications that refer to a clearly identified candidate for 

federal office, are publicly distributed within 60 days before a general, special, or runoff election 

or 30 days before a primary or preference election, or a political party nominating caucus or 

convention, and are targeted to the relevant electorate. 52 U.S.C. § 30104(f)(3)(A); 11 C.F.R. 

Case 1:14-cv-01500-CKK-PAM-APM Document 48 Filed 09/02/16 Page 8 of 31
4

§ 100.29(a)(2). In McConnell v. FEC, eight Supreme Court justices agreed that the “important 

state interests” generally sufficient to uphold disclosure laws — including providing the 

electorate with information, deterring corruption and avoiding its appearance, and gathering the 

data necessary to enforce other campaign finance provisions (see FEC Br. at 14) — “apply in full 

to BCRA.” 540 U.S. at 196, overruled in part on other grounds, Citizens United v. FEC, 558 

U.S. 310 (2010). And in Citizens United, eight justices again held that BCRA’s EC disclosure 

requirement is “substantially related” to the government’s “sufficiently important” interest in 

ensuring “the public [can] . . . know[] who is speaking about a candidate shortly before an 

election.” Citizens United, 558 U.S. at 369.

BCRA’s EC disclosure requirements do not apply outside the statute’s short pre-election 

windows. For this very reason, plaintiff has been free to broadcast its proposed ad without 

making an EC disclosure for the majority of time this case has been pending. (See FEC Br. at 11 

(explaining that plaintiff’s claims previously appeared to be moot because its proposed ad ceased 

to qualify as an EC following the November 2014 election).) Plaintiff’s particular preference to 

broadcast an ad urging listeners to contact an incumbent Colorado Senator regarding his position 

on a legislative issue only during the short period of time before the Senator is up for reelection

does not render BCRA’s narrow disclosure provision overbroad or otherwise unconstitutional.

As the Tenth Circuit recently recognized in rejecting a similar claim pressed by the same 

plaintiff in a nearly identical case, “[t]he logic of Citizens United is that advertisements that 

mention a candidate shortly before an election are deemed sufficiently campaign-related to 

implicate the government’s interests in disclosure.” Indep. Inst. II, 812 F.3d at 796.1



1

 Plaintiff’s continued reliance (Pl.’s Opp’n at 13-14) on the D.C. Circuit’s 27-year-old 

analysis of a dramatically different, broader, and since-repealed disclosure provision remains 

misplaced for all the reasons detailed in the Commission’s opening brief. (See FEC Br. at 34-

Case 1:14-cv-01500-CKK-PAM-APM Document 48 Filed 09/02/16 Page 9 of 31
5

B. Plaintiff’s Bare Attempts to Dismiss the Supreme Court’s Disclosure 

Holdings in McConnell and Citizens United Are Fatally Flawed 

 Plaintiff’s opposition brief underscores its inability to reconcile its legal arguments with 

the Supreme Court’s disclosure holdings in McConnell and Citizens United. Plaintiff devotes a 

mere two sentences to addressing McConnell’s disclosure holding and abruptly dismisses that 

holding as irrelevant simply because it “was a facial ruling.” (Pl.’s Opp’n at 1.) While it is true 

that McConnell’s facial ruling does not, a fortiori, foreclose all as-applied challenges to the EC 

disclosure provision, the Supreme Court’s disclosure analysis in McConnell, which it reaffirmed 

in Citizens United, 558 U.S. at 368, is of course controlling in this subsequent challenge to the 

exact same provision on the same, already rejected grounds. As the FEC previously explained 

(FEC Br. at 15-16, 17-18), the Supreme Court in McConnell held, as a matter of law, that 

“Buckley [v. Valeo, 424 U.S. 1 (1976) (per curiam),] amply supports application of [BCRA’s] 

disclosure requirements to the entire range of ‘electioneering communications.’” McConnell,

540 U.S. at 196 (emphasis added). The McConnell Court refused to limit EC disclosure to 

communications that contain candidate advocacy, 540 U.S. at 189-90, and explained that while 

Buckley had imposed such a limitation on a different campaign finance provision to address 

vagueness concerns, BCRA’s definition of “electioneering communication” is “both easily 



35.) Contrary to plaintiff’s most recent mischaracterization (Pl.’s Opp’n at 14), BCRA’s EC 

disclosure rule and the since-repealed provision at issue in Buckley v. Valeo, 519 F.2d 821 (D.C. 

Cir. 1975) (per curiam), are not “similar” in their “regulatory scope.” Whereas the provision at 

issue in the 1975 Buckley decision, former 2 U.S.C. § 437a, imposed ongoing political 

committee-type reporting requirements on any group that “commits any act directed to the public 

for the purpose of influencing the outcome of an election,” Buckley, 519 F.2d at 869-70, BCRA’s 

EC disclosure provision is event-driven and applies only to communications that meet the 

narrow and objective statutory criteria, including, inter alia, being broadcast within the short 

period of time immediately before an election. See supra pp. 3-4. And whereas the D.C. Circuit 

invalidated former section 437a on vagueness and overbreadth grounds, Buckley, 519 F.2d at 878 

n.142, the Supreme Court has long since held that BCRA’s EC definition is neither vague nor 

overbroad; its elements “are both easily understood and objectively determinable.” McConnell,

540 U.S. at 194.

Case 1:14-cv-01500-CKK-PAM-APM Document 48 Filed 09/02/16 Page 10 of 31
6

understood and objectively determinable.” Id. at 194. The Court further emphasized the absence 

of a “constitutionally mandated line” between candidate advocacy and issue advocacy, rejecting 

the notion that the First Amendment “erects a rigid barrier” between candidate and issue 

advocacy. Id. at 190, 193-94. The Supreme Court reaffirmed these conclusions in Citizens

United. 558 U.S. at 368-69. 

Plaintiff does not even attempt to identify any basis for this Court to find that the 

Supreme Court’s controlling legal conclusions in McConnell and Citizens United are

inapplicable here. Instead, it effectively asks this Court to ignore the Supreme Court’s directly 

applicable holdings and recognize a First-Amendment-based exception for “issue advocacy” 

disclosure that the Supreme Court has explicitly refused to impose in the precise context of the 

EC disclosure requirements challenged here.2

 Plaintiff further attempts to dismiss Citizens United as inapplicable (Pl.’s Opp’n at 1-2) 

by mischaracterizing the D.C. Circuit’s narrow jurisdictional determination in this case. Plaintiff 

asserts that “the Court of Appeals has already held that Citizens United does not foreclose this 

challenge . . . for two reasons” (id.), but the panel issued no such holding.3

 The Court of 

Appeals concluded only that plaintiff is “‘entitle[d]’ . . . to make its case ‘before a three-judge 

district court’” based on the panel majority’s inability to “say that Independence Institute’s 

attempt to advance its as-applied First Amendment challenge is ‘essentially fictitious, wholly 



2

 As detailed below, there is no dispute that a party may attempt to substantiate a 

harassment-based, as-applied exemption from the EC disclosure requirement, but plaintiffs have 

stipulated that they are not doing so here. See infra pp. 20-22; FEC Br. at 36.

3

 In fact, the D.C. Circuit panel’s only discussion of whether plaintiff’s claims are 

“foreclosed” by Citizens United appears in Judge Wilkins’s dissenting opinion, in which he 

concluded that plaintiff’s “reading of Buckley is squarely foreclosed by subsequent Supreme 

Court precedent” and explained that he would have dismissed the case for lack of jurisdiction 

because plaintiff has merely “repackage[d] an already foreclosed legal theory.” Indep. Inst. v. 

FEC, 816 F.3d 133, 118-19 (D.C. Cir. 2016) (Wilkins, J., dissenting) (emphases added).

Case 1:14-cv-01500-CKK-PAM-APM Document 48 Filed 09/02/16 Page 11 of 31
7

insubstantial, obviously frivolous, and obviously without merit.’” Indep. Inst., 816 F.3d at 117

(quoting Shapiro v. McManus, 136 S. Ct. 450, 456 (2015)). Far from deciding whether 

plaintiff’s substantive legal arguments are contrary to Supreme Court precedent, the Court of 

Appeals clarified that its jurisdictional determination that plaintiff’s claims clear the “low” bar of 

not being “‘essentially fictitious’” or “‘obviously frivolous’” is “not [a] suggest[ion] that 

Independence Institute’s argument is a winner.” Indep. Inst., 816 F.3d at 117 (emphasis added). 

 Likewise erroneous is plaintiff’s misleading suggestion (Pl.’s Opp’n at 2) that the Court 

of Appeals determined that “the Institute and Citizens United differ in organizational mission 

and activity, as reflected in their differing tax status.” The panel majority instead merely 

observed that “Independence Institute’s 501(c)(3) argument may or may not prevail on the 

merits.” Indep. Inst., 816 F.3d at 117 (emphasis added). And, as plaintiff itself concedes in a 

footnote (Pl.’s Opp’n at 2 & n.2), the Court of Appeals did not conclude that “the ad at issue in 

this case cannot fairly be compared to the ads at issue in Citizens United.” The majority 

expressly declined to address that argument. Indep. Inst., 816 F.3d at 117. 

 Finally, plaintiff’s attempt to dismiss Citizens United by misconstruing the Supreme 

Court’s disclosure holding as a determination that Citizens United’s movie ads “should not be 

regulated because they were commercial speech — speech entitled to comparatively-slight 

constitutional protection” (Pl.’s Opp’n at 16 (emphasis added)) is inconsistent with the actual 

language in the Court’s opinion. As the single-judge district court previously recognized, when 

the Supreme Court in Citizens United concluded that “[e]ven if [Citizens United’s] ads only 

pertain to a commercial transaction, the public has an interest in knowing who is speaking about 

a candidate shortly before an election,” 558 U.S. at 369, the Court was “[r]esponding to an 

argument that ‘an informational interest’ did not apply to the Hillary advertisements,” Indep.

Case 1:14-cv-01500-CKK-PAM-APM Document 48 Filed 09/02/16 Page 12 of 31
8

Inst. v. FEC, 70 F. Supp. 3d 502, 510 (D.D.C. 2014), rev’d on other grounds, 816 F.3d 113 (D.C. 

Cir. 2016). Having found a sufficient informational interest in the disclosure of “who is 

speaking about a candidate” in Citizens United’s movie ads, in spite of the “commercial” nature 

of those ads, the Supreme Court explained that “[b]ecause the informational interest alone is 

sufficient to justify application of [BCRA’s EC disclosure provision] to these ads, it is not 

necessary to consider the Government’s other asserted interests.” Citizens United, 558 U.S. 

at 369; see Indep. Inst., 70 F. Supp. 3d at 510 (“In other words, even though [Citizens United’s] 

advertisement encourages someone to watch the movie rather than vote for a candidate, the 

public interest still supports disclosure of ‘who is speaking about a candidate.’”). As the singlejudge district court observed, “[i]n no sense does this language imply that the Supreme Court 

determined that this speech deserved only the lesser First Amendment protections of commercial 

speech.” Id. Plaintiff’s unsupported argument that Citizens United’s disclosure holding is 

limited to “commercial speech” is inconsistent with that opinion and must be rejected. 

C. Plaintiff’s Reformulated “Unambiguously Campaign Related” Argument 

Would Reduce BCRA’s Clarity and is Foreclosed by Citizens United

In its initial court filings, plaintiff premised this action on its contention that “only 

communications that ‘expressly advocate the election or defeat of a clearly identified candidate’” 

may constitutionally be “subject to disclosure.” See V. Compl. ¶ 122; Pl.’s Summ. J. Mem. 

at 14, 37; see also Indep. Inst., 70 F. Supp. 3d at 504 (citing argument in plaintiff’s preliminary 

injunction brief that “the disclosure requirements of BCRA section 201 are overbroad as applied 

because the advertisement is genuine issue advocacy rather than express advocacy or the 

functional equivalent thereof”). Plaintiff alternatively suggested that a communication must at 

least contain “pejorative” (or complimentary) references to a candidate to be constitutionally 

subject to disclosure. See Indep. Inst., 70 F. Supp. 3d at 511-12 (rejecting plaintiff’s “pejorative” 

Case 1:14-cv-01500-CKK-PAM-APM Document 48 Filed 09/02/16 Page 13 of 31
9

argument because “there is nothing in Citizens United limiting the disclosures holding to 

electioneering communications that are pejorative (or, alternatively, complimentary) on their 

face”).

In its latest court filing, plaintiff appears to recognize that its original positions are 

irreconcilable with Citizens United. (E.g. Pl.’s Opp’n at 11 n.14 (arguing that the “functional 

equivalent of express advocacy test” — which the Supreme Court in Citizens United refused to 

adopt as a standard for determining whether campaign finance disclosure requirements are 

constitutional — “may well be . . . the best test” for evaluating disclosure requirements, “[b]ut it 

is not the only test under which the Institute prevails”).) Plaintiff thus tries to further redefine its 

position as allowing for the challenged requirements to apply to a communication that lacks 

candidate advocacy but is nevertheless “campaign related,” while barring the requirements from 

applying to “genuine issue speech.” (Pl.’s Opp’n at 11-14.) According to plaintiff, this new 

position would accommodate Citizens United’s holding that the EC disclosure requirements may 

constitutionally apply to a ten-second movie ad stating “[i]f you thought you knew everything 

about Hillary Clinton . . . wait ’til you see the movie,’” while precluding application of the EC 

disclosure requirements to plaintiff’s proposed radio ad asking listeners to contact Colorado’s 

Senators, one of whom is up for reelection, and “[t]ell them to support” pending legislation 

concerning criminal justice reform. (Pl.’s Summ. J. Mem. at 31-32; Pl.’s Opp’n at 15-16.) 

Plaintiff’s latest position would introduce additional inquiries that are not as “easily 

understood and objectively determinable” as the definition that Congress enacted and the 

Supreme Court endorsed. McConnell, 540 U.S. at 194. For example, plaintiff still fails to offer 

any persuasive basis for reconciling its dual positions that a movie advertisement that neither 

described Hillary Clinton nor identified her as a federal candidate is “unambiguously campaign 

Case 1:14-cv-01500-CKK-PAM-APM Document 48 Filed 09/02/16 Page 14 of 31
10

related,” while its proposed advertisement that links a federal candidate with a legislative issue in 

the period shortly before an election is “entirely divorced from any candidacy.” (Compare Pl.’s

Opp’n at 12, with FEC Br. at 28-29 (explaining that plaintiff’s proposed “pejorative” standard 

reduces the objectivity of the EC analysis).) Indeed, plaintiff’s most recent suggestion that the 

advertisements at issue in Citizens United may not have been entirely political, contradicts its 

prior insistence that such advertisements were “‘equivalent’” to express advocacy. (Compare

Pl.’s Opp’n at 12 (referencing “the speech at issue in Citizens United: to the extent it was 

political at all” (emphasis added)), with V. Compl. ¶ 87; Pl.’s Summ. J. Mem. at 31 (labeling 

Citizens United’s ads as “‘pejorative’ equivalents of express advocacy”).) 

Moreover, debatable inferences like plaintiff has drawn regarding the movie ads at issue 

in Citizens United (see FEC Br. at 28-29) could similarly lead a person to conclude that 

plaintiff’s proposed advertisement is “campaign related.” For example, the Tenth Circuit 

concluded in Independence Institute II that “[a]n advertisement purporting merely to discuss an 

issue, while incidentally mentioning a candidate, can nonetheless be construed as ‘relating to’ the 

candidate’s campaign.” 812 F.3d at 796. That court of appeals further found that the similar 

advertisement underlying plaintiff’s analogous challenge in Independence Institute II “does not 

say much about Governor Hickenlooper, but it does insinuate, at minimum, that he has failed to 

take action on an issue that the Institute considers important. That could bear on his character or 

merits as a candidate.” Id. That court would appear likely to take the same position on the ad at 

issue in this case, viewing it as insinuating that Colorado’s senators, one of whom was up for reelection, have “failed to take action on” the issue of prison reform, which is “an issue that the 

Institute considers important.” Id. The simple EC test Congress enacted requires no comparable 

analysis.

Case 1:14-cv-01500-CKK-PAM-APM Document 48 Filed 09/02/16 Page 15 of 31
11

Independence Institute II not only highlights the lack of objectivity behind plaintiff’s 

latest legal position, it confirms that plaintiff’s reformulated argument remains foreclosed by 

Citizens United, because “[t]he logic of Citizens United is that advertisements that mention a 

candidate shortly before an election are deemed sufficiently campaign-related to implicate the 

government’s interests in disclosure.” Id. at 796. The Tenth Circuit emphasized the Supreme 

Court’s “near[] unanim[ity] in applying BCRA’s disclosure requirements both to Citizens 

United’s express advocacy and to ads that did not take a position on a candidacy.” Id.

Plaintiff purports to distinguish this case from Independence Institute II because the ad at 

issue here “encourages Coloradoans to contact both of the state’s U.S. senators, not merely the 

one running for re-election,” whereas the ad at issue in Independence Institute II urged viewers 

to contact only the incumbent governor who was up for re-election. (Pl.’s Opp’n at 7.) But 

recognizing that single distinction as dispositive would enable any organization to shield an EC 

from BCRA’s disclosure requirements simply by mentioning an additional person, who is not a 

candidate, in an otherwise regulable electioneering communication. The public’s important 

interest in knowing who is “speaking about a candidate shortly before an election” is not 

diminished simply because a pre-election communication that mentions a candidate also 

mentions someone else. Citizens United, 558 U.S. at 369.

Plaintiff also purports to distinguish the advertisement at issue in Independence Institute 

II as “suggest[ing] [the identified candidate’s] position on the issue being discussed.” (Pl.’s 

Opp’n at 7.) But to the extent that is true, the advertisement at issue here is no different. As the 

Commission previously explained (FEC Br. at 19), both proposed communications advocated a 

position on a policy issue (healthcare or prison reform) and urged viewers (or listeners) to 

contact an incumbent government official (Colorado’s Governor or United States Senator), who 

Case 1:14-cv-01500-CKK-PAM-APM Document 48 Filed 09/02/16 Page 16 of 31
12

was up for reelection at the time the ad would be aired, and tell him to support legislation in 

favor of the policy position Independence Institute was advocating in the advertisement. This 

case is exactly like Independence Institute II. And here too, “Citizens United is dispositive as to 

the constitutionality of [BCRA’s] disclosure laws as applied to the Institute’s ad.” Independence

Institute II, 812 F.3d at 799.

D. A Majority of the Courts of Appeals Have Confirmed that Citizens United

Precludes the “Issue Advocacy” Disclosure Exception Plaintiff Seeks Here 

In the FEC’s opening brief, the Commission cited recent decisions from nine of the 

United States circuit courts of appeals, including Independence Institute II discussed supra 

pp. 10-12, collectively relying on Citizens United in holding that various federal and state 

campaign finance disclosure provisions need not be limited to candidate advocacy to survive 

First Amendment scrutiny. (FEC Br. at 18-21 (collecting cases from the First, Second, Third, 

Fourth, Seventh, Ninth, Tenth, Eleventh, and D.C. Circuits).) Plaintiff claims these cases “are all 

inapposite” because they involve different parties and different disclosure provisions. (Pl.’s 

Opp’n at 10.) While that is barely true for Independence Institute II, see supra pp.10-12, the 

differences plaintiff identifies in the remaining decisions are all beside the point. Plaintiff does 

not, and cannot, dispute that each of these decisions recognized what plaintiff has refused to 

acknowledge: that Citizens United forecloses its attempt to exempt from disclosure an “issue 

advocacy” communication that mentions a federal candidate, in the period shortly before the 

election in which he is running, and that plaintiff seeks to broadcast in the jurisdiction where 

voters who may hear the ad will be deciding whether to cast their vote for the identified 

candidate. See, e.g., Del. Strong Families v. Attorney Gen. of Del., 793 F.3d 304, 308 (3d Cir. 

2015) (recognizing the Supreme Court’s “consistent[]” holdings that “there is not a ‘rigid barrier 

between express advocacy and so-called issue advocacy’” (quoting McConnell, 540 U.S. at 

Case 1:14-cv-01500-CKK-PAM-APM Document 48 Filed 09/02/16 Page 17 of 31
13

193)), cert. denied, 136 S. Ct. 2376 (2016); 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) (“[T]he distinction between issue 

discussion and express advocacy has no place in First Amendment review of . . . disclosureoriented laws.”); Human Life of Wash. Inc. v. Brumsickle, 624 F.3d 990, 1016 (9th Cir. 2010) 

(concluding, in light of Citizens United, that “the position that disclosure requirements cannot 

constitutionally reach issue advocacy is unsupportable”). 

The Commission also cited several courts of appeals opinions, including SpeechNow.org

v. FEC, 599 F.3d 686 (D.C. Cir. 2010) (en banc), to demonstrate that disclosure of the funders of 

ECs serves the important government interest in gathering data to detect violations of financing 

restrictions, including the prohibition on financing of ECs by foreign nationals. (FEC Br. at 14-

15.) Plaintiff made no argument in response.

E. Plaintiff is Unable to Distinguish the Analogous Cases Upholding Disclosure 

Requirements in the Context of Ballot Initiatives 

As the FEC previously explained (FEC Br. at 22-23), various court decisions upholding 

disclosure requirements regarding ballot-initiative activity further demonstrate the constitutional 

permissibility of applying disclosure requirements to what plaintiffs call “pure issue advocacy.”

Like “issue advocacy,” ballot-initiative activity is inherently issue-focused and does not have the 

same corruptive potential as spending to influence candidate elections. First Nat’l Bank of 

Boston v. Bellotti, 435 U.S. 765, 790 (1978) (“The risk of corruption perceived in cases 

involving candidate elections simply is not present in a popular vote on a public issue.” (footnote 

and citations omitted)); McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 352 n.15 (1995) 

Case 1:14-cv-01500-CKK-PAM-APM Document 48 Filed 09/02/16 Page 18 of 31
14

(quoting Bellotti). Plaintiff’s superficial attempt to distinguish ballot advocacy cases from this 

case because “ballot advocacy is unambiguously campaign related” (Pl.’s Opp’n at 16-17) is 

transparently deficient. The “campaign” to which ballot advocacy is related concerns an issue,

not a candidate, and thus does not present the same concerns about potential corruption of an 

elected official. Indeed, while the government’s informational interest in disclosure in the ballotadvocacy context is indisputably important, see, e.g., Doe v. Reed, 561 U.S. 186, 197-99 (2010); 

Buckley v. Am. Constitutional Law Found., Inc., 525 U.S. 182, 204 (1999); Worley v. Fla. Sec’y 

of State, 717 F.3d 1238, 1249 (11th Cir. 2013); FEC Br. at 22-23, that context does not implicate 

the particular interest applicable here in informing the public about who is “speaking about a 

candidate shortly before an election.” Citizens United, 558 U.S. at 369 (emphasis added). 

F. Citizens United Explicitly Supports the Commission’s Discussion of 

Analogous Cases Upholding Lobbying Disclosure Requirements

The dispositive disclosure holdings in McConnell and Citizens United are consistent with 

the nearly unanimous court decisions upholding disclosure requirements regarding 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, as

previously explained (FEC Br. at 24). Plaintiff criticizes the Commission’s discussion of United

States v. Harriss, 347 U.S. 612 (1954) (Pl.’s Opp’n at 17-18), because that case was decided in 

1954 and campaign finance laws have developed and evolved significantly since that time. 

While that is of course true, plaintiff ignores that the Supreme Court itself, in Citizens United,

invoked the Harriss decision as support for its holding that BCRA’s EC disclosure provision 

survives constitutional scrutiny. See Citizens United, 558 U.S. at 369 (citing past decisions in 

which the Court “has explained that disclosure is a less restrictive alternative to more 

comprehensive regulations of speech,” and invoking Harriss, 347 U.S. at 625, in which “the 

Case 1:14-cv-01500-CKK-PAM-APM Document 48 Filed 09/02/16 Page 19 of 31
15

Court . . . upheld registration and disclosure requirements on lobbyists, even though Congress 

has no power to ban lobbying itself”). Plaintiff’s failure to address the Supreme Court’s recent

reliance on Harriss in the specific context of upholding the disclosure provision plaintiff seeks to 

relitigate here undermines its attempt to minimize the significance of Harriss based on when that 

case was decided.

G. Plaintiff’s Tax Status is Irrelevant to the Question Whether BCRA’s EC 

Disclosure Requirement May Constitutionally Apply to Plaintiff’s Proposed 

Electioneering Communication 

1. Citizens United is Inconsistent with Plaintiff’s Tax-Status Argument 

 The nature of plaintiff’s registration as a non-profit organization under the federal tax 

code is irrelevant to the question whether BCRA’s EC disclosure requirement may 

constitutionally be applied to an advertisement that falls within BCRA’s objective and 

unambiguous definition of “electioneering communication.” (See FEC Br. at 29-32.) The 

majority opinion in Citizens United simply described that organization as “a nonprofit 

corporation,” Citizens United 558 U.S. at 319, a broad category that includes plaintiff 

Independence Institute as well. The Commission thus explained (FEC Br. at 29) that the 

Supreme Court in Citizens United neither explicitly nor implicitly suggested that its disclosure 

holding in that case was intended to be confined to any particular group of advertisers or subset 

of nonprofit corporations. If anything, the Court’s recognition in Citizens United of the 

importance of providing the public with access to information about who is “speaking about a 

candidate shortly before an election” is inconsistent with the categorical exception for certain 

nonprofit organizations that plaintiff advocates here. Citizens United, 558 U.S. at 369; see FEC

Br. at 29-30. Plaintiff fails to identify anything in Citizens United or any other opinion 

supporting its proposed tax-status-based limitation on BCRA’s EC disclosure requirement. 

Case 1:14-cv-01500-CKK-PAM-APM Document 48 Filed 09/02/16 Page 20 of 31
16

2. Plaintiff’s Tax-Status Argument Lacks Any Legal Basis 

The Internal Revenue Code does not require public disclosure of donors to section 

501(c)(3) non-profit groups like plaintiff or section 501(c)(4) groups like Citizens United. (FEC 

Br. at 31-32.) Plaintiff’s proposal to adopt separate campaign finance disclosure requirements 

for the two types of entities is premised entirely on the proposition that there are different taxlaw disclosure requirements for each, but there is no such discrepancy. (Id.) Plaintiff fails to 

squarely dispute the Commission’s showing on this and related points, including that an 

organization’s tax status generally is not dispositive regarding the organization’s compliance 

with other federal laws. (FEC Br. at 31 (citing cases).)

Plaintiff contends without any basis that “[t]ax law and Supreme Court precedent protect 

donors to § 501(c)(3) organizations to a greater extent than donors to § 501(c)(4) groups.” (Pl.’s 

Opp’n at 6-7.) Neither type of nonprofit organization, however, is obligated by federal tax law 

to make public disclosures regarding donors through the Internal Revenue Service, 26 U.S.C. 

§ 6104(d)(3)(A), as we have shown (see FEC Br. at 31-32). Plaintiff misleadingly cites the 

disclosure requirements for organizations with the major purpose of participating in elections, 

section 527 organizations (Pl.’s Opp’n at 6 & n.9), but nowhere substantiates the purported lack 

of protection from disclosure of 501(c)(4) donors relative to 501(c)(3) donors. Plaintiff also 

makes the unsupported claim that the tax code “abhors” disclosure generally (Pl.’s Opp’n at 6), 

but, as the Ninth Circuit has explained, federal tax-law provisions do not “create a pervasive 

scheme of privacy protections.” Ctr. for Competitive Politics v. Harris, 784 F.3d 1307, 1319 

(9th Cir. 2015) (“CCP”), cert. denied, 136 S. Ct. 480 (2015).

Similar to its inaccurate claim of varied donor disclosure requirements for different types 

of nonprofits, plaintiff continues to claim that past donor disclosure by Citizens United 

Case 1:14-cv-01500-CKK-PAM-APM Document 48 Filed 09/02/16 Page 21 of 31
17

differentiates it from Independence Institute. (Pl.'s Opp’n at 2-3.) But, as plaintiff itself has 

emphasized (see, e.g., Pl.’s Opp’n at 2; Pl.’s Summ. J. Mem. at 22), Citizens United is a section 

501(c)(4) nonprofit organization and is thus not required to disclose its donors publicly through 

tax filings. See 26 U.S.C. § 6104(d)(3). Contrary to plaintiff’s suggestion (Pl.’s Opp’n at 2-3 

n.3), the Supreme Court in Citizens United did not indicate that the plaintiff was disclosing its 

own donors; instead, the “donor disclosure” in the record before the Supreme Court concerned 

“approximately 1000 contributors” to Citizens United’s political committee, the Citizens United 

Political Victory Fund. Br. for Appellee at 49 n.17, Citizens United v. FEC, No. 08-205 (Feb. 

2009) (citing FEC disclosure reports filed by Citizens United Political Victory Fund), available

at http://www.fec.gov/law/litigation/citizens_united_sc_08_fec_brief.pdf.

Plaintiff also attempts to bolster its unsupported tax-status argument in its opposition 

brief by elaborating on the conditions an organization must satisfy to maintain a section 

501(c)(3) exemption, and detailing the penalties an organization could face under tax law if it 

engages in prohibited “‘political campaign intervention,’” which “may” include “‘any message 

favoring or opposing a candidate.’” (Pl.’s Opp’n at 4 (quoting tax regulations); see id. at 2-7.)

Plaintiff speculates (id. at 4) that it could accordingly suffer “reputational and enforcement risk” 

if someone misinterprets its compliance with BCRA’s separate EC disclosure requirement as an 

“implication . . . that the Institute has done something illegal” under the tax code. Such 

speculation, premised on anticipated unfamiliarity with distinctions between separate campaignfinance and tax provisions, is not a basis for finding BCRA’s EC disclosure requirement 

unconstitutional.4



4

 It is unremarkable that the scope of activities regulated by federal tax and campaign 

finance laws are not identical. See, e.g., Erika K. Lunder, L. Paige Whitaker, Congressional 

Research Service, 501(c)(3)s and Campaign Activity: Analysis Under Tax and Campaign 

Case 1:14-cv-01500-CKK-PAM-APM Document 48 Filed 09/02/16 Page 22 of 31
18

This court has already expressed concern over a rule that would “effective[ly] 

delegate[e]” to the IRS the FEC’s authority over campaign finance regulation in light of the fact 

that “the IRS in the past has not viewed Section 501(c)(3)’s ban on political activities to 

encompass activities that are so considered under FECA.” Shays v. FEC, 337 F. Supp. 2d 28, 

127-28 (D.D.C. 2004), aff’d, 414 F.3d 76 (D.C. Cir. 2005). And plaintiff’s speculation appears 

to be unfounded for the additional reason that section 501(c)(3) organizations, in fact, have 

engaged in extensive spending on ECs. (See FEC Br. at 31 (referencing hundreds of thousands 

of dollars in spending on electioneering communications by a 501(c)(3) organization).)

Plaintiffs do not respond directly to either of these points.

The Third Circuit Court of Appeals relied on the fundamental distinctions between 

campaign finance and tax law in rejecting another organization’s claim that its section 501(c)(3) 

status renders unconstitutional application of Delaware’s EC disclosure rule to that organization.

Del. Strong Families, 793 F.3d at 308. In Delaware Strong Families, the Court of Appeals held 

that there is “no compelling reason to defer to the § 501(c)(3) scheme in determining which 

communications require disclosure under” Delaware’s statutory provisions regulating ECs. Id.

Like plaintiff here, Delaware Strong Families emphasized its inability to engage in any political 

campaign by virtue of its status as a section 501(c)(3) nonprofit organization. Id. The Third 

Circuit found the organization’s tax status irrelevant: “[W]e conclude that it is the conduct of an 



Finance Laws, 7-8 (Sept 10, 2013), available at http://electionlawblog.org/wpcontent/uploads/CRS-Report-on-IRS-Line-Between-Issue-Advocacy-and-Campaign-Activity2013.pdf) (explaining different scope of IRC and FECA. As the CRS report recognizes, “an 

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 IRC.”

Id. Plaintiff contends without citation that the FECA definition of “electioneering 

communication” “would likely be relevant to” determinations regarding campaign intervention 

by the IRS (Pl.’s Opp’n at 4 n.5), but the IRS has indicated the opposite (see FEC Br. at 31). 

Case 1:14-cv-01500-CKK-PAM-APM Document 48 Filed 09/02/16 Page 23 of 31
19

organization, rather than an organization’s status with the Internal Revenue Service, that 

determines whether it makes communications subject to the Act.” Id. at 308-309.

Plaintiff does not even try to reconcile its tax-status argument with the holding in 

Delaware Strong Families. It emphasizes differences between its proposed advertisement and 

the voter guide at issue in Delaware Strong Families, and also notes that the Third Circuit 

“applied exacting scrutiny to the specific facts of that as-applied case.” (Pl.’s Opp’n at 8.) But 

such distinctions have nothing to do with the question whether the First Amendment requires that 

section 501(c)(3) organizations be categorically exempt from campaign finance disclosure 

requirements, as plaintiff advocates. The Third Circuit’s holding that tax-status is irrelevant to 

determining the constitutionality of a campaign finance provision was independent from the 

court’s analysis of whether the voter guide at issue in that case survived exacting scrutiny. In 

any event, as indicated supra pp. 12-13, plaintiff’s attempt to distinguish Delaware Strong 

Families ignores the Third Circuit’s directly relevant explanations regarding the constitutional 

scope of campaign finance disclosure requirements in light of McConnell and Citizens United.

793 F.3d at 308 (explaining that McConnell makes clear “there is not a ‘rigid barrier between 

express advocacy and so-called issue advocacy,” and that Citizens United “surely repudiated” 

any suggestion “that the Constitution limits the reach of disclosure to express advocacy or its 

functional equivalent”). 

In sum, none of plaintiff’s explanations about the requirements for maintaining a 

particular non-profit exemption under the tax code lends any support to its legal argument that 

the First Amendment requires the nature of a non-profit organization’s tax exemption to be 

determinative of whether that organization can be required to comply with BCRA’s disclosure 

requirement even for communications satisfying the statutory definition of an EC.

Case 1:14-cv-01500-CKK-PAM-APM Document 48 Filed 09/02/16 Page 24 of 31
20

II. PLAINTIFF STILL FAILS TO IDENTIFY ANY UNCONSTITUTIONAL 

BURDEN ARISING FROM THE EC DISCLOSURE REQUIREMENTS 

A. Plaintiff Has Stipulated and the Court Has Ordered that This Case Does Not 

Involve a “Reasonable Probability” of Threats, Harassment, or Reprisals 

As the Commission explained in its opening brief (FEC Br. at 37), Buckley, McConnell,

and Citizens United all recognized that as-applied challenges to disclosure requirements might be 

appropriate in a single situation: when an organization’s disclosure would result in a “reasonable 

probability” of “threats, harassment, or reprisals” of its members. Citizens United, 558 U.S. at 

367 (quoting McConnell, 540 U.S. at 198; Buckley, 424 U.S. at 74). The Commission also 

explained that the parties have stipulated and the Court has ordered that this case does not

involve any allegations or evidence that there is a “reasonable probability” that complying with 

BCRA’s EC disclosure requirements will subject plaintiff’s donors to any threats, harassment, or 

reprisals. ((FEC Br. at 37; Joint Stip. Of Parties and Order, ECF No. 14 (“Joint Stip.”).) To the 

extent plaintiff now seeks, in its final merits brief, to reverse course and suggest that such a 

probability may be present in this case, that approach is foreclosed by plaintiff’s own stipulation 

and the Court’s order. Compare Pl.’s Opp’n at 19 (stating that plaintiff “does not assert a

specifically higher risk of threats, harassment, or reprisals,” and claiming that disclosure 

presents a “general and universal danger of threats, harassment, and reprisals”), with Joint Stip. 

at 1 (stipulating that plaintiff “has neither alleged nor introduced any evidence — nor will it 

allege or introduce any evidence — that there is a reasonable probability that its donors would 

face threats, harassment, or reprisals if their names were disclosed as a result of plaintiff’s 

compliance with [BCRA’s EC] provision” (emphasis added)); Joint Status Report at 1, 2, ECF 

No. 34 (citing the parties’ September 10, 2014 Joint Stipulation and Proposed Order “limiting the 

Case 1:14-cv-01500-CKK-PAM-APM Document 48 Filed 09/02/16 Page 25 of 31
21

scope of the Plaintiff’s claims,” noting that “[t]he proposed Order was adopted by the Court,” 

and stating that “[t]he parties do not anticipate contested questions of material fact”).5

Plaintiff’s principal argument — that EC “[d]isclosure itself” is an unconstitutional 

burden (Pl.’s Opp’n at 19) — is similarly foreclosed by the Supreme Court’s campaign finance 

disclosure holdings, as one federal court of appeals recently recognized. In CCP, the Ninth 

Circuit Court of Appeal applied the Supreme Court’s Buckley decision to hold that CCP, an 

organization that 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 a state 

disclosure requirement, had “not demonstrated any ‘actual burden,’ . . . on its or its supporters’ 

First Amendment rights.” 784 F.3d at 1316 (citation omitted); see FEC Br. at 38.

Plaintiff attempts to distinguish CCP on the basis that it “is not a campaign finance case.” 

(Pl.’s Opp’n at 20.) But plaintiff ignores that the Ninth Circuit in CCP was responding to the 

same argument plaintiff presses here, i.e., that a “disclosure requirement alone constitutes 

significant First Amendment injury,” 784 F.3d at 1312, and that in so responding, the court of 

appeals found the Supreme Court’s campaign finance jurisprudence regarding the 

constitutionality of disclosure requirements to be “instructive,” id. at 1315. The court of appeals 

explained that Buckley had “left open the possibility” of challenging a campaign-finance 

disclosure requirement based on demonstrating “a reasonable probability that the compelled 



5

 Any attempt by plaintiff to escape its stipulation and the Court’s order at this late stage in 

the proceedings is plainly precluded by the doctrine of judicial estoppel. See, e.g., Moses v. 

Howard Univ. Hosp., 606 F.3d 789, 792 (D.C. Cir. 2010) (“Courts may invoke judicial estoppel 

‘[w]here a party assumes a certain position in a legal proceeding, . . . succeeds in maintaining 

that position, . . . [and then,] simply because his interests have changed, assume[s] a contrary 

position.’” (internal quotation marks omitted)); Zuckman v. Monster Beverage Corp., 958 F. 

Supp. 2d 293, 300 (D.D.C. 2013) (holding that a plaintiff’s affidavits and stipulations are binding 

under the doctrine of judicial estoppel). 

Case 1:14-cv-01500-CKK-PAM-APM Document 48 Filed 09/02/16 Page 26 of 31
22

disclosure of a party’s contributors’ names will subject them to threats, harassment, or reprisals,” 

id., but that “no case has ever held or implied that a disclosure requirement in and of itself 

constitutes First Amendment injury.” Id. at 1316.6

 That holding, premised on the Ninth 

Circuit’s interpretation and application of the Supreme Court’s campaign finance disclosure 

jurisprudence, is at least as instructive in this case, which concerns the constitutionality of a 

repeatedly upheld campaign finance disclosure requirement. 

B. The Voluntary Option to Finance ECs from a Separate Bank Account is Not 

an Unconstitutional Burden 

Plaintiff’s attempt (Pl.’s Opp’n at 21-22) to portray as an unconstitutional “burden” the 

voluntary option of limiting the scope of its disclosure requirements by financing its ECs from a 

separate bank account is plainly misguided. Neither BCRA nor FEC regulations require the use 

of a separate bank account and neither Congress nor the Commission has claimed an “interest in” 

the segregation of plaintiff’s funds. The statute and Commission regulations simply provide 

corporations and other groups that finance ECs with the discretionary alternative to pay for their 

ECs from a segregated bank account as a means of limiting the scope of disclosures they are 

required to make under BCRA. See 52 U.S.C. § 30104(f)(2)(E); 11 C.F.R. § 104.20(c)(7); FEC 

Br. 5-6, 7-8, 37-38. If plaintiff finds the separate bank account option to be “burdensome,” it 

need not elect that alternative means of financing its ECs. 



6

 Plaintiff’s attempt (Pl.’s Opp’n at 19-21 & n.25) to support its contrary argument by 

citing the dissenting opinion of Justice Thomas in Doe v. Reed, 561 U.S. 186 (2010), is 

surprising, because, in that case, like McConnell and Citizens United, eight justices agreed that 

the challenged disclosure requirements were constitutional. Indeed, Doe v. Reed confirms that 

as-applied challenges to disclosure requirements may be appropriate only when an organization’s 

disclosure would result in a “reasonable probability” of “threats, harassment, or reprisals” of its 

members. Id. at 200-01; see id. at 200 (“[T]hose resisting disclosure can prevail under the First 

Amendment if they can show a reasonable probability that the compelled disclosure [of personal 

information] will subject them to threats, harassment, or reprisals.” (emphasis added)). As the 

late Justice Scalia observed in his concurrence, “[r]equiring people to stand up in public for their 

political acts fosters civic courage, without which democracy is doomed.” Id. at 228. 

Case 1:14-cv-01500-CKK-PAM-APM Document 48 Filed 09/02/16 Page 27 of 31
23

The false comparison plaintiff attempts to draw between that discretionary option for 

financing ECs and the total ban on corporate- and union-financed expenditures that the Supreme 

Court struck down in Citizens United thus must be rejected. The provision invalidated in 

Citizens United prohibited corporations and unions from financing any independent expenditures 

or electioneering communications except through a connected political committee or “PAC.” 

See Citizens United, 558 U.S. at 337 (explaining that former 2 U.S.C. § 441(b) was “a ban on 

corporate speech notwithstanding the fact that a PAC created by a corporation can still speak”). 

The Court found that “the PAC exemption from § 441(b)’s expenditure ban . . . does not allow 

corporations to speak,” and that PACs are “burdensome alternatives” to the prohibited direct 

corporate speech, including through solicitation and source restrictions. Id. This case does not 

involve any prohibition of plaintiff’s speech, nor any limits on how and from whom donations 

may be solicited. Plaintiff is free to finance and distribute its proposed electioneering 

communication and the voluntary option to do so from a separate bank account is not remotely 

analogous to a rule banning plaintiff from financing ECs unless it does so from such an account. 

III. THE LEGALITY AND FEASIBILITY OF PLAINTIFF’S PREFERRED 

ALTERNATIVE DISCLOSURE RULE DOES NOT DEMONSTRATE THAT 

THE EXISTING RULE IS UNCONSTITUTIONAL 

Plaintiff devotes several pages of its opposition brief (Pl.’s Opp’n at 22-25) to an 

apparent effort to reassure the Court that its preferred reinterpretation of BCRA’s EC disclosure 

rule would be both constitutional and feasible. This misguided argument is flawed for at least 

three independent reasons. 

First, the argument is entirely irrelevant to the constitutional question presented in this 

case. Even if plaintiff could successfully demonstrate that an alternative definition of 

“electioneering communication” would be legally permissible and easy to implement, such a 

Case 1:14-cv-01500-CKK-PAM-APM Document 48 Filed 09/02/16 Page 28 of 31
24

demonstration would not advance its claim that the existing definition, which Congress chose 

and the Supreme Court has repeatedly upheld, does not satisfy intermediate scrutiny under the 

First Amendment. Cf. Brown v. Bd. of Ed., 347 U.S. 483, 495 (1954) (explaining that 

“consideration of appropriate relief [is] necessarily subordinated to the primary [constitutional] 

question”). As detailed in the FEC’s opening brief and above, the Supreme Court’s holdings in 

McConnell and Citizens United and various lower court decisions relying on the holdings in 

those cases confirm that the existing EC rule does survive First Amendment scrutiny.7

Second, plaintiff’s acceptance of BCRA’s back-up definition as “unquestionably 

constitutional” because it “has been blessed by the Supreme Court” (Pl.’s Opp’n at 7-8, 22) 

undermines its attempt in this case to relitigate a constitutional question that eight justices of the 

Supreme Court have directly and unambiguously answered twice. Plaintiff’s positions are 

irreconcilable. If plaintiff concedes that a footnote in McConnell about an analogous, separate 

provision of BCRA forecloses any question as to the constitutionality of BCRA’s back-up 

definition of “electioneering communication,” then it must also concede that its challenge to the 

existing EC requirements is foreclosed by the Supreme Court’s multi-page constitutional 

holdings in McConnell and Citizens United, in which the Court upheld the constitutionality of 



7

 Plaintiff’s irrelevant argument appears to be tied to its disingenuous attempt to 

distinguish Independence Institute II based on the absence of a readily available, pre-approved 

back-up definition for the Colorado law challenged in that case. Specifically, plaintiff has 

argued here (Pl.’s Opp’n at 7) that Independence Institute II is unlike this case in part because the 

Colorado EC provision, in contrast to BCRA, “did not and does not contain an unquestionably 

constitutional back-up definition.” (Id. at 7-8.) In its opposition brief here, plaintiff asserts that 

Colorado’s lack of a back-up definition for its EC provision created a “potential difficulty in 

determining a remedy” for plaintiff’s similar constitutional challenge to Colorado’s analogous 

EC rule. That position is contrary to the argument plaintiff pressed in Independence Institute II,

in which it asserted that “[t]he judiciary routinely countenances as-applied exceptions to 

otherwise vague or overbroad rules” and in the specific “campaign finance context, the courts 

have generally had little difficulty in fashioning bright line rules” to address constitutional 

concerns. Appellant’s Opening Br. at 51, Indep. Inst. II, No. 14-1463 (10th Cir. Jan. 7, 2015), 

ECF No. 01019366546.

Case 1:14-cv-01500-CKK-PAM-APM Document 48 Filed 09/02/16 Page 29 of 31
25

the EC disclosure requirement as applied to “the entire range” communications that fall within 

the existing definition, McConnell, 540 U.S. at 196, and subsequently reaffirmed the 

constitutional application of such requirements, Citizens United, 558 U.S. at 369. Under 

plaintiff’s own logic, this challenge must be rejected because the EC provision that plaintiff 

seeks to relitigate here “already enjoys the Supreme Court’s approval.” (Pl.’s Opp’n at 22 (citing 

McConnell).) 

 Third and finally, plaintiff’s arguments in favor an alternative definition for all

electioneering communications belie its insistence that this action merely involves claims that the 

EC disclosure requirement “cannot be constitutionally applied to [plaintiff’s] intended speech.” 

(Compare Pl.’s Opp’n at 22-23 (arguments in favor of back-up EC definition), with id. at 1 & n.1 

(insistence that this challenge is “as-applied”).) In its opposition brief, plaintiff explicitly urges 

the Court to invalidate the existing definition of “electioneering communication” and issue a 

“ruling narrowing the field of political regulation.” (Pl.’s Opp’n at 23.) Such a ruling would not 

be limited to the particular advertisement at issue in this case and for this independent reason, 

plaintiff’s attempt to challenge BCRA’s EC definition is foreclosed by McConnell, 540 U.S. at 

196. (See FEC Br. at 18 n.4.)

CONCLUSION 

For the foregoing reasons, and those in the FEC’s Memorandum in Support of its Motion 

for Summary Judgment, the Court should grant the Commission’s motion for summary 

judgment, deny plaintiffs’ motion for summary judgment, and award judgment to the 

Commission. 

 Respectfully submitted, 

Daniel A. Petalas (D.C. Bar No. 467908) 

Acting General Counsel 

dpetalas@fec.gov

Case 1:14-cv-01500-CKK-PAM-APM Document 48 Filed 09/02/16 Page 30 of 31
26

September 2, 2016 

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

Deputy General Counsel — Law 

lstevenson@fec.gov

Kevin Deeley 

Associate General Counsel 

kdeeley@fec.gov

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

Acting Assistant General Counsel 

echlopak@fec.gov

/s/ Greg J. Mueller

Greg J. Mueller (D.C. Bar No. 462840) 

Attorney 

gmueller@fec.gov 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION

999 E Street, N.W. 

Washington, DC 20463 

(202) 694-1650 

Case 1:14-cv-01500-CKK-PAM-APM Document 48 Filed 09/02/16 Page 31 of 31